Peo v. Herrington

Opinion

24CA0499 Peo v Herrington 06-12-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0499 Douglas County District Court No. 12CR122 Honorable Natalie Girard Stricklin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Waymon Paul Herrington,

Defendant-Appellant.

ORDER AFFIRMED

Division A Opinion by JUSTICE MARTINEZ* Román, C.J., and Taubman*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Waymon Paul Herrington, Pro Se

*Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, § 5(3) and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Waymon Paul Herrington, appeals the district

court order denying his most recent postconviction motion. We

affirm.

I. Background

¶2 Herrington pleaded guilty to two counts of aggravated robbery

— both class 3 felonies and extraordinary risk crimes — and

stipulated that his sentence could be aggravated based on the facts

of the offense and his criminal history. He further agreed to an

aggregate prison sentence of between twenty and thirty-two years.

In November 2012, the district court imposed concurrent twenty-

eight-year sentences in the custody of the Department of

Corrections. Herrington subsequently filed seven postconviction

motions seeking to reduce his sentence. The district court denied

each motion, finding that Herrington’s sentence was appropriate

and legal and, in many instances, that the motion was untimely

and successive.

¶3 In January 2024, Herrington filed the motion for

proportionality review at issue here — an eighth collateral attack on

his sentence. Reading the pro se motion broadly, as we must, we

perceive it to contend that (1) his sentence was unconstitutionally

1 disproportionate in light of Wells-Yates v. People, 2019 CO 90M;

and (2) the district court should consider the merits of this untimely

claim because Wells-Yates announced a new rule of constitutional

law that applied retroactively. See People v. Cali, 2020 CO 20, ¶ 34

(appellate courts broadly construe pro se motions).

¶4 The district court construed his motion as a Crim. P. 35(c)

motion and summarily denied it as untimely, without justifiable

excuse or excusable neglect. We agree with the district court.

II. Applicable Law and Standard of Review

¶5 A Crim. P. 35(c) motion must be filed within three years of a

defendant’s conviction for a non-class 1 felony offense.

§ 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). But there is an

exception to this time bar when the defendant’s “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). When, as in this case, the defendant

does not directly appeal, the conviction “occurs when the trial court

enters judgment and sentence is imposed.” People v. Collier, 151

P.3d 668, 671 (Colo. App. 2006).

2 ¶6 We review de novo whether the facts alleged in a Crim. P. 35(c)

motion, if true, would constitute justifiable excuse or excusable

neglect. People v. Hinojos, 2019 CO 60, ¶ 12. A Crim. P. 35(c)

motion may be summarily denied when the motion, files, and record

clearly establish that the defendant’s allegations do not warrant

relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

III. Application

¶7 As an initial matter, we conclude that the district court

properly construed Herrington’s motion as a Crim. P. 35(c) motion.

See People v. Moore-El, 160 P.3d 393, 395 (Colo. App. 2007) (a

request for proportionality review is properly cognizable under

Crim. P. 35(c)).

¶8 Next, because Herrington filed his motion more than eleven

years after his conviction, we conclude that the motion is untimely

under section 16-5-402(1). Herrington contends that the district

court should have nevertheless considered the merits of his motion

because he alleged facts that, if true, would show justifiable excuse

or excusable neglect for filing his motion filed more than four years

after Wells-Yates was announced. We disagree.

3 ¶9 As we understand his motion and appellate brief, Herrington

wholly relies on the argument that his claim is excused from the

time bar because the proportionality discussion in Wells-Yates

announced a new rule of substantive constitutional law. See People

v. Rainer, 2013 COA 51, ¶ 29 (holding that a new rule of

substantive constitutional law can constitute justifiable excuse for

failing to timely file a postconviction claim), rev’d on other grounds,

2017 CO 50. This argument fails because last year, the Colorado

Supreme Court held that Wells-Yates does not apply retroactively to

cases on collateral review. See McDonald v. People, 2024 CO 75, ¶

34. Thus, Wells-Yates does not apply to Herrington’s case, its

announcement does not excuse the untimely filing of a collateral

attack on his sentence, and his request for a proportionality review

is time barred.

¶ 10 Finally, to the extent Herrington raised any additional claims

in his eighth postconviction motion, we do not consider them

because he did not allege justifiable excuse or excusable neglect for

those untimely claims. See § 16-5-402(2)(d). Moreover, the motion

is successive, and “Rule 35 proceedings are intended to prevent

injustices after conviction and sentencing, not to provide perpetual

4 review.” People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996); see

Crim. P. 35(c)(3)(VI), (VII) (barring successive claims).

IV. Disposition

¶ 11 The order is affirmed.

CHIEF JUDGE ROMÁN and JUDGE TAUBMAN concur.