Peo v. Guerrero

Opinion

25CA1210 Peo v Guerrero 08-27-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1210 El Paso County District Court No. 06CR4219 Honorable Michael McHenry, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Ulises Guerrero, Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE SCHOCK

Welling and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 27, 2026

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Denver, Colorado, for Plaintiff-Appellee

Byrnes Law Firm, James A. Yontz, Colorado Springs, Colorado, for Defendant- Appellant

¶1 Defendant, Ulisis Guerrero, appeals the district court’s order denying his motion to continue his Crim. P. 35(c) hearing and dismissing his postconviction motion. The People concede that the order should be reversed and the case remanded for further proceedings, asserting that the denial of the motion to continue deprived Guerrero of a sufficient opportunity to present his claims.

¶2 We accept the People’s concession, reverse the order, and remand the case to the district court to allow Guerrero a reasonable opportunity to obtain the transcript of his plea and sentencing hearing before any hearing on his Crim. P. 35(c) motion.

I. Background

¶3 In 2007, Guerrero pleaded guilty to possession of one to eight ounces of marijuana, a class 1 misdemeanor at the time, and was sentenced to one year of unsupervised probation. Guerrero successfully completed his probationary sentence, and in 2024, his case was automatically sealed under section 13-3-117, C.R.S. 2025.

¶4 In October 2024, someone filed a transcript request form in the district court, requesting a copy of Guerrero’s providency and sentencing hearing. That request was denied because (1) the requester was not a party; and (2) no responsive court record

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existed. Although the court instructed the requester to file a motion for permission to obtain the transcripts, she never did so. That same month, Guerrero also requested transcripts of the providency and sentencing hearing, but no action was taken on his request.

¶5 Several months later, Guerrero, through counsel, filed a Crim. P. 35(c) motion to vacate his eighteen-year-old guilty plea based on concerns that recent changes in federal immigration policies could affect his immigration status. Guerrero alleged that (1) he had been erroneously advised at the time of his plea that the plea would have no effect on his immigration status; and (2) if he had known this was not “totally correct,” he would have gone to trial. He further alleged that he had justifiable excuse or excusable neglect for failing to file his motion within the eighteen-month statute of limitations because (1) he was not informed about the immigration consequences of his plea when he entered it; and (2) he “could not have predicted” the change in immigration enforcement policies that placed him in legal peril. See §§ 16-5-402(1), (2)(d), C.R.S. 2025.

¶6 The district court set the Crim. P. 35(c) motion for a hearing and ordered the prosecution to file a response. In its response, the prosecution asked the court to deny the motion because, among

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other things, it was filed eighteen years after Guerrero’s conviction, and the change in immigration enforcement policies did not constitute justifiable excuse or excusable neglect. The prosecution also argued that defense counsel’s failure to predict the future change in policies was not ineffective assistance of counsel.

¶7 Two weeks before the hearing, Guerrero asked the court to continue the hearing for thirty days so he could obtain a transcript of the plea and sentencing hearing. He asserted in the motion that, because the case had been sealed until two weeks prior, he had been unable to get the transcript to determine what exactly he was told at the time of his plea. The prosecution opposed the continuance, and the district court denied it because Guerrero had “not proffered plausible grounds to believe that a transcript of the proceedings would provide evidence to overcome the . . . time-bar by showing justifiable excuse or excusable neglect.”

¶8 At the hearing, Guerrero’s counsel again requested a continuance, telling the court that he needed the transcript to know if and how Guerrero was advised regarding the immigration consequences of his plea. The district court asked Guerrero’s counsel how a transcript could allow Guerrero to overcome the time

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bar. Counsel responded that the transcript was relevant to “what [Guerrero] was advised . . . at that time and then the change in the federal administration, how they’re looking at these things.”

¶9 The district court denied the renewed motion for a continuance and dismissed the Crim. P. 35(c) motion. It concluded that the motion “lack[ed] sufficient grounds for [the court] to find in [Guerrero’s] favor” because a change in federal immigration enforcement policies did not constitute a “change in the law that could invoke the [c]ourt’s equitable powers under [Crim. P.] 35(c).”

II. Analysis

¶ 10 Guerrero contends on appeal that the district court abused its discretion by denying his motion for a continuance and that the denial, and ensuing dismissal of his Crim. P. 35(c) motion, deprived him of due process. The People concede that the denial of the continuance deprived Guerrero of a sufficient opportunity to prepare for the postconviction hearing. They ask us to “put the train back on the tracks” by remanding the case with directions to allow counsel a reasonable amount of time to obtain the transcript of the plea and sentencing hearing. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 23. We accept the People’s concession. See People v.

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Backus, 952 P.2d 846, 850 (Colo. App. 1998) (“[W]e may choose to accept, but we are not bound by, the concessions of counsel . . . .”).

¶ 11 Due process requires that defendants have “an adequate opportunity to present their claims fairly.” People v. Bell, 2026 CO 28, ¶ 28 (citation omitted); see also People v. Finney, 2012 COA 38, ¶¶ 64-65 (affirming district court’s limitation on the presentation of evidence because the defendant had “sufficient opportunity to present evidence in support of his postconviction claims”). We review a district court’s order denying a motion for a continuance for an abuse of discretion. People v. Brown, 2014 CO 25, ¶ 19.

¶ 12 The district court granted a hearing on Guerrero’s Crim. P. 35(c) motion. Two weeks after the hearing was set, and two weeks in advance of the hearing, Guerrero requested a thirty-day continuance of the hearing. His stated basis for the continuance made sense: Because the case had previously been sealed, he had not been able to obtain a transcript of the prior hearing, which he believed was necessary to prove the allegedly erroneous advisement. The People’s objections — which they abandon on appeal — were that (1) the motion was untimely and without merit; (2) the deputy

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district attorney on the case was leaving the office in two and half weeks; and (3) the decision would have wide-ranging implications.

¶ 13 Under these circumstances, given the People’s decision not to advance any argument on appeal in support of the district court’s decision to deny the requested continuance, we choose to accept their concession and reverse the order. In short, the requested continuance was brief, there would be no record of the prior proceeding without it, and the prosecution failed to identify any specific prejudice (other than the general statement that the departing deputy district attorney was “intimately familiar with the issues at hand”). Indeed, the allegedly wide-ranging implications of the decision would seem to counsel in favor of the continuance so the issues could be properly developed.

¶ 14 We acknowledge the district court’s point that it is hard to imagine how the transcript would help Guerrero establish justifiable excuse or excusable neglect for filing his motion eighteen

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years after his plea.1 And Guerrero’s counsel did not help the court by failing to respond to the court’s question with any theory as to how it could. But the court did not deny Guerrero’s Crim. P. 35(c) motion without a hearing, as it may do when “the motion and the files and the record of the case show to the satisfaction of the court that the defendant is not entitled to relief.” Crim. P. 35(c)(3)(IV). Instead, the court set the motion for a hearing. See Crim. P. 35(c)(3)(V). We agree with the People that, having done so, it would have been better for the district court to allow Guerrero the thirty days he requested to obtain the transcript that he asserted was necessary to prove his claims at that hearing. See Finney, ¶ 65.

¶ 15 Thus, in light of the People’s concession on appeal, we reverse the order denying the continuance and dismissing the Crim. P. 35(c) motion and remand the case to the district court for further proceedings. On remand, the district court should allow Guerrero a reasonable opportunity to obtain the transcript of his plea and

1 It is undisputed that Guerrero’s Crim. P. 35(c) motion is time

barred unless his “failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.” § 16-5-402(2)(d), C.R.S. 2025; see also § 16-5-402(1) (requiring collateral attack on misdemeanor conviction to be brought within eighteen months of conviction).

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sentencing hearing before holding a hearing on Guerrero’s motion.2 We express no opinion on the merits of Guerrero’s motion or his argument regarding justifiable excuse or excusable neglect.

III. Disposition

¶ 16 The order is reversed, and the case is remanded to the district court to allow Guerrero a reasonable opportunity to obtain a transcript of his plea and sentencing hearing, and for further proceedings, as necessary, consistent with this opinion.

JUDGE WELLING and JUDGE LUM concur.

2 We note that the first transcript request denial states that “[a]

court record doesn’t exist that is responsive to this transcript request.” We do not intend to suggest that the district court must hold this case open indefinitely if Guerrero does not, or cannot, promptly obtain the transcript but only that it should give him a reasonable amount of time to do so before ruling on the motion.