23CA1676 Peo v Jebe 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1676 City and County of Denver District Court No. 22CR6515 Honorable Nikea T. Bland, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Quinn M. Jebe,
Defendant-Appellee.
APPEAL DISMISSED
Division VII Opinion by JUDGE PAWAR Tow and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Beth McCann, District Attorney, Alison Suthers, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant
LFM Defense, Robert Werking, Greenwood Village, Colorado, for Defendant- Appellee ¶1 The prosecution appeals the district court’s order dismissing
with prejudice all charges against Quinn M. Jebe. We dismiss the
appeal because it was filed more than forty-nine days after the final
judgment, a motion for reconsideration does not extend the time to
file a prosecutorial appeal, and the prosecution failed to show
excusable neglect for its untimely filing.
I. Procedural Background
¶2 Jebe was taken into custody on November 23, 2022, on
charges of sexual assault on a child (pattern of abuse) and
distribution of a controlled substance to a minor. He was unable to
post his $50,000 bond. At his arraignment, the court calculated his
speedy trial deadline to be August 28, 2023. Trial was set for
August 1.
¶3 A few days before trial, the prosecution moved to dismiss the
case without prejudice, asserting that the alleged victim was unable
to testify due to a mental condition. Defense counsel objected and
asked instead to reset the trial for the speedy trial deadline, but the
prosecution indicated that it would be unable to proceed even with
a delay. The district court then dismissed the case with prejudice
on July 28, 2023.
1 ¶4 That same day, the prosecution filed a motion for
reconsideration. Defense counsel filed an objection, and the
prosecution replied. The district court denied the prosecution’s
motion on September 5, 2023 — thirty-nine days after its original
dismissal order.1 The prosecution appealed on September 28, 2023
— twenty-three days after the order denying its motion to
reconsider.
¶5 Because the prosecution filed its notice of appeal more than
forty-nine days after the district court entered a final, appealable
dismissal order, this court issued an order to show cause why the
appeal should not be dismissed with prejudice for failure to timely
appeal under C.A.R. 4(b)(6)(a). The prosecution responded that it
timely filed its appeal within forty-nine days of the order denying its
motion to reconsider, and, alternatively, that we may consider its
untimely filing because its misplaced reliance on People v. Tuffo,
209 P.3d 1226, 1229 (Colo. App. 2009); People v. Melton, 910 P.2d
672, 675 n.4 (Colo. 1996); and People v. Blue, 253 P.3d 1273, 1276
(Colo. App. 2011), constitutes excusable neglect.
1 At this time, the prosecution still had ten days to timely file a
notice of appeal. See C.A.R. 4(b)(6)(A).
2 ¶6 We first conclude that a prosecutorial motion for
reconsideration of a final judgment does not extend the time for
filing an appeal. Next, assuming that C.A.R. 4(b)(3) — as revised in
July 2022 — allows the prosecution to assert excusable neglect, we
conclude there was no showing of excusable neglect to justify the
late filing here.
II. Prosecutorial Postjudgment Motions Do Not Suspend Finality
¶7 The prosecution argues that its motion for reconsideration
suspended the finality of the district court’s July 28 dismissal
order. Not so.
¶8 A defendant’s “right to direct appeal of a criminal conviction is
fundamental.” People v. Baker, 104 P.3d 893, 895 (Colo. 2005); see
also § 16-12-101, C.R.S. 2024 (providing that “[e]very person
convicted of an offense . . . has the right of appeal to review the
proceedings resulting in conviction”). For that reason, appellate
courts retain jurisdiction to review criminal convictions appealed
beyond the forty-nine days prescribed in C.A.R. 4(b)(1) in some
circumstances, including when the defendant files certain timely
post-trial motions. C.A.R. 4(b)(2).
3 ¶9 Prosecutorial appeals, however, are not granted the same
exceptions. Section 16-12-102(1), C.R.S. 2024, provides that the
procedure for filing prosecutorial appeals “shall be as provided by
applicable rule of the supreme court of Colorado.” And C.A.R.
4(b)(6)(A) provides the time allowed for filing non-interlocutory
prosecutorial appeals: “within 49 days after the entry of judgment
or order appealed from” unless otherwise provided by statute or the
Colorado Appellate Rules.
¶ 10 A dismissal of all charges in a criminal prosecution “clearly
ends the particular action in which the order of dismissal is entered
and therefore constitutes a final judgment for purposes of the
appellate review of any ruling in the case.” People v. Gabriesheski,
262 P.3d 653, 657 (Colo. 2011); see Dike v. People, 30 P.3d 197,
201 (Colo. 2001) (“A judgment of dismissal is a final, appealable
order.”). Here, the district court’s July 28 order dismissing all
charges was a final judgment.
¶ 11 The prosecution’s motion for reconsideration did not suspend
the finality of that judgment or toll the time for appeal under C.A.R.
4(b)(2), which extends the time for appeal pending resolution of a
defendant’s post-trial “motion in arrest of judgment, for judgment of
4 acquittal, or for a new trial.” C.A.R. 4(b)(2) extends the time for
appealing only a judgment of conviction. There was no judgment of
conviction in this case.
¶ 12 We are unaware of, and the prosecution does not point to, any
other appellate rule or statute that either suspends the finality of a
criminal judgment or tolls the time to appeal a criminal judgment
pending resolution of a postjudgment motion for reconsideration.
See People v. Retallack, 804 P.2d 279, 279-80 (Colo. App. 1990) (“[A]
motion filed after entry of [a postconviction] order challenged on
appeal does not extend the time for the prosecution to file its notice
pursuant to C.A.R. 4(b)[].”); see also People v. Thomas, 195 P.3d
1162, 1164 (Colo. App. 2008) (the defendant’s motion to reconsider
a postconviction order denying a new trial did not extend the time
to file an appeal); cf. People v. Ong, 2021 COA 113, ¶ 13 (concluding
that the finality of a district court’s order dismissing all charges was
unaffected by a twenty-one-day stay issued by the court pursuant
to § 16-8.5-116(10), C.R.S. 2020).
¶ 13 We are not persuaded that case law grants us jurisdiction over
the prosecution’s untimely appeal. The cases relied on by the
prosecution are inapposite as they arise from wholly different
5 procedural postures: Tuffo involves a criminal defendant’s appeal
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23CA1676 Peo v Jebe 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1676 City and County of Denver District Court No. 22CR6515 Honorable Nikea T. Bland, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Quinn M. Jebe,
Defendant-Appellee.
APPEAL DISMISSED
Division VII Opinion by JUDGE PAWAR Tow and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Beth McCann, District Attorney, Alison Suthers, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant
LFM Defense, Robert Werking, Greenwood Village, Colorado, for Defendant- Appellee ¶1 The prosecution appeals the district court’s order dismissing
with prejudice all charges against Quinn M. Jebe. We dismiss the
appeal because it was filed more than forty-nine days after the final
judgment, a motion for reconsideration does not extend the time to
file a prosecutorial appeal, and the prosecution failed to show
excusable neglect for its untimely filing.
I. Procedural Background
¶2 Jebe was taken into custody on November 23, 2022, on
charges of sexual assault on a child (pattern of abuse) and
distribution of a controlled substance to a minor. He was unable to
post his $50,000 bond. At his arraignment, the court calculated his
speedy trial deadline to be August 28, 2023. Trial was set for
August 1.
¶3 A few days before trial, the prosecution moved to dismiss the
case without prejudice, asserting that the alleged victim was unable
to testify due to a mental condition. Defense counsel objected and
asked instead to reset the trial for the speedy trial deadline, but the
prosecution indicated that it would be unable to proceed even with
a delay. The district court then dismissed the case with prejudice
on July 28, 2023.
1 ¶4 That same day, the prosecution filed a motion for
reconsideration. Defense counsel filed an objection, and the
prosecution replied. The district court denied the prosecution’s
motion on September 5, 2023 — thirty-nine days after its original
dismissal order.1 The prosecution appealed on September 28, 2023
— twenty-three days after the order denying its motion to
reconsider.
¶5 Because the prosecution filed its notice of appeal more than
forty-nine days after the district court entered a final, appealable
dismissal order, this court issued an order to show cause why the
appeal should not be dismissed with prejudice for failure to timely
appeal under C.A.R. 4(b)(6)(a). The prosecution responded that it
timely filed its appeal within forty-nine days of the order denying its
motion to reconsider, and, alternatively, that we may consider its
untimely filing because its misplaced reliance on People v. Tuffo,
209 P.3d 1226, 1229 (Colo. App. 2009); People v. Melton, 910 P.2d
672, 675 n.4 (Colo. 1996); and People v. Blue, 253 P.3d 1273, 1276
(Colo. App. 2011), constitutes excusable neglect.
1 At this time, the prosecution still had ten days to timely file a
notice of appeal. See C.A.R. 4(b)(6)(A).
2 ¶6 We first conclude that a prosecutorial motion for
reconsideration of a final judgment does not extend the time for
filing an appeal. Next, assuming that C.A.R. 4(b)(3) — as revised in
July 2022 — allows the prosecution to assert excusable neglect, we
conclude there was no showing of excusable neglect to justify the
late filing here.
II. Prosecutorial Postjudgment Motions Do Not Suspend Finality
¶7 The prosecution argues that its motion for reconsideration
suspended the finality of the district court’s July 28 dismissal
order. Not so.
¶8 A defendant’s “right to direct appeal of a criminal conviction is
fundamental.” People v. Baker, 104 P.3d 893, 895 (Colo. 2005); see
also § 16-12-101, C.R.S. 2024 (providing that “[e]very person
convicted of an offense . . . has the right of appeal to review the
proceedings resulting in conviction”). For that reason, appellate
courts retain jurisdiction to review criminal convictions appealed
beyond the forty-nine days prescribed in C.A.R. 4(b)(1) in some
circumstances, including when the defendant files certain timely
post-trial motions. C.A.R. 4(b)(2).
3 ¶9 Prosecutorial appeals, however, are not granted the same
exceptions. Section 16-12-102(1), C.R.S. 2024, provides that the
procedure for filing prosecutorial appeals “shall be as provided by
applicable rule of the supreme court of Colorado.” And C.A.R.
4(b)(6)(A) provides the time allowed for filing non-interlocutory
prosecutorial appeals: “within 49 days after the entry of judgment
or order appealed from” unless otherwise provided by statute or the
Colorado Appellate Rules.
¶ 10 A dismissal of all charges in a criminal prosecution “clearly
ends the particular action in which the order of dismissal is entered
and therefore constitutes a final judgment for purposes of the
appellate review of any ruling in the case.” People v. Gabriesheski,
262 P.3d 653, 657 (Colo. 2011); see Dike v. People, 30 P.3d 197,
201 (Colo. 2001) (“A judgment of dismissal is a final, appealable
order.”). Here, the district court’s July 28 order dismissing all
charges was a final judgment.
¶ 11 The prosecution’s motion for reconsideration did not suspend
the finality of that judgment or toll the time for appeal under C.A.R.
4(b)(2), which extends the time for appeal pending resolution of a
defendant’s post-trial “motion in arrest of judgment, for judgment of
4 acquittal, or for a new trial.” C.A.R. 4(b)(2) extends the time for
appealing only a judgment of conviction. There was no judgment of
conviction in this case.
¶ 12 We are unaware of, and the prosecution does not point to, any
other appellate rule or statute that either suspends the finality of a
criminal judgment or tolls the time to appeal a criminal judgment
pending resolution of a postjudgment motion for reconsideration.
See People v. Retallack, 804 P.2d 279, 279-80 (Colo. App. 1990) (“[A]
motion filed after entry of [a postconviction] order challenged on
appeal does not extend the time for the prosecution to file its notice
pursuant to C.A.R. 4(b)[].”); see also People v. Thomas, 195 P.3d
1162, 1164 (Colo. App. 2008) (the defendant’s motion to reconsider
a postconviction order denying a new trial did not extend the time
to file an appeal); cf. People v. Ong, 2021 COA 113, ¶ 13 (concluding
that the finality of a district court’s order dismissing all charges was
unaffected by a twenty-one-day stay issued by the court pursuant
to § 16-8.5-116(10), C.R.S. 2020).
¶ 13 We are not persuaded that case law grants us jurisdiction over
the prosecution’s untimely appeal. The cases relied on by the
prosecution are inapposite as they arise from wholly different
5 procedural postures: Tuffo involves a criminal defendant’s appeal
under unusual procedural circumstances, see Tuffo, 209 P.3d at
1228-29;2 and Melton and Blue address interlocutory appeals that
are subject to different rules and timelines, see Melton, 910 P.2d at
675 n.4; Blue, 253 P.3d at 1276; see also § 16-12-102(2); C.A.R.
4.1; C.A.R. 4(b)(6)(B).
¶ 14 Given the absence of authority supporting the prosecution’s
position, we cannot conclude that its motion for reconsideration of
district court’s dismissal order suspended finality. The
prosecution’s appeal is untimely.
III. The Prosecution Has Not Shown Excusable Neglect
¶ 15 C.A.R. 4 allows an extension of time to file a notice of appeal
based on a showing of excusable neglect. C.A.R. 4(b)(3). We reject
the prosecution’s argument that its neglect is excusable because it
relied on certain language in Tuffo, Melton, and Blue in its late
filing.
2 The language the prosecution quotes from Tuffo is also derived
from a case addressing interlocutory appeals. See People v. Powers, 47 P.3d 686, 689 (Colo. 2002).
6 ¶ 16 At the outset, we note that prior to 2022, the excusable neglect
provision of C.A.R. 4 did not apply to prosecutorial appeals. See
C.A.R. 4(b)(1), 2021 (providing that the time for filing appeals by a
criminal defendant may be extended upon a showing of excusable
neglect); see also People v. Gilmore, 97 P.3d 123, 128 (Colo. App.
2003) (holding that the excusable neglect provision in a prior
version of C.A.R. 4(b)(1) does not apply to appeals filed by the state
or the prosecution); Ong, ¶ 27 (same). But the supreme court
changed C.A.R. 4(b) in 2022, and C.A.R. 4(b)(3) now provides:
Upon a showing of excusable neglect the appellate court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 35 days from the expiration of the time otherwise prescribed by this section (b).
¶ 17 As a result, the plain language of C.A.R. 4(b) no longer
expressly limits extensions of time based on excusable neglect to
appeals by criminal defendants. Given that the new language in
C.A.R. 4(b)(3) strongly suggests that we now have discretion to
extend the time for filing a prosecutorial appeal based on excusable
neglect, we will assume without deciding that we have such
discretion. However, we decline to exercise it here because we
7 perceive no showing of excusable neglect. See Weason v. Colo. Ct. of
Appeals, 731 P.2d 736, 738 (Colo. 1987) (holding that we have
broad discretion to determine whether excusable neglect has been
shown).
¶ 18 Excusable neglect occurs when there is failure to act at the
proper time due to “circumstances which would cause a reasonably
careful person to neglect a duty” or “some unavoidable hindrance or
accident.” Farmers Ins. Grp. v. Dist. Ct., 507 P.2d 865, 867 (Colo.
1973); see Estep v. People, 753 P.2d 1241, 1247 (Colo. 1988)
(adopting the excusable neglect standard from Farmers Insurance
Group in the context of criminal appeals). The critical question
before us is the prosecution’s reason for its late filing. Riggs Oil &
Gas Corp. v. Jonah Energy LLC, 2024 COA 57, ¶ 28.
¶ 19 The prosecution asserts only that it misrelied on cases that
addressed timeliness in the context of inapplicable categories of
appeals. This legal error resulted from neither unusual
circumstances nor an unavoidable hindrance — a misinterpretation
of the law is avoidable. See Farm Deals, LLLP v. State, 2012 COA 6,
¶¶ 20-21. C.A.R. 4(b)(6)(A) is clear as to when a non-interlocutory
prosecutorial appeal must be filed. And the prosecution is obligated
8 to determine when there is a final, appealable order “in a diligent
and informed manner.” Chavez v. Chavez, 2020 COA 70, ¶ 36; see
also People in Interest of L.B-H-P., 2021 COA 5, ¶ 15 (“[A]bsent
unusual circumstances, an attorney’s negligence in failing to meet a
deadline does not constitute excusable neglect.”). Moreover,
because the district court ruled on the prosecution’s motion to
reconsider ten days before an appeal was due, nothing prevented
the prosecution from timely filing its appeal.
IV. Disposition
¶ 20 The appeal is dismissed.
JUDGE TOW and JUDGE SCHUTZ concur.