24CA1610 Peo v Garcia-Cerda 01-29-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1610 Weld County District Court No. 18CR917 Honorable Allison J. Esser, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leroy Garcia-Cerda, Jr.,
Defendant-Appellant.
ORDER AFFIRMED IN PART AND VACATED IN PART
Division III Opinion by JUDGE MOULTRIE Dunn and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 29, 2026
Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Denver, Colorado, for Plaintiff-Appellee
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Leroy Garcia-Cerda, Jr., appeals the postconviction
court’s order denying his motion for postconviction relief. We affirm
the order in part and vacate it in part.
I. Background
¶2 As a result of a jury trial and a plea agreement, Garcia-Cerda
was convicted of two counts of first degree assault, one count of
second degree assault, three counts of possession of a controlled
substance, one count of carrying a concealed weapon, three counts
of possession of a weapon by previous offender, one count of
violation of a protection order, one count of violation of bail bond
conditions, one count of resisting arrest, and a special offender
count. The district court adjudicated Garcia-Cerda a habitual
criminal.
¶3 At the sentencing hearing, defense counsel argued that a
lengthy habitual criminal sentence would be unconstitutionally
disproportionate to the severity of Garcia-Cerda’s crimes. Before
imposing sentence, the court stated that it had conducted a
proportionality review of the habitual criminal sentences and found
that the sentences weren’t grossly disproportionate. The court
sentenced Garcia-Cerda to an aggregate term of 128 years in
1 prison. A division of this court affirmed the judgment of conviction.
See People v. Garcia-Cerda, Jr., (Colo. App. No. 19CA2069, Feb. 17,
2022) (not published pursuant to C.A.R. 35(e)).
¶4 Garcia-Cerda later filed three pro se motions: (1) a motion to
appoint alternate defense counsel (ADC) to assist him in seeking
postconviction relief based on ineffective assistance of the public
defender; (2) a motion for loan of the court record to assist him in
filing a postconviction motion to raise ineffective assistance claims;
and (3) a Crim. P. 35(b) motion for reduction of sentence.
¶5 The postconviction court liberally construed these pro se
motions as substantively raising a Crim. P. 35(b) request for
sentence reconsideration and Crim. P. 35(c) ineffective assistance of
counsel claims. But, despite finding that Garcia-Cerda’s assertions
“[we]re insufficient . . . to determine whether there are facts that, if
true, would entitle him to relief under 35(c),” the court appointed
ADC to represent Garcia-Cerda. See Crim. P. 35(c)(3)(IV) (“If the
motion and the files and record of the case show to the satisfaction
of the court that the defendant [isn’t] entitled to relief, the court
shall enter written findings of fact and conclusions of law in
denying the motion.”); People v. Segura, 2024 CO 70, ¶¶ 4, 7 (Only
2 if “at least one claim has arguable merit . . . must [the court] grant
the request for postconviction counsel and forward a complete copy
of the [Crim. P. 35(c)] motion to the prosecution and the [public
defender].”).
¶6 ADC then filed a supplemental motion, which expanded on
Garcia-Cerda’s Crim. P. 35(b) request for sentence reconsideration
and added a request for a proportionality review of his sentences.
In an August 2023 order, the postconviction court denied “[a]ny
claim pursuant to 35(c)” and instructed the prosecution to respond
to Garcia-Cerda’s requests for Crim. P. 35(b) relief and a
proportionality review. After receiving the prosecution’s response,
the court set the matter for a hearing on those issues.
¶7 At the hearing, the prosecutor argued, among other things,
that Garcia-Cerda wasn’t entitled to a postconviction proportionality
review because he had already received a proportionality review at
his sentencing hearing. The postconviction court took the matter
under advisement and, in a July 2024 order, found that, because
he received a proportionality review at sentencing, Garcia-Cerda
wasn’t entitled to a postconviction proportionality review. The court
3 also found that his sentences were appropriate and that Garcia-
Cerda was therefore not entitled to Crim. P. 35(b) relief.1
II. Analysis
¶8 Garcia-Cerda first contends that the postconviction court
erred by preemptively denying his Crim. P. 35(c) claims in its
August 2023 order. Specifically, he argues that his pro se motions
only indicated an intent to assert, but didn’t actually raise, Crim. P.
35(c) ineffective assistance claims. Garcia-Cerda asserts that he
will be prejudiced by the court’s action because any future Crim. P.
35(c) claim would be subject to the successiveness procedural bar.
See Crim. P. 35(c)(3)(VI), (VII).
¶9 We conclude that the postconviction court erred by ruling on
any purported Crim. P. 35(c) claims that weren’t before it.
¶ 10 In its August 2023 order, the court found that neither Garcia-
Cerda’s pro se motions nor ADC’s supplemental motion contained
any allegations of ineffective assistance of counsel. Thus, in the
absence of such allegations, there wasn’t a claim on which the
court was required to rule. Accordingly, we vacate the portion of
1 Garcia-Cerda doesn’t challenge the court’s denial of his Crim. P.
35(b) request for sentence reconsideration.
4 the postconviction court’s August 2023 order that denied any pro se
Crim. P. 35(c) claim that was not properly at issue.
¶ 11 Garcia-Cerda next argues that, in its July 2024 order, the
postconviction court erred by finding that he was not entitled to a
proportionality review. We disagree.
¶ 12 As an initial matter, we reject Garcia-Cerda’s assertion that
his postconviction proportionality review request is cognizable
under Crim. P. 35(a). A postconviction request for a proportionality
review is cognizable as a constitutional challenge to a sentence
under Crim. P. 35(c).2 People v. Crawley, 2024 COA 49, ¶ 7. A
court must deny a Crim. P. 35(c) claim that was, or could have
been, raised and resolved in a prior appeal or postconviction
proceeding on behalf of the same defendant. Crim. P. 35(c)(3)(VI),
(VII).
¶ 13 Here, because Garcia-Cerda requested, and the district court
conducted, a proportionality review at the sentencing hearing, and
2 In its August 2023 order, the postconviction court denied “[a]ny
claim pursuant to 35(c)” but then proceeded to address Garcia- Cerda’s request for a proportionality review. It’s unclear whether the court thought the request was cognizable under Crim. P. 35(b) or another Rule.
5 because he could have, but didn’t, seek review of that decision on
direct appeal, we conclude that the postconviction court was
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24CA1610 Peo v Garcia-Cerda 01-29-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1610 Weld County District Court No. 18CR917 Honorable Allison J. Esser, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leroy Garcia-Cerda, Jr.,
Defendant-Appellant.
ORDER AFFIRMED IN PART AND VACATED IN PART
Division III Opinion by JUDGE MOULTRIE Dunn and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 29, 2026
Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Denver, Colorado, for Plaintiff-Appellee
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Leroy Garcia-Cerda, Jr., appeals the postconviction
court’s order denying his motion for postconviction relief. We affirm
the order in part and vacate it in part.
I. Background
¶2 As a result of a jury trial and a plea agreement, Garcia-Cerda
was convicted of two counts of first degree assault, one count of
second degree assault, three counts of possession of a controlled
substance, one count of carrying a concealed weapon, three counts
of possession of a weapon by previous offender, one count of
violation of a protection order, one count of violation of bail bond
conditions, one count of resisting arrest, and a special offender
count. The district court adjudicated Garcia-Cerda a habitual
criminal.
¶3 At the sentencing hearing, defense counsel argued that a
lengthy habitual criminal sentence would be unconstitutionally
disproportionate to the severity of Garcia-Cerda’s crimes. Before
imposing sentence, the court stated that it had conducted a
proportionality review of the habitual criminal sentences and found
that the sentences weren’t grossly disproportionate. The court
sentenced Garcia-Cerda to an aggregate term of 128 years in
1 prison. A division of this court affirmed the judgment of conviction.
See People v. Garcia-Cerda, Jr., (Colo. App. No. 19CA2069, Feb. 17,
2022) (not published pursuant to C.A.R. 35(e)).
¶4 Garcia-Cerda later filed three pro se motions: (1) a motion to
appoint alternate defense counsel (ADC) to assist him in seeking
postconviction relief based on ineffective assistance of the public
defender; (2) a motion for loan of the court record to assist him in
filing a postconviction motion to raise ineffective assistance claims;
and (3) a Crim. P. 35(b) motion for reduction of sentence.
¶5 The postconviction court liberally construed these pro se
motions as substantively raising a Crim. P. 35(b) request for
sentence reconsideration and Crim. P. 35(c) ineffective assistance of
counsel claims. But, despite finding that Garcia-Cerda’s assertions
“[we]re insufficient . . . to determine whether there are facts that, if
true, would entitle him to relief under 35(c),” the court appointed
ADC to represent Garcia-Cerda. See Crim. P. 35(c)(3)(IV) (“If the
motion and the files and record of the case show to the satisfaction
of the court that the defendant [isn’t] entitled to relief, the court
shall enter written findings of fact and conclusions of law in
denying the motion.”); People v. Segura, 2024 CO 70, ¶¶ 4, 7 (Only
2 if “at least one claim has arguable merit . . . must [the court] grant
the request for postconviction counsel and forward a complete copy
of the [Crim. P. 35(c)] motion to the prosecution and the [public
defender].”).
¶6 ADC then filed a supplemental motion, which expanded on
Garcia-Cerda’s Crim. P. 35(b) request for sentence reconsideration
and added a request for a proportionality review of his sentences.
In an August 2023 order, the postconviction court denied “[a]ny
claim pursuant to 35(c)” and instructed the prosecution to respond
to Garcia-Cerda’s requests for Crim. P. 35(b) relief and a
proportionality review. After receiving the prosecution’s response,
the court set the matter for a hearing on those issues.
¶7 At the hearing, the prosecutor argued, among other things,
that Garcia-Cerda wasn’t entitled to a postconviction proportionality
review because he had already received a proportionality review at
his sentencing hearing. The postconviction court took the matter
under advisement and, in a July 2024 order, found that, because
he received a proportionality review at sentencing, Garcia-Cerda
wasn’t entitled to a postconviction proportionality review. The court
3 also found that his sentences were appropriate and that Garcia-
Cerda was therefore not entitled to Crim. P. 35(b) relief.1
II. Analysis
¶8 Garcia-Cerda first contends that the postconviction court
erred by preemptively denying his Crim. P. 35(c) claims in its
August 2023 order. Specifically, he argues that his pro se motions
only indicated an intent to assert, but didn’t actually raise, Crim. P.
35(c) ineffective assistance claims. Garcia-Cerda asserts that he
will be prejudiced by the court’s action because any future Crim. P.
35(c) claim would be subject to the successiveness procedural bar.
See Crim. P. 35(c)(3)(VI), (VII).
¶9 We conclude that the postconviction court erred by ruling on
any purported Crim. P. 35(c) claims that weren’t before it.
¶ 10 In its August 2023 order, the court found that neither Garcia-
Cerda’s pro se motions nor ADC’s supplemental motion contained
any allegations of ineffective assistance of counsel. Thus, in the
absence of such allegations, there wasn’t a claim on which the
court was required to rule. Accordingly, we vacate the portion of
1 Garcia-Cerda doesn’t challenge the court’s denial of his Crim. P.
35(b) request for sentence reconsideration.
4 the postconviction court’s August 2023 order that denied any pro se
Crim. P. 35(c) claim that was not properly at issue.
¶ 11 Garcia-Cerda next argues that, in its July 2024 order, the
postconviction court erred by finding that he was not entitled to a
proportionality review. We disagree.
¶ 12 As an initial matter, we reject Garcia-Cerda’s assertion that
his postconviction proportionality review request is cognizable
under Crim. P. 35(a). A postconviction request for a proportionality
review is cognizable as a constitutional challenge to a sentence
under Crim. P. 35(c).2 People v. Crawley, 2024 COA 49, ¶ 7. A
court must deny a Crim. P. 35(c) claim that was, or could have
been, raised and resolved in a prior appeal or postconviction
proceeding on behalf of the same defendant. Crim. P. 35(c)(3)(VI),
(VII).
¶ 13 Here, because Garcia-Cerda requested, and the district court
conducted, a proportionality review at the sentencing hearing, and
2 In its August 2023 order, the postconviction court denied “[a]ny
claim pursuant to 35(c)” but then proceeded to address Garcia- Cerda’s request for a proportionality review. It’s unclear whether the court thought the request was cognizable under Crim. P. 35(b) or another Rule.
5 because he could have, but didn’t, seek review of that decision on
direct appeal, we conclude that the postconviction court was
required to deny the claim as successive.3 See People v. McDonald,
2023 COA 23, ¶¶ 8, 24 (a postconviction request for a
proportionality review is subject to Crim. P. 35(c)’s procedural bars),
aff’d, 2024 CO 75, ¶ 34; see also People v. Hamm, 2019 COA 90,
¶ 23 (“[W]e will affirm a district court’s denial of a Rule 35 motion
on any ground supported by the record, even if the district court did
not consider or contemplate that ground.”).
¶ 14 To the extent Garcia-Cerda asserts that he is entitled to a
proportionality review based on the new standard set forth in Wells-
Yates v. People, 2019 CO 90M, because that case doesn’t apply
retroactively, McDonald, 2024 CO 75, ¶¶ 1, 34-35, we aren’t
persuaded. See § 18-1-410(1)(f)(I)-(II), C.R.S. 2025 (A defendant
may not seek postconviction review based on a claim “[t]hat there
has been significant change in the law, applied to the applicant’s
3 Garcia-Cerda also argues against the application of collateral
estoppel and the law of the case doctrine. Because the successiveness procedural bar applies, we need not address these additional arguments. See People v. Sanders, 2023 CO 62, ¶ 19 (declining to address an issue that was unnecessary to the resolution of the appeal).
6 conviction or sentence, allowing in the interests of justice
retroactive application of the changed legal standard” if, “prior to
filing for relief pursuant to this paragraph (f), . . . a judgment of
conviction has been affirmed upon appeal.”). We therefore affirm
the portion of the postconviction court’s July 2024 order that
denied Garcia-Cerda’s request for a proportionality review of his
sentence.
III. Disposition
¶ 15 The order is affirmed in part and vacated in part.
JUDGE DUNN and JUDGE BERNARD concur.