Peo v. Martinez-Fabela

• Court: Colorado Court of Appeals
• Decided: April 2, 2026
• Docket: 24CA2036
• Status: Unpublished

Opinion

24CA2036 Peo v Martinez-Fabela 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2036 City and County of Denver District Court No. 07CR3679 Honorable Ericka F. H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hilario Martinez-Fabela,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Hilario Martinez-Fabela, Pro Se ¶1 Hilario Martinez-Fabela appeals the postconviction court’s

order denying his July 8, 2024, “Motion to Correct A[n] Illegal

Sentence Pursuant to Crim. P. Rule 35(a).” We affirm the order

denying relief. However, we remand the case for further

proceedings consistent with this opinion.

I. Background

¶2 After killing his wife, Martinez-Fabela fled to Mexico with the

couple’s young daughter. He was ultimately apprehended and

charged, and he subsequently pleaded guilty to added counts of

second degree murder and second degree kidnapping in exchange

for the dismissal of a first degree murder count. In May 2010, the

district court sentenced him to forty-eight years in the custody of

the Department of Corrections for the murder and a consecutive

term of twelve years for the kidnapping.

¶3 Martinez-Fabela did not directly appeal, but he has filed

numerous postconviction motions over the past decade and a half,

including motions captioned under Crim. P. 35(a), (b), and (c).

¶4 In the July 2024 motion that is the subject of this appeal, he

asserted that the district court “had no subject matter jurisdiction”

because, although Martinez-Fabela admittedly took his daughter to

1 Mexico after killing her mother, he had an unrestricted right to do

so as the daughter’s parent. Thus, his “second degree kidnapping

conviction [could not] stand” because insufficient evidence existed

to prove that he seized and carried his daughter without consent or

lawful justification.

¶5 He further asserted that his sentence for kidnapping was

excessive and must be vacated in the interest of justice. The crux

of this claim was that the sentencing court improperly aggravated

his sentence in violation of various constitutional rights, including

those articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000),

and Blakely v. Washington, 542 U.S. 296 (2004).

¶6 The postconviction court denied the motion, concluding that

the first claim lacked merit and the second had been previously

raised and resolved.

II. Analysis

¶7 Martinez-Fabela contends that the postconviction court erred

by denying his requested relief. We disagree, though we affirm the

court’s order on different grounds. See Moody v. People, 159 P.3d

611, 615 (Colo. 2007) (holding that appellate court may affirm on

any basis supported by the record).

2 A. Standard of Review

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

motion under Rule 35(a) or (c). See Tennyson v. People, 2025 CO

31, ¶ 23 (Rule 35(a)); People v. Cali, 2020 CO 20, ¶ 14 (Rule 35(c)).

B. “Jurisdictional” Claim

¶9 Martinez-Fabela reasserts his claim that the district court

“had no jurisdiction on the kidnapping charge because [Martinez-

Fabela’s] actions didn’t constitute a crime given that it was his own

daughter [with whom] he fled . . . to Mexico.” As we understand

this argument, he claims that “lack of consent was a necessary

element of [his kidnapping conviction],” but the evidence did not

support this element because his daughter, as a minor, could not

give consent. Rather, as her parent, only he could (and did). We

conclude, however, that Martinez-Fabela’s “jurisdictional” claim

does not challenge the district court’s subject matter jurisdiction at

all.

¶ 10 Although Rule 35(a) authorizes a court to correct a sentence

imposed without jurisdiction at any time, a sentence is only so

imposed when it is “in excess of the court’s subject matter

jurisdiction.” People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.

3 2006). “Subject matter jurisdiction concerns a court’s authority to

deal with the class of cases in which it renders judgment.” People v.

Sims, 2019 COA 66, ¶ 14. A court has subject matter jurisdiction

“where it has been empowered to entertain the type of case before it

by the sovereign from which the court derives its authority.” Wood

v. People, 255 P.3d 1136, 1140 (Colo. 2011). And article VI, section

9(1) of the Colorado Constitution vests district courts with original

jurisdiction in all criminal cases. Sims, ¶ 14. A district court’s

jurisdiction is invoked by the filing of a legally sufficient charge.

See id. at ¶ 15. If the charge identifies the essential elements of the

crime in the language of the statute, it is legally sufficient. Id. at

¶ 16.

¶ 11 Martinez-Fabela does not call into question the legal

sufficiency of the second degree kidnapping charge to which he

pleaded guilty. Instead, he asserts that the evidence — in

particular, the actions he undertook in taking his daughter to

Mexico — was insufficient to support a finding that he committed

the offense. This is not a challenge to the court’s subject matter

jurisdiction cognizable under Rule 35(a) but rather a challenge to

the sufficiency of the evidence supporting Martinez-Fabela’s

4 conviction cognizable under Rule 35(c). See People v. Nunez, 673

P.2d 53, 54 (Colo. App. 1983) (holding that “sufficiency of the

evidence is a constitutional issue, cognizable under [Rule] 35(c)(2)”);

see also McCoy v. People, 2019 CO 44, ¶ 20 (holding that

sufficiency-of-the-evidence claims are rooted in “due process,

namely, that ‘no person shall be made to suffer the onus of a

criminal conviction except upon sufficient proof’” (citation omitted));

People v. Collier, 151 P.3d 668, 670 (Colo. App. 2006) (noting a

postconviction motion is properly brought under Rule 35(c) when

the defendant challenges the constitutionality of his conviction or

sentence).

¶ 12 Rule 35(c) claims are subject to certain procedural bars. A

court must deny such claims if they are raised after the three-year

time limitation for collateral attacks on non-class 1 felony

convictions, unless certain exceptions apply. See § 16-5-402(1), (2),

C.R.S. 2025.

¶ 13 Martinez-Fabela did not raise the instant claim until 2024.

But his felony conviction for kidnapping occurred when he was

sentenced in May 2010 and did not directly appeal. See People v.

Hampton, 857 P.2d 441, 444 (Colo. App. 1992) (“[F]or purposes of

5 section 16-5-402(1) and postconviction review, a conviction occurs

when the trial court enters judgment and sentence is imposed, if

there is no appeal.”), aff’d, 876 P.2d 1236 (Colo. 1994).1 Thus, as

Martinez-Fabela’s motion did not allege that an exception to section

16-5-402(1)’s time bar applies here, he had until May 2013 to raise

the asserted claim. See People v. Clouse, 74 P.3d 336, 340 (Colo.

App. 2002) (holding that the defendant has the burden to allege and

establish an exception to the time bar set forth in section

16-5-402(1)). Accordingly, Martinez-Fabela’s challenge to the

sufficiency of the evidence supporting his kidnapping conviction is

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,

1 True, a division of this court determined in 2016 that a

component of Martinez-Fabela’s sentence was illegal. People v. Martinez-Fabela, slip op. at 2 (Colo. App. No. 15CA1194, May 26, 2016) (not published pursuant to C.A.R. 35(e)). But that illegality did not reset the clock for any and all Rule 35(c) claims. See Hunsaker v. People, 2021 CO 83, ¶ 26 (“A defendant who successfully corrects an illegal sentence may thereafter collaterally attack their conviction, but they may only raise arguments addressing how the illegality in the sentence potentially affected the original conviction.”).

6 regardless of whether the issue of timeliness was raised in the trial

court.”).

¶ 14 Having so concluded, we need not address whether it is also

subject to the successiveness bars set forth in Rule 35(c)(3)(VI) and

(VII) (setting forth the successiveness bars that require a court to

deny Rule 35(c) claims raised and resolved, or that could have been

raised, in a previous postconviction proceeding or appeal).2

C. Other Claims

¶ 15 First, beyond a summary statement that his second degree

kidnapping sentence “is excessive,” Martinez-Fabela’s opening brief

does not present any argument related to his claim that the

sentencing court aggravated his sentence in violation of his

constitutional rights. See People v. Rodriguez, 914 P.2d 230, 249

(Colo. 1996) (holding that the failure to specifically reassert on

appeal postconviction claims resolved by the district court is a

conscious relinquishment of those claims). In any event, claims

alleging constitutional defects, including the error alleged in

2 Our review of the record suggests that at least one motion filed on

March 27, 2017, appears to have never been resolved though counsel was appointed to address it.

7 Martinez-Fabela’s motion under Apprendi and Blakely, are

cognizable under Rule 35(c) and thus fail because, as explained

above, they are time barred. See Collier, 151 P.3d at 670;

Wenzinger, 155 P.3d at 419 (holding that a challenge to an

aggravated range sentence as contrary to the Sixth Amendment

right to a jury determination of all facts that impact the maximum

sentence falls within the ambit of Rule 35(c)).

¶ 16 Second, in his opening brief, Martinez-Fabela asserts that his

defense counsel “was deficient” for (1) “not investigating the

statutes . . . as applied to [his] guilty plea”; (2) failing to “correct a

due process violation”; and (3) failing to correctly advise him in

regard to his plea. Martinez-Fabela did not raise these claims in his

motion; therefore, we will not address them. See DePineda v. Price,

915 P.2d 1278, 1280 (Colo. 1996) (“Issues not raised before the

district court in a motion for postconviction relief will not be

considered on appeal of the denial of that motion.”). Likewise, to

the extent Martinez-Fabela asserts new claims for the first time in

his reply brief, we will not consider them. See People v. Owens,

2024 CO 10, ¶ 90 (“[I]t is well-settled that an appellate court will

8 not consider arguments raised for the first time in a reply

brief . . . .”).

D. Restitution

¶ 17 In the factual background section of his opening brief,

Martinez-Fabela notes that, in People v. Martinez-Fabela, (Colo. App.

No. 15CA1194, May 26, 2016) (not published pursuant to C.A.R.

35(e)), a division of this court remanded his case back to the district

court for a hearing on restitution. The division did so after

concluding that Martinez-Fabela’s original sentence was illegal

because the district court failed to consider restitution under

section 18-1.3-603(1), C.R.S. 2015. Martinez-Fabela, No.

15CA1194, slip op. at 2 (noting that the district court, despite

acknowledging its failure to consider restitution at sentencing,

concluded that “it did not need to consider restitution” where the

failure to do so was harmless because the defendant was not

“subject to” restitution). The division’s remedy for this failure was

to remand “for consideration of restitution in compliance with

section 18-1.3-603(1).” Id. at 3.

9 ¶ 18 The record indicates that, upon remand, the district court

entered a post-sentencing restitution order in the amount of

$1,800.

¶ 19 Martinez-Fabela’s opening brief “puts this court on ‘notice’

that it needs to re-visit” restitution pursuant to Snow v. People,

2025 CO 32, and remand his case to vacate the post-sentencing

restitution order issued following the remand in Martinez-Fabela,

No. 15CA1194. Based on Snow, which the district court didn’t have

the benefit of when it entered its restitution order, we agree that

vacatur of the post-sentencing restitution order is appropriate.

¶ 20 In the Rule 35(a) context, Snow determined that when — as

here — a sentencing court fails to include any of the four

enumerated restitution orders required by section 18-1.3-603(1) in

the judgment, the resulting sentence is not authorized by law and

may be challenged at any time. Snow, ¶¶ 1-2. However, unlike the

division in Martinez-Fabela, No. 15CA1194, the supreme court in

Snow concluded that the remedy for such an illegal sentence was to

remand for entry of an order that no restitution is owed. Snow,

¶¶ 23, 30. Thus, Snow concluded, the defendant was “entitled to

vacatur of the post-sentencing restitution order and entry of an

10 order of no restitution.” Id. at ¶ 30. Consequently, we must

remand this case for vacatur of the post-sentencing restitution

order and entry of an order that no restitution is owed. See

Whiteaker v. People, 2024 CO 25, ¶¶ 27-28 (noting that appellate

courts have the power and the duty to correct an illegal sentence).

III. Disposition

¶ 21 The order denying postconviction relief is affirmed, and the

case is remanded with instructions to vacate the post-sentencing

restitution order and enter an order that no restitution is owed.

JUDGE FOX and JUDGE SULLIVAN concur.