Peo v. Gilbert

• Court: Colorado Court of Appeals
• Decided: July 9, 2026
• Docket: 24CA1776
• Status: Unpublished

Opinion

24CA1776 Peo v Gilbert 07-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1776 City and County of Denver District Court No. 13CR4524 Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jerome C. Gilbert,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE YUN Schutz and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff- Appellee

Jerome C. Gilbert, Pro Se

*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, Jerome C. Gilbert, appeals the postconviction

court’s order denying his most recent postconviction motion. We

affirm.

I. Background

¶2 In 2014, a jury found Gilbert guilty of second degree burglary,

first degree criminal trespassing, and theft. The trial court then

adjudicated him a habitual criminal based on five habitual criminal

counts and sentenced him to forty-eight years in the custody of the

Department of Corrections.

¶3 On direct appeal, a division of this court affirmed, concluding

that Gilbert’s sentence was not constitutionally disproportionate.

See People v. Gilbert, (Colo. App. No. 15CA0174, Apr. 6, 2017) (not

published pursuant to C.A.R. 35(e)). The mandate was issued in

2017.

¶4 In 2018 and again in 2022, Gilbert filed postconviction

motions, both of which the postconviction court properly construed

as Crim. P. 35(c) motions. The court denied both motions. Gilbert

appealed the first order, and a division of this court affirmed. See

People v. Gilbert, (Colo. App. No. 20CA0889, July 22, 2021) (not

1 published pursuant to C.A.R. 35(e)). There is no indication in the

record that he appealed the second order.

¶5 In 2024, Gilbert filed the postconviction motion at issue,

labeling it a Crim. P. 35(a) motion to correct an illegal sentence. He

raised three claims: (1) his habitual criminal sentences are

unconstitutional because his prior convictions were for offenses

committed as a juvenile; (2) he did not receive Crim. P. 11

advisements before entering his guilty pleas in the prior conviction

cases, so his pleas were not entered voluntarily, knowingly, or

intelligently; and (3) one of his prior convictions — for possession of

a schedule II controlled substance — is no longer a felony under

current law. He also requested appointment of postconviction

counsel to represent him.

¶6 The postconviction court summarily denied the motion,

holding that: (1) to the extent Gilbert raised a Crim. P. 35(a) illegal

sentence claim, his sentences were authorized by the governing

statutory scheme in effect at the time he was sentenced; (2) to the

extent he raised a Crim. P. 35(a) illegal manner claim, the claim is

time barred; and (3) to the extent his claims are properly construed

as Crim. P. 35(c) claims, they are barred as successive.

2 ¶7 Gilbert appeals this order.

II. Standard of Review

¶8 We review the summary denial of a postconviction motion de

novo. See People v. Medina, 2019 COA 103M, ¶ 4.

III. Analysis

¶9 Gilbert contends that the postconviction court erred by

(1) failing to follow the procedural requirements in Crim. P.

35(c)(3)(V), and (2) rejecting his claim that he did not receive Crim.

P. 11 advisements before pleading guilty in the prior conviction

cases. He also raises a new claim, relying on Erlinger v. United

States, 602 U.S. 821 (2024), that his habitual criminal sentences

are unconstitutional because the trial court — not a jury —

adjudicated him a habitual criminal.

¶ 10 However, Gilbert does not address the postconviction court’s

bases for denying his postconviction motion at issue: (1) his

sentences were authorized by the governing statutory scheme in

effect at the time he was sentenced, (2) any Crim. P. 35(a) illegal

manner claim he raised was time barred, and (3) any Crim. P. 35(c)

claims he raised were barred as successive.

3 ¶ 11 We need not address the postconviction court’s first two bases

for denying the motion because we conclude that Gilbert’s claims in

the motion, and the arguments he raises on appeal, are properly

construed as Crim. P. 35(c) claims. It does not matter that Gilbert

framed his claims as Crim. P. 35(a) claims, because “[t]he

substance of a postconviction motion controls whether it is

designated as a Crim. P. 35(a) or 35(c) motion.” People v. Collier,

151 P.3d 668, 670 (Colo. App. 2006). “Motions under Crim. P. 35(c)

are the proper postconviction route in which to challenge

convictions or sentences as unconstitutional.” Id. All of Gilbert’s

claims, both in his postconviction motion and on appeal, are

constitutional claims, so they are Crim. P. 35(c) claims.

¶ 12 As the postconviction court determined, his claims are barred

as successive because he raised them, or could have raised them, in

his first Crim. P. 35(c) motion filed in 2018. See Crim. P.

35(c)(3)(VI), (VII). His claims are also time barred because he filed

his 2024 motion seven years after his convictions and sentences

became final in 2017. See § 16-5-402(1), (1.5), C.R.S. 2025;

People v. Ray, 2025 CO 42M, ¶ 29 (an appellate court may affirm on

any ground supported by the record).

4 ¶ 13 Nor are we persuaded by Gilbert’s argument that the

postconviction court failed to comply with the procedural

requirements of Crim. P. 35(c)(3)(V) by serving a copy of his

postconviction motion on the prosecutor’s office without also

serving it on the Office of the Public Defender. But the record

indicates that he is the one who served his motion on the

prosecutor’s office. And the record indicates that the court never

proceeded to Crim. P. 35(c)(3)(V); it denied Gilbert’s motion under

Crim. P. 35(c)(3)(IV), so the procedural requirements of Crim. P.

35(c)(3)(V) are irrelevant here.

¶ 14 As for Gilbert’s new claim based on Erlinger, we need not

consider it because he is raising it for the first time on appeal. See

People v. Huggins, 2019 COA 116, ¶¶ 17-18 (explaining that when a

defendant fails to raise an issue — whether constitutional or

nonconstitutional — in a postconviction motion or during the

hearing on that motion, and the postconviction court does not have

an opportunity to rule, the issue is not preserved and will not be

considered on appeal).

¶ 15 Finally, any other claims that Gilbert raised in his

postconviction motion that he has not re-raised on appeal are

5 deemed abandoned. See People v. Ortega, 266 P.3d 424, 428 (Colo.

App. 2011).

IV. Disposition

¶ 16 The order is affirmed.

JUDGE SCHUTZ and JUSTICE MARTINEZ concur.