25CA0598 Peo v Hernandez 07-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0598 Arapahoe County District Court No. 08CR2105 Honorable David Karpel, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Francis M. Hernandez,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE SCHUTZ Yun and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 2, 2026
Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Francis M. Hernandez, 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 Francis M. Hernandez appeals the district court’s order
denying his most recent postconviction motion. We affirm.
I. Background
¶2 In 2010, a jury found Hernandez guilty of three counts of
vehicular homicide, one count of child abuse resulting in death, one
count of child abuse resulting in serious bodily injury, one count of
vehicular assault, three counts of third degree assault, and eight
counts of leaving the scene of an accident. Hernandez waived his
right to a jury trial on a single count of driving under restraint
(DUR) and was convicted following a bench trial. The district court
sentenced him to a cumulative sixty years in prison.
¶3 On direct appeal, a division of this court affirmed Hernandez’s
convictions except for his eight convictions for leaving the scene of
an accident. See People v. Hernandez, slip op. at 24, (Colo. App.
No. 10CA0998, June 26, 2014) (not published pursuant to C.A.R.
35(f)). The division concluded that those eight convictions must
merge into a single conviction for leaving the scene of an accident
and remanded for the district court to correct the mittimus. See id.
The district court amended the mittimus as directed. The appellate
mandate issued on February 11, 2015.
1 ¶4 Hernandez then filed multiple postconviction motions, all of
which the district court denied. The first, a Crim. P. 35(c) motion,
was affirmed by a division of this court. People v. Hernandez, (Colo.
App. No. 18CA0325, June 18, 2020) (not published pursuant to
C.A.R. 35(e)). Hernandez did not appeal the denial of his second
and third postconviction motions.
¶5 In January 2025, Hernandez filed a fourth postconviction
motion, pursuant to “35(C)(A).” He appeared to acknowledge that
the motion was successive but asked for “permission” to file such a
motion because (1) he was not represented by counsel nor were
hearings held on his prior postconviction motions and (2) the
instant motion “raise[d] new grounds” for relief not previously
raised. Substantively, he asserted that (1) his sentence was
disproportionate in violation of the Eighth Amendment and
otherwise unconstitutional under the principles set forth in Blakely
v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000); and (2) the Double Jeopardy Clause requires
merger of his child abuse and third degree assault convictions with
certain vehicular homicide counts. He also asserted that Erlinger v.
United States, 602 U.S. 821 (2024), “appli[ed] to” him because “his
2 Fifth and Sixth Amendment [rights were] violated when the court
abused its discretion” by not submitting his DUR charge to the jury.
¶6 The district court denied the fourth motion without a hearing,
concluding that Hernandez’s constitutional challenges to his
sentence and his merger claim were successive because they could
have been raised in his direct appeal or prior Crim. P. 35(c)
proceedings. The court likewise rejected Hernandez’s claim
premised on Erlinger, reasoning essentially that Erlinger was
inapplicable because Hernandez waived his right to a jury trial on
the DUR charge.
II. Discussion
¶7 Hernandez contends that the district court erred by summarily
denying his latest motion. Reviewing the matter de novo, People v.
Cali, 2020 CO 20, ¶ 14, we disagree.
¶8 As an initial matter, we reject Hernandez’s assertion that the
court erred by applying Crim. P. 35(c) principles to his
postconviction motion, which he now argues was cognizable under
Crim. P. 35(a). Because all of Hernandez’s claims are constitutional
in nature, they are properly construed as Crim. P. 35(c) claims.
Crim. P. 35(c)(2)(I); People v. Collier, 151 P.3d 668, 670 (Colo. App.
3 2006); see People v. Henderson, 810 P.2d 1058, 1062 (Colo. 1991)
(merger is analyzed under constitutional double jeopardy
principles); People v. Crawley, 2024 COA 49, ¶ 7 (“A proportionality
challenge implicates the constitutionality of a sentence and is thus
cognizable under Crim. P. 35(c).”); People v. Wenzinger, 155 P.3d
415, 419 (Colo. App. 2006) (claims of Apprendi or Blakely error are
cognizable under Crim. P. 35(c) because they do not undermine a
court’s statutory authority to impose sentence or otherwise deprive
the court of jurisdiction).
¶9 Rule 35(c) claims are subject to various procedural bars.
Unless an exception applies, postconviction challenges to non-class
1 felonies must be brought within three years of the conviction
becoming final, and postconviction challenges to misdemeanor
convictions must be brought within eighteen months. See
§ 16-5-402(1), (2)(a)-(d), C.R.S. 2025; People v. Chavez-Torres, 2019
CO 59, ¶ 13 (A time-barred Crim. P. 35(c) motion “must allege facts
which, if true, would entitle [the defendant] to relief from the time
bar.”).
¶ 10 In addition, subject to limited exceptions, a court “shall deny
any claim” that is successive — that is, any claim that was raised
4 and resolved, or could have been presented, in a previous appeal or
postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII); see also
People v. Taylor, 2018 COA 175, ¶ 17 (explaining that the language
directing a court to deny successive postconviction claims is
“mandatory rather than permissive”).
¶ 11 Hernandez was convicted of non-class 1 felonies,
misdemeanors, and traffic offenses. Even assuming the maximum
time limitation of three years for mounting a collateral attack on
these convictions, Hernandez filed his current postconviction
motion nearly ten years after his convictions became final when the
mandate issued in his direct appeal. See People v. Prendergast,
2024 COA 127, ¶ 28 (a conviction becomes final when the mandate
is issued following a direct appeal). Thus, the motion is well outside
the time limits set by section 16-5-402(1) and is therefore time
barred. See § 16-5-402(1.5) (“If an appellate court can determine
on the face of the motion, files, and record in a case that a collateral
attack is outside the time limits specified in subsection (1) of this
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25CA0598 Peo v Hernandez 07-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0598 Arapahoe County District Court No. 08CR2105 Honorable David Karpel, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Francis M. Hernandez,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE SCHUTZ Yun and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 2, 2026
Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Francis M. Hernandez, 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 Francis M. Hernandez appeals the district court’s order
denying his most recent postconviction motion. We affirm.
I. Background
¶2 In 2010, a jury found Hernandez guilty of three counts of
vehicular homicide, one count of child abuse resulting in death, one
count of child abuse resulting in serious bodily injury, one count of
vehicular assault, three counts of third degree assault, and eight
counts of leaving the scene of an accident. Hernandez waived his
right to a jury trial on a single count of driving under restraint
(DUR) and was convicted following a bench trial. The district court
sentenced him to a cumulative sixty years in prison.
¶3 On direct appeal, a division of this court affirmed Hernandez’s
convictions except for his eight convictions for leaving the scene of
an accident. See People v. Hernandez, slip op. at 24, (Colo. App.
No. 10CA0998, June 26, 2014) (not published pursuant to C.A.R.
35(f)). The division concluded that those eight convictions must
merge into a single conviction for leaving the scene of an accident
and remanded for the district court to correct the mittimus. See id.
The district court amended the mittimus as directed. The appellate
mandate issued on February 11, 2015.
1 ¶4 Hernandez then filed multiple postconviction motions, all of
which the district court denied. The first, a Crim. P. 35(c) motion,
was affirmed by a division of this court. People v. Hernandez, (Colo.
App. No. 18CA0325, June 18, 2020) (not published pursuant to
C.A.R. 35(e)). Hernandez did not appeal the denial of his second
and third postconviction motions.
¶5 In January 2025, Hernandez filed a fourth postconviction
motion, pursuant to “35(C)(A).” He appeared to acknowledge that
the motion was successive but asked for “permission” to file such a
motion because (1) he was not represented by counsel nor were
hearings held on his prior postconviction motions and (2) the
instant motion “raise[d] new grounds” for relief not previously
raised. Substantively, he asserted that (1) his sentence was
disproportionate in violation of the Eighth Amendment and
otherwise unconstitutional under the principles set forth in Blakely
v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000); and (2) the Double Jeopardy Clause requires
merger of his child abuse and third degree assault convictions with
certain vehicular homicide counts. He also asserted that Erlinger v.
United States, 602 U.S. 821 (2024), “appli[ed] to” him because “his
2 Fifth and Sixth Amendment [rights were] violated when the court
abused its discretion” by not submitting his DUR charge to the jury.
¶6 The district court denied the fourth motion without a hearing,
concluding that Hernandez’s constitutional challenges to his
sentence and his merger claim were successive because they could
have been raised in his direct appeal or prior Crim. P. 35(c)
proceedings. The court likewise rejected Hernandez’s claim
premised on Erlinger, reasoning essentially that Erlinger was
inapplicable because Hernandez waived his right to a jury trial on
the DUR charge.
II. Discussion
¶7 Hernandez contends that the district court erred by summarily
denying his latest motion. Reviewing the matter de novo, People v.
Cali, 2020 CO 20, ¶ 14, we disagree.
¶8 As an initial matter, we reject Hernandez’s assertion that the
court erred by applying Crim. P. 35(c) principles to his
postconviction motion, which he now argues was cognizable under
Crim. P. 35(a). Because all of Hernandez’s claims are constitutional
in nature, they are properly construed as Crim. P. 35(c) claims.
Crim. P. 35(c)(2)(I); People v. Collier, 151 P.3d 668, 670 (Colo. App.
3 2006); see People v. Henderson, 810 P.2d 1058, 1062 (Colo. 1991)
(merger is analyzed under constitutional double jeopardy
principles); People v. Crawley, 2024 COA 49, ¶ 7 (“A proportionality
challenge implicates the constitutionality of a sentence and is thus
cognizable under Crim. P. 35(c).”); People v. Wenzinger, 155 P.3d
415, 419 (Colo. App. 2006) (claims of Apprendi or Blakely error are
cognizable under Crim. P. 35(c) because they do not undermine a
court’s statutory authority to impose sentence or otherwise deprive
the court of jurisdiction).
¶9 Rule 35(c) claims are subject to various procedural bars.
Unless an exception applies, postconviction challenges to non-class
1 felonies must be brought within three years of the conviction
becoming final, and postconviction challenges to misdemeanor
convictions must be brought within eighteen months. See
§ 16-5-402(1), (2)(a)-(d), C.R.S. 2025; People v. Chavez-Torres, 2019
CO 59, ¶ 13 (A time-barred Crim. P. 35(c) motion “must allege facts
which, if true, would entitle [the defendant] to relief from the time
bar.”).
¶ 10 In addition, subject to limited exceptions, a court “shall deny
any claim” that is successive — that is, any claim that was raised
4 and resolved, or could have been presented, in a previous appeal or
postconviction proceeding. Crim. P. 35(c)(3)(VI), (VII); see also
People v. Taylor, 2018 COA 175, ¶ 17 (explaining that the language
directing a court to deny successive postconviction claims is
“mandatory rather than permissive”).
¶ 11 Hernandez was convicted of non-class 1 felonies,
misdemeanors, and traffic offenses. Even assuming the maximum
time limitation of three years for mounting a collateral attack on
these convictions, Hernandez filed his current postconviction
motion nearly ten years after his convictions became final when the
mandate issued in his direct appeal. See People v. Prendergast,
2024 COA 127, ¶ 28 (a conviction becomes final when the mandate
is issued following a direct appeal). Thus, the motion is well outside
the time limits set by section 16-5-402(1) and is therefore time
barred. See § 16-5-402(1.5) (“If an appellate court can determine
on the face of the motion, files, and record in a case that a collateral
attack is outside the time limits specified in subsection (1) of this
section, the appellate court may deny relief on that basis, regardless
of whether the issue of timeliness was raised in the [district]
court.”).
5 ¶ 12 Hernandez’s motion did not allege that any exception to
timeliness applied. True, in support of one of his sentencing
challenges he argued that Erlinger “applied to him.” But even giving
his motion its broadest construction, we do not discern an
argument that Erlinger provided Hernandez with an excuse for his
belated filing. See Cali, ¶ 34 (“[A]lthough we will broadly construe a
pro se litigant’s pleadings to effectuate the substance, rather than
the form, of those pleadings, we will not consider issues not raised
before the district court in a motion for postconviction relief.”); cf.
People v. Medina, 2026 COA 36, ¶ 20 (A “‘reviewing court has the
discretion to address the merits of an untimely motion for
postconviction relief if the motion is premised on newly arising
authority of constitutional magnitude’ that applies retroactively to
cases on collateral review.” (citation omitted)). And in any event,
even if we construe Hernandez’s motion as adequately asserting a
claim that Erlinger announced a new constitutional rule, the rule
does not apply retroactively on collateral review and therefore
cannot overcome the time bar. Medina, ¶ 37.
¶ 13 Because Hernandez’s claims are time barred, we need not
address the district court’s alternative ruling that some of the
6 claims were also successive. See, e.g., People v. Ortega, 266 P.3d
424, 426 (Colo. App. 2011) (recognizing that an appellate court may
affirm the postconviction court’s ruling on any basis supported by
the record). Nonetheless, we agree with the district court.
¶ 14 Hernandez previously raised a postconviction claim that his
sentence was unconstitutional under Apprendi and Blakely, and the
district court denied it. Thus, this claim was raised and resolved in
a previous postconviction proceeding and is procedurally barred by
Crim. P. 35(c)(3)(VI). And to the extent Hernandez’s motion can be
read as asserting that Erlinger established a previously unavailable
new rule of constitutional law that should be applied retroactively to
this claim, see Crim. P. 35(c)(3)(VI)(b), that assertion fails for the
same reason discussed above.
¶ 15 Likewise, to the extent Hernandez’s current Apprendi and
Blakely claim differs from his previous claim, he offers no applicable
exception for why he could not have raised this claim in one of his
previous postconviction motions. See Crim. P. 35(c)(3)(VII)(a)-(e).
Nor does he do so for his previously unasserted proportionality and
merger claims. Though his motion asserted that he was not
represented by counsel, hearings were not held on his prior
7 postconviction motions, and that the current motion “raise[d] new
grounds” for relief not previously raised, these allegations —
without more — do not meet any exceptions to the procedural bar
set forth in Rule 35(c)(3)(VII). See People v. Thompson, 2020 COA
117, ¶ 44 (“[A]rgument that [a] claim has never previously been
litigated fails because it ignores the plain language of Crim. P.
35(c)(3)(VII), which bars claims that ‘could have been presented’ in a
previous postconviction proceeding.”); Taylor, ¶ 21 (rejecting the
argument that being pro se at the time of a first Crim. P. 35(c)
motion is an exception to the rule barring a second Crim. P. 35(c)
motion raising new postconviction claims).
III. Disposition
¶ 16 The order is affirmed.
JUDGE YUN and JUSTICE MARTINEZ concur.