24CA1839 Peo v Galloway 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1839 El Paso County District Court No. 16CR2749 Honorable Gregory R. Werner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Glen Law Galloway,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Glen Law Galloway, Pro Se ¶1 Defendant, Glen Law Galloway, appeals the district court’s
order denying his postconviction motion to vacate the order
requiring him to pay the costs of his prosecution. We affirm, albeit
on different grounds than those relied on by the district court. See
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (noting that
appellate court may affirm district court order on different grounds).
I. Background
¶2 Galloway was convicted of first degree murder after
deliberation, among other offenses, and the prosecution sought the
death penalty. In the first phase of the death penalty proceedings,
the jury found that the prosecution had proved three of the four
alleged aggravating factors beyond a reasonable doubt. But in the
second phase, the jury did not find beyond a reasonable doubt that
the mitigating factors did not outweigh the aggravating factors, thus
precluding imposition of the death penalty. At Galloway’s request,
the court immediately sentenced him to the statutorily mandated
sentence of life in prison without the possibility of parole.
¶3 Approximately two and a half months later, the prosecution
filed a motion for reimbursement of prosecution costs. Galloway
1 did not object, and the district court granted the prosecution’s
motion, ordering Galloway to pay approximately $133,000 in total.
¶4 Galloway challenged the order assessing prosecution costs in
his direct appeal, arguing that the district court erred by including
costs related to the capital sentencing proceedings even though the
jury rejected the death penalty. As relevant to this case, a division
of this court concluded that because costs of prosecution are not
part of a sentence, Galloway’s challenge to the cost order was not
an illegal sentence claim under Crim. P. 35(a). People v. Galloway,
slip. op. at ¶¶ 126, 128 (Colo. App. No. 18CA1580, Feb. 16, 2023)
(not published pursuant to C.A.R. 35(e)) (citing People v. Howell, 64
P.3d 894, 899-900 (Colo. App. 2002)). And because Galloway did
not object to the motion for costs of prosecution, the division
reviewed Galloway’s contentions for plain error and concluded that
any error regarding the costs of prosecution was not obvious and
therefore did not constitute plain error. Galloway, ¶¶ 128, 130.
¶5 Galloway then filed a motion to vacate the cost order under
Crim. P. 35(a), characterizing his claim as one to correct a sentence
imposed in an illegal manner. He argued that the district court
(1) lacked jurisdiction to impose the costs of prosecution after
2 entering the judgment of conviction and (2) erred by failing to excise
the costs allocable to the death penalty phase of the proceeding
when Galloway had been “acquitted” of the death penalty.
¶6 The district court denied the motion. It explained that
Galloway’s legal argument that the order for costs must be entered
at the same time as the judgment of conviction had been rejected in
People v. Scroggins, 240 P.3d 331, 333 (Colo. App. 2009), and that
Galloway did not cite any authority indicating that the failure to do
so deprived the court of jurisdiction to do so later. The court also
rejected Galloway’s premise that the jury had “acquitted” him of the
death penalty because the death penalty is a sentence, not a crime.
II. Analysis
¶7 Galloway argues on appeal, as he did in his direct appeal and
his postconviction motion, that (1) the district court lacked
jurisdiction to assess the costs of prosecution after entering the
judgment of conviction, and (2) the court erred by not reducing the
assessed costs by the amount allocable to the death penalty phase
of the proceeding because he was “acquitted” of the death penalty.
3 ¶8 Because we conclude that Galloway’s claim is not cognizable
under Crim. P. 35(a) and would be successive as a Crim. P. 35(c)
claim, the district court did not err by denying the motion.
A. Standard of Review and Applicable Law
¶9 We review de novo the denial of a postconviction motion
without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
¶ 10 The substance of a postconviction motion controls whether it
falls under Crim. P. 35(a) or Crim. P. 35(c). People v. Collier, 151
P.3d 668, 670 (Colo. App. 2006). As relevant in this case, Crim.
P. 35(a) allows a court to correct a sentence imposed in an illegal
manner — that is, when the district court “ignores essential
procedural rights or statutory considerations in forming the
sentence.” People v. Tennyson, 2025 CO 31, ¶ 29 (citation omitted).
A claim arises under Crim. P. 35(c) when, among other things, the
defendant asserts “[a]ny grounds otherwise properly the basis for
collateral attack upon a criminal judgment.” Crim. P. 35(c)(2)(VI).
B. Galloway’s Claim Is Not a Crim. P. 35(a) Illegal Manner Claim
¶ 11 Galloway characterizes his claim as a Crim. P. 35(a) claim that
his sentence was imposed in an illegal manner. We disagree.
4 ¶ 12 Costs of prosecution are not part of a defendant’s sentence.
See People v. Cichuniec, 2025 COA 33, ¶ 29; Howell, 64 P.3d at 899-
900. Rather, costs are “primarily a civil sanction.” Howell, 64 P.3d
at 900; see also § 18-1.3-701(1), C.R.S. 2025 (providing that
judgment for costs “are enforceable in the same manner as are civil
judgments”). Indeed, the division in Galloway’s direct appeal so
held, concluding that because prosecution costs are not part of the
sentence, Galloway’s challenge to those costs was not an illegal
sentence claim that could be raised at any time. Galloway, ¶ 128.
¶ 13 By the same reasoning, because costs of prosecution are not
part of a defendant’s sentence, a postconviction challenge to the
imposition of such costs is not a challenge to the manner in which a
sentence is imposed. Thus, we conclude that Galloway’s claims are
not properly construed as Crim. P. 35(a) illegal manner claims.
C. As Crim. P. 35(c) Claims, Galloway’s Claims Are Successive
¶ 14 Although costs of prosecution are not part of the sentence,
Crim. P. 32(b)(3)(I) provides that the “judgment of conviction”
includes “costs, if any are assessed against the defendant.” And as
noted above, Crim. P. 35(c)(2)(VI) allows a defendant to assert
grounds for “collateral attack upon a criminal judgment.”
5 ¶ 15 But even assuming that Galloway’s claim could be cognizable
under Crim. P. 35(c) — a point we do not decide — the court must
deny a Crim. P.
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24CA1839 Peo v Galloway 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1839 El Paso County District Court No. 16CR2749 Honorable Gregory R. Werner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Glen Law Galloway,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Glen Law Galloway, Pro Se ¶1 Defendant, Glen Law Galloway, appeals the district court’s
order denying his postconviction motion to vacate the order
requiring him to pay the costs of his prosecution. We affirm, albeit
on different grounds than those relied on by the district court. See
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (noting that
appellate court may affirm district court order on different grounds).
I. Background
¶2 Galloway was convicted of first degree murder after
deliberation, among other offenses, and the prosecution sought the
death penalty. In the first phase of the death penalty proceedings,
the jury found that the prosecution had proved three of the four
alleged aggravating factors beyond a reasonable doubt. But in the
second phase, the jury did not find beyond a reasonable doubt that
the mitigating factors did not outweigh the aggravating factors, thus
precluding imposition of the death penalty. At Galloway’s request,
the court immediately sentenced him to the statutorily mandated
sentence of life in prison without the possibility of parole.
¶3 Approximately two and a half months later, the prosecution
filed a motion for reimbursement of prosecution costs. Galloway
1 did not object, and the district court granted the prosecution’s
motion, ordering Galloway to pay approximately $133,000 in total.
¶4 Galloway challenged the order assessing prosecution costs in
his direct appeal, arguing that the district court erred by including
costs related to the capital sentencing proceedings even though the
jury rejected the death penalty. As relevant to this case, a division
of this court concluded that because costs of prosecution are not
part of a sentence, Galloway’s challenge to the cost order was not
an illegal sentence claim under Crim. P. 35(a). People v. Galloway,
slip. op. at ¶¶ 126, 128 (Colo. App. No. 18CA1580, Feb. 16, 2023)
(not published pursuant to C.A.R. 35(e)) (citing People v. Howell, 64
P.3d 894, 899-900 (Colo. App. 2002)). And because Galloway did
not object to the motion for costs of prosecution, the division
reviewed Galloway’s contentions for plain error and concluded that
any error regarding the costs of prosecution was not obvious and
therefore did not constitute plain error. Galloway, ¶¶ 128, 130.
¶5 Galloway then filed a motion to vacate the cost order under
Crim. P. 35(a), characterizing his claim as one to correct a sentence
imposed in an illegal manner. He argued that the district court
(1) lacked jurisdiction to impose the costs of prosecution after
2 entering the judgment of conviction and (2) erred by failing to excise
the costs allocable to the death penalty phase of the proceeding
when Galloway had been “acquitted” of the death penalty.
¶6 The district court denied the motion. It explained that
Galloway’s legal argument that the order for costs must be entered
at the same time as the judgment of conviction had been rejected in
People v. Scroggins, 240 P.3d 331, 333 (Colo. App. 2009), and that
Galloway did not cite any authority indicating that the failure to do
so deprived the court of jurisdiction to do so later. The court also
rejected Galloway’s premise that the jury had “acquitted” him of the
death penalty because the death penalty is a sentence, not a crime.
II. Analysis
¶7 Galloway argues on appeal, as he did in his direct appeal and
his postconviction motion, that (1) the district court lacked
jurisdiction to assess the costs of prosecution after entering the
judgment of conviction, and (2) the court erred by not reducing the
assessed costs by the amount allocable to the death penalty phase
of the proceeding because he was “acquitted” of the death penalty.
3 ¶8 Because we conclude that Galloway’s claim is not cognizable
under Crim. P. 35(a) and would be successive as a Crim. P. 35(c)
claim, the district court did not err by denying the motion.
A. Standard of Review and Applicable Law
¶9 We review de novo the denial of a postconviction motion
without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
¶ 10 The substance of a postconviction motion controls whether it
falls under Crim. P. 35(a) or Crim. P. 35(c). People v. Collier, 151
P.3d 668, 670 (Colo. App. 2006). As relevant in this case, Crim.
P. 35(a) allows a court to correct a sentence imposed in an illegal
manner — that is, when the district court “ignores essential
procedural rights or statutory considerations in forming the
sentence.” People v. Tennyson, 2025 CO 31, ¶ 29 (citation omitted).
A claim arises under Crim. P. 35(c) when, among other things, the
defendant asserts “[a]ny grounds otherwise properly the basis for
collateral attack upon a criminal judgment.” Crim. P. 35(c)(2)(VI).
B. Galloway’s Claim Is Not a Crim. P. 35(a) Illegal Manner Claim
¶ 11 Galloway characterizes his claim as a Crim. P. 35(a) claim that
his sentence was imposed in an illegal manner. We disagree.
4 ¶ 12 Costs of prosecution are not part of a defendant’s sentence.
See People v. Cichuniec, 2025 COA 33, ¶ 29; Howell, 64 P.3d at 899-
900. Rather, costs are “primarily a civil sanction.” Howell, 64 P.3d
at 900; see also § 18-1.3-701(1), C.R.S. 2025 (providing that
judgment for costs “are enforceable in the same manner as are civil
judgments”). Indeed, the division in Galloway’s direct appeal so
held, concluding that because prosecution costs are not part of the
sentence, Galloway’s challenge to those costs was not an illegal
sentence claim that could be raised at any time. Galloway, ¶ 128.
¶ 13 By the same reasoning, because costs of prosecution are not
part of a defendant’s sentence, a postconviction challenge to the
imposition of such costs is not a challenge to the manner in which a
sentence is imposed. Thus, we conclude that Galloway’s claims are
not properly construed as Crim. P. 35(a) illegal manner claims.
C. As Crim. P. 35(c) Claims, Galloway’s Claims Are Successive
¶ 14 Although costs of prosecution are not part of the sentence,
Crim. P. 32(b)(3)(I) provides that the “judgment of conviction”
includes “costs, if any are assessed against the defendant.” And as
noted above, Crim. P. 35(c)(2)(VI) allows a defendant to assert
grounds for “collateral attack upon a criminal judgment.”
5 ¶ 15 But even assuming that Galloway’s claim could be cognizable
under Crim. P. 35(c) — a point we do not decide — the court must
deny a Crim. P. 35(c) claim that was raised and resolved in a prior
appeal or that could have been presented in a prior appeal (subject
to exceptions not applicable here). Crim. P. 35(c)(3)(VI), (VII).
¶ 16 Galloway’s challenge to the imposition of prosecution costs
was raised and resolved in his direct appeal. In rejecting that
challenge, the division concluded that (1) “there are no time limits
for assessing costs,” and (2) the district court did not reversibly err
by assessing costs associated with the death penalty phase of the
proceeding. Galloway, ¶¶ 127, 130. And to the extent Galloway did
not specifically argue in his direct appeal that the district court
lacked jurisdiction to impose costs after entering the judgment of
conviction, he could have. See Crim. P. 35(c)(3)(VII).1
1 Crim. P. 35(c)(3)(VII) includes an exception for “[a]ny claim that
the sentencing court lacked subject matter jurisdiction.” (Emphasis added.) But as noted above, costs are not part of the sentence. See People v. Cichuniec, 2025 COA 33, ¶ 29. In any event, even if this claim were not successive, it would fail on the merits because costs need not be assessed at the time of the conviction and sentence. See People v. Scoggins, 240 P.3d 331, 333 (Colo. App. 2009).
6 ¶ 17 Thus, construed as a Crim. P. 35(c) claim, Galloway’s claim
was required to be denied as successive.
III. Disposition
¶ 18 The order is affirmed.
JUDGE GROVE and JUDGE YUN concur.