Peo v. Garrett

• Court: Colorado Court of Appeals
• Decided: November 21, 2024
• Docket: 23CA0807
• Status: Unknown

Opinion

23CA0807 Peo v Garrett 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0807 El Paso County District Court No. 12CR2344 Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shane Erik Garrett,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE BROWN Welling and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for Defendant-Appellant ¶1 Defendant, Shane Erik Garrett, appeals the district court’s

order denying his second Crim. P. 35(b) motion for reduction of

sentence. We affirm.

I. Background

¶2 A jury found Garrett guilty of two counts of identity theft,

possession of methamphetamine, second degree burglary,

conspiracy to commit second degree burglary, theft, and possession

of burglary tools. The district court subsequently adjudicated

Garrett a habitual criminal, denied his request for an extended

proportionality review of his sentence, and sentenced him to a

controlling forty-eight-year prison sentence.

¶3 A division of this court affirmed the judgment of conviction

and sentence. See People v. Garrett, (Colo. App. No. 13CA1174,

Sept. 10, 2015) (not published pursuant to C.A.R. 35(f)). The

mandate issued in March 2016. After his conviction became final

on appeal, Garrett filed a timely Crim. P. 35(b) motion for reduction

of sentence, which the postconviction court denied.

¶4 In 2017, Garrett filed a Crim. P. 35(c) motion for

postconviction relief, which the postconviction court denied after an

evidentiary hearing. A division of this court affirmed the order. See

1 People v. Garrett, (Colo. App. No. 19CA1381, Apr. 28, 2022) (not

published pursuant to C.A.R. 35(e)) (Garrett II). The mandate

issued on December 12, 2022.

¶5 On April 14, 2023, Garrett filed a second Crim. P. 35(b) motion

for reduction of sentence, which he argued was timely filed following

the issuance of the mandate in Garrett II. The postconviction court

denied the motion, concluding that it was untimely under People v.

Akins, which held that the affirmance of an order denying a Crim.

P. 35(c) motion does not extend the timeframe within which a Crim.

P. 35(b) motion may be filed. 662 P.2d 486, 488 (Colo. 1983). The

postconviction court nevertheless considered the merits of the

motion and held that, while Garrett “ha[d] made progress in his

rehabilitation,” “the circumstances of the offense and prior criminal

history indicate[d] that the sentence imposed was and remain[ed]

appropriate.”

II. Garrett’s Crim. P. 35(b) Motion Was Not Timely

¶6 Garrett appeals, arguing that the postconviction court erred by

denying his motion as untimely and failing to consider all the

information he submitted in support of the motion. Because we

2 conclude that his motion was not timely filed, we need not address

his second contention.

¶7 As relevant here, Crim. P. 35(b) provides that “[t]he court may

reduce [a defendant’s] sentence provided that a motion for

reduction of sentence is filed . . . within 126 days (18 weeks) after

entry of any order or judgment of the appellate court denying review

or having the effect of upholding a judgment of conviction or

sentence.” A challenge to the timeliness of a Crim. P. 35(b) motion

calls into question the district court’s subject matter jurisdiction,

which we review de novo. See Herr v. People, 198 P.3d 108, 112

(Colo. 2008); see also People v. Maser, 2012 CO 41, ¶ 10.

¶8 Garrett contends that the postconviction court erred by

denying his motion as untimely because he filed it within 126 days

of when the mandate issued in Garrett II. He argues that this

court’s decision affirming the postconviction court’s denial of his

Crim. P. 35(c) motion amounted to the entry of an appellate court

judgment having the effect of upholding a judgment of conviction or

3 sentence. He does not address the postconviction court’s reliance

on Akins.1

¶9 Akins considered and rejected Garrett’s argument that the

issuance of a mandate from an appeal affirming the denial of a

Crim. P. 35(c) motion triggers a new 126-day timeframe for a

defendant to file a Crim. P. 35(b) motion. See Akins, 662 P.2d at

487-88; see also People v. Fuqua, 764 P.2d 56, 60 n.2 (Colo. 1988)

(“Nothing in our opinion today is intended to modify our prior

decision in Akins” that “[t]he denial of a Crim. P. 35(c) motion . . .

does not trigger a new 120-day period for filing a motion for

reduction of sentence.”). We are bound by that holding. See People

v. Eason, 2022 COA 54, ¶ 68.

¶ 10 Accordingly, we conclude that the postconviction court did not

err by denying Garrett’s Crim. P. 35(b) motion for reduction of

sentence as untimely filed. See Ghrist v. People, 897 P.2d 809, 813

1 In his reply brief, Garrett argues that the legislature’s 2023

amendment to section 18-1.3-801(6), C.R.S. 2024, to allow for habitual sentence modification after ten years “arguably overruled” and “would appear to override” the holding in People v. Akins, 662 P.2d 486 (Colo. 1983). See Ch. 297, sec. 2, § 18-1.3-801(6), 2023 Colo. Sess. Laws 1780. Because he raises this argument for the first time in his reply brief, we do not consider it. See People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).

4 (Colo. 1995) (“If [a Crim. P. 35(b)] motion is not filed within the

prescribed period it must be denied unless it falls under a

recognized exception.”); Fuqua, 764 P.2d at 59 (“[A] court is divested

of jurisdiction to reduce [a] sentence only in those cases in which

the defendant has failed to file a [Crim. P. 35(b)] motion within

the . . . period[] mandated by the rule.”). As a result, we need not

address Garrett’s challenge to the postconviction court’s denial of

his motion on the merits.

III. Disposition

¶ 11 The order is affirmed.

JUDGE WELLING and JUDGE MOULTRIE concur.