23CA0239 Peo v Merchant 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0239 Douglas County District Court No. 10CR403 Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Thomas Phil Merchant,
Defendant-Appellant.
ORDER AFFIRMED AND APPEAL DISMISSED IN PART
Division V Opinion by JUDGE GROVE Welling and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Thomas Phil Merchant, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion. We dismiss a
portion of Merchant’s appeal and otherwise affirm the court’s order.
I. Background
¶2 In 2010, Merchant was arrested and charged with theft by
receiving, a traffic offense, and five habitual criminal charges. He
pleaded not guilty and a jury trial was scheduled for August 2011.
The case then progressed as follows:
• On July 29, 2011, Merchant waived his right to a speedy
trial. The trial was rescheduled for November 28, 2011.
• On August 23, 2011, the trial court was notified that
Merchant had been arrested in Wyoming on a warrant from
Nebraska. He was incarcerated in Nebraska from August
2011 until August 2014.
• On August 24, 2011, after learning of the Wyoming arrest,
the trial court issued a no bond hold warrant for Merchant.
• On November 22, 2011, Merchant’s counsel requested that
the jury trial be vacated. The motion was granted.
• In September 2014, after he had completed his sentence in
Nebraska and returned to Colorado, Merchant appeared on
1 the warrant and the court set a monetary bond. Merchant
then appeared with his attorney and waived speedy trial.
The trial was subsequently set for January 21, 2015.
• On the morning of the first day of trial, defense counsel
orally moved to dismiss the case, arguing that Merchant’s
constitutional right to a speedy trial had been violated by
the delay in bringing him to trial. The court denied the
motion.
• A jury found Merchant guilty of theft by receiving and the
traffic offense. He was subsequently convicted of the five
habitual criminal counts. Merchant was sentenced to forty-
eight years in the custody of the Department of Corrections.
• After trial, Merchant filed a motion raising, among other
things, the constitutional speedy trial issue. The court
denied the motion.
• Merchant, through counsel, filed a direct appeal in which
he argued that the evidence presented at trial was
insufficient to support his conviction, challenged the
admission of certain evidence offered by the prosecution,
and asserted that he should receive the benefit of
2 amendatory legislation that would have the effect of
reducing his prison sentence. The appeal did not assert
that Merchant’s constitutional speedy trial rights had been
violated. A division of this court affirmed his convictions
and sentence. See People v. Merchant, (Colo. App. No.
15CA0811, Jan. 12, 2017) (not published pursuant to
C.A.R. 35(e)).
• Merchant filed a petition for a writ of certiorari. After
deciding People v. Stellabotte, 2018 CO 66, the Colorado
Supreme Court granted certiorari on the sentencing
question, vacated the division’s opinion, and remanded the
case. The division vacated Merchant’s sentence. See People
v. Merchant, (Colo. App. No. 15CA0811, Jan. 17, 2019) (not
published pursuant to C.A.R. 35(e)).
• On remand to the trial court, Merchant was resentenced to
a sentence of twenty-four years in the custody of the
Department of Corrections.
¶3 Merchant then filed a timely pro se Crim. P. 35(c) petition for
postconviction relief. As relevant to this appeal, he claimed that the
trial court violated his right to a speedy trial and that his direct
3 appeal counsel was ineffective because he “did not bring the issue
of speedy trial violation to the higher court.”1 Although Merchant’s
pro se motion mentioned both the constitutional and statutory right
to a speedy trial, he did not develop any substantive argument
concerning the constitutional right. The postconviction court
appointed counsel, who filed a two-page document titled “Adoption
and Amendment of Crim. P. 35(c) Petition for Relief.”
Acknowledging that Merchant’s pro se motion had “base[d] his
speedy trial argument on a violation of [section 18-1-405, C.R.S.
2024],” postconviction counsel “amend[ed]” Merchant’s pro se
motion “[t]o include the authority of the Sixth Amendment to the
United States Constitution and Art. 2, Sec. 16 of the Colorado
Constitution.” Like the pro se motion, however, postconviction
counsel’s supplemental motion did not offer any substantive
explanation of how Merchant’s constitutional speedy trial rights had
been violated. And, although the supplement mentioned
1 Merchant also claimed that trial counsel was ineffective and that
the trial court lacked jurisdiction over his claims. He has abandoned those arguments on appeal. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007) (“[C]laims raised in [a] defendant’s postconviction motion, but not reasserted [on appeal], have been abandoned on appeal.”).
4 Merchant’s pro se claim regarding direct appeal counsel’s
performance — specifically, the omission of a constitutional speedy
trial claim on direct appeal — it did not include any additional
argument on that claim at all.
¶4 Approximately six weeks later, Merchant filed a pro se
“Petition for a Writ of Habeas Corpus,” in which he argued that his
sentence was constitutionally disproportionate and requested that
the court provide him with “a new Habitual Sentencing hearing that
includes a new abbreviated proportionality review.” The court
denied Merchant’s Crim. P. 35(c) motion in a written order a few
days later. Its order did not address the “habeas” petition.
¶5 Merchant appeals, arguing that the court erred by failing to
hold a hearing on (1) his constitutional speedy trial claim; (2) his
claim that direct appeal counsel was ineffective; and (3) his request
for an abbreviated proportionality review.
II. The Postconviction Court’s Order
¶6 Merchant’s appeal includes two interrelated constitutional
speedy trial claims: (1) that the trial court should have granted his
pretrial motion to dismiss because the delay in bringing him to trial
violated his constitutional speedy trial right, and (2) that direct
5 appeal counsel provided ineffective assistance of counsel by failing
to challenge the trial court’s constitutional speedy trial ruling.
¶7 As we have already discussed, however, Merchant’s pro se
motion raised only a statutory speedy trial claim. Postconviction
counsel’s supplement incorporated that argument and then
purported to “amend” Merchant’s pro se motion to add a
constitutional speedy trial claim. The constitutional claim added by
counsel, however, was cursory in the extreme. Indeed, it did no
more than cite the relevant portions of the Federal and Colorado
Constitutions and assert that counsel was adding the constitutional
claim because section 18-1-405, the speedy trial statute,
“implement[s] . . . the constitutional rights to a speedy trial.”
¶8 In a written order analyzing the constitutional speedy trial
factors outlined in Barker v. Wingo, 407 U.S. 514, 525 (1972), based
on Merchant’s motion, the supplement, the existing record, and the
People’s response, the court concluded that (1) the delay between
Merchant’s arraignment and trial was “more than four and a half
years,” but (2) most of the delay was “attributable to Merchant,”
(3) Merchant did not assert his speedy trial right until the first day
of his trial, and had entered several speedy trial waivers before
6 then, and (4) the motion and supplement did not assert that
Merchant was prejudiced as a result of the delay. The court thus
found that there had been no violation of Merchant’s constitutional
speedy trial right. Although the court discussed Merchant’s
repeated waivers of his statutory right to a speedy trial, it did not
explicitly resolve his statutory speedy trial claim.
¶9 Turning to Merchant’s allegation of ineffective assistance of
direct appeal counsel, the court observed that Merchant had not
“assert[ed] that the speedy trial issue was stronger than the other
issues raised in the appeal.” Accordingly, based on the holding in
People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007), the court
appears to have concluded that the omission of that argument was
a strategic decision. In any event, however, the court ruled in the
alternative that Merchant would have been unlikely to prevail on a
constitutional speedy trial claim even if it had been raised on direct
appeal.
III. Standard of Review and Applicable Law
¶ 10 We review a postconviction court’s denial of a Crim. P. 35(c)
motion without a hearing de novo. People v. Wilson, 397 P.3d 1090,
1094 (Colo. App. 2011), aff’d, 2015 CO 37. We also review
7 interpretations of the rules of criminal procedure de novo, People v.
Corson, 2016 CO 33, ¶ 44, including whether a postconviction
motion is successive, People v. Thompson, 2020 COA 117, ¶ 42.
¶ 11 Crim. P. 35(c) permits postconviction review of alleged
constitutional errors in criminal proceedings. People v. Sherman,
172 P.3d 911, 915-16 (Colo. App. 2006). A postconviction court
may deny a Rule 35(c) motion without a hearing when (1) the
motion, files, and record clearly establish that the defendant is not
entitled to relief; (2) the allegations, even if true, do not provide a
basis for relief; or (3) the claims are bare and conclusory in nature
and lack supporting factual allegations. See Crim. P. 35(c)(3)(IV);
People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). If a court
summarily denies a postconviction motion, it “shall enter written
findings of fact and conclusions of law in denying the motion.”
Crim. P. 35(c)(3)(IV).
¶ 12 The Rule also bars successive postconviction claims. A Crim.
P. 35(c) claim is successive if it was previously raised and resolved
or could have been previously raised and resolved in a prior appeal
or postconviction proceeding. Crim. P. 35(c)(3)(VI)-(VII). “Rule 35
proceedings are intended to prevent injustices after conviction and
8 sentencing, not to provide perpetual review.” People v. Rodriguez,
914 P.2d 230, 249 (Colo. 1996). Subject to exceptions inapplicable
here, a court is required to deny any successive postconviction
claims. See Crim. P. 35(c)(3)(VI)-(VII).
IV. Constitutional Speedy Trial
¶ 13 We decline to address Merchant’s constitutional speedy trial
claim because, even if we were to assume that it was adequately
asserted in Merchant’s postconviction motion or supplement, it is
successive. As noted above, Crim. P. 35(c)(3)(VII) requires dismissal
of a claim that, in the exercise of due diligence, could have been
presented in a prior appeal or postconviction proceeding. See
People v. Valdez, 178 P.3d 1269, 1275 (Colo. App. 2007). This rule
is mandatory, meaning a postconviction court must deny a
procedurally barred claim. People v. Taylor, 2018 COA 175, ¶ 17.
¶ 14 Merchant does not deny that his constitutional speedy trial
claim could have been included in his direct appeal. Indeed, his
contention that direct appeal counsel was ineffective because he
omitted that issue demonstrates that it could have been raised in
9 an earlier proceeding.2 Nor does he contend that any of the
exceptions in Crim. P. 35(c)(3)(VII) apply.
¶ 15 Instead, in his reply brief, Merchant urges us to overlook the
bar on successive postconviction motions in the interest of judicial
economy and address the issues he raises due to the “obvious
ineffectiveness of postconviction counsel that prevented proper
presentation of Merchant’s constitutional claims.” While we
recognize the existence of authority that provides us with some
flexibility in this area, see, e.g., People v. Huggins, 2019 COA 116,
¶ 19, we are not persuaded that judicial economy would be
furthered by either addressing the merits of Merchant’s
constitutional speedy trial claim or reversing the postconviction
court’s order. We therefore conclude that the postconviction court
appropriately ruled that Merchant was not entitled to a hearing on
his constitutional speedy trial claims, albeit on different grounds.
See People v. Glover, 2015 COA 16, ¶ 22 (holding that an appellate
court may affirm a postconviction court’s ruling on grounds
2 Constitutional speedy trial claims may be, and frequently are,
raised on direct appeal. See, e.g., People v. West, 2019 COA 131, ¶¶ 6-15; People v. Jompp, 2018 COA 128, ¶¶ 28-34; People v. Valles, 2013 COA 84, ¶¶ 44-51.
10 different from those employed by the postconviction court, as long
as they are supported by the record).
V. Direct Appeal Counsel
¶ 16 As we have already noted, Merchant’s claim that he received
ineffective assistance of counsel in his direct appeal is based on his
constitutional speedy trial claim. In particular, he argues that
direct appeal counsel was ineffective because the appeal he filed did
not raise the constitutional speedy trial issue, and that if it had, the
result of the appeal would have been different. The postconviction
court rejected this claim without holding a hearing, and we discern
no error in that ruling.
A. Applicable Law
¶ 17 Both the United States and Colorado Constitutions guarantee
a criminal defendant a right to the effective assistance of counsel.
U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. The United
States Supreme Court established the test for the ineffective
assistance of counsel in Strickland v. Washington, 466 U.S. 668
(1984). To prevail on an ineffective assistance of counsel claim, a
defendant must prove that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the defense. Id. at
11 687. Unless both showings are made, a defendant has not proved
that he was denied the effective assistance of counsel. Id.
¶ 18 For the performance prong, a defendant must prove that
counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 688. In conducting the reasonableness
inquiry, a court must make “every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. And “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id.
¶ 19 For the prejudice prong, a defendant must show that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. “Only where both the
performance prong and the prejudice prong have been proven will a
defendant be entitled to postconviction relief because of the
ineffective assistance of counsel.” Dunlap v. People, 173 P.3d 1054,
1063 (Colo. 2007). “Because a defendant must show both deficient
12 performance and prejudice, a court may resolve the claim solely on
the basis that the defendant has failed in either regard.” People v.
Romero, 2015 COA 7, ¶ 25.
¶ 20 “The same two-part Strickland test applies to claims of
ineffective assistance of appellate counsel.” People v. Long, 126
P.3d 284, 286 (Colo. App. 2005). To demonstrate the performance
prong, “the defendant must show that counsel failed to present the
case effectively. For example, a defendant could demonstrate error
by showing that appellate counsel ignored issues that are clearly
stronger than those presented.” Id. But “[a]ppellate counsel is not
required to raise on appeal every nonfrivolous issue a defendant
desires to raise.” Trujillo, 169 P.3d at 238. “‘[O]nly when ignored
issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome,’ even in
the context of a direct appeal.” Id. (quoting Ellis v. Hargett, 302
F.3d 1182, 1189 (10th Cir. 2002)). “To demonstrate prejudice, the
defendant must show a reasonable probability [of success].” Long,
126 P.3d at 286.
13 B. The Postconviction Motion
¶ 21 In his pro se postconviction motion, Merchant alleged in
pertinent part:
The trial court denied Merchant’s Motion to Dismiss due to a Speedy Trial Violation. The defendant contends that this was error on the Court’s part (see Issue #1, above [the Speedy Trial Argument]). The court denied the motion, in part, due to the fact that Merchant ‘absented himself’ from trial due to incarceration in Nebraska . . . . The defendant was prejudiced by this omission in that the conviction was allowed to stand and he is currently serving a 24-year sentence in the Department of Corrections.
¶ 22 As discussed above, Merchant’s pro se motion arguably did
not raise, and certainly did not adequately develop, a constitutional
speedy trial argument. Moreover, although postconviction counsel
did make it clear that he intended to pursue the constitutional
speedy trial issue, the supplement did not include any substantive
argument and barely even mentioned Merchant’s claim of ineffective
assistance of direct appeal counsel. The postconviction court could
have denied the motion on this ground alone. See People v. Osorio,
170 P.3d 796, 799 (Colo. App. 2007) (holding that a district court
may deny a claim of ineffective assistance of counsel if the claim is
14 bare and conclusory in nature, or lacks supporting factual
allegations). Nonetheless, based on the limited information it had,
the court conducted a detailed analysis of Merchant’s constitutional
speedy trial claim and ultimately concluded that it was unlikely to
prevail on the merits. As a result of the substantive argument’s
weakness, the court concluded, direct appeal counsel was not
ineffective for failing to pursue it.
¶ 23 We discern no error in the court’s ruling. In order to prevail
on his ineffective assistance claim, Merchant would eventually have
needed to establish that the underlying constitutional speedy trial
claim was viable. Otherwise, he would not be able to establish
Strickland’s prejudice prong. And while he did not need to set forth
detailed evidentiary support for the allegations in his Rule 35(c)
motion in order to qualify for a hearing, see People v. Delgado, 2019
COA 55, ¶ 33, it was still incumbent on him to advance a colorable
claim. Neither the pro se motion nor the supplement did so. For
example, neither filing even mentioned the factors relevant to
evaluating a constitutional speedy trial claim outlined in Barker.
Instead, the pro se motion focused on arguments related to
statutory speedy trial claims, and the supplement merely
15 mentioned that Merchant’s motion had a constitutional angle as
well. Without some allegations concerning the Barker factors —
especially prejudice — Merchant could not have qualified for relief.
See, e.g., United States v. Larson, 627 F.3d 1198, 1210-11 (10th Cir.
2010) (concluding that the applicant “fail[ed] to show prejudice,” in
part because his “generalized and conclusory references to the
anxiety and distress that purportedly are intrinsic to incarceration
are not sufficient to demonstrate particularized prejudice”).
¶ 24 To succeed on his ineffective assistance claim, Merchant
would eventually need to carry the burden of demonstrating that,
but for counsel’s errors, he would have prevailed on direct appeal.
See Long, 126 P.3d at 286. Similarly, to qualify for a hearing,
Merchant needed to make allegations that would support a
conclusion that there was a reasonable probability his
constitutional speedy trial claim would succeed on direct appeal.
Because his Crim. P. 35(c) motion made no allegations that would
support such a finding, the postconviction court correctly ruled that
no hearing was required.
16 VI. Habeas Petition
¶ 25 The parties agree that Merchant’s “habeas petition,” filed on
October 14, 2022, should be construed as a Crim. P. 35(c) motion
based on its substance. DePineda v. Price, 915 P.2d 1278, 1280
(Colo. 1996) (“A habeas corpus petition [that seeks relief available
under Crim. P. 35] should be treated as a Crim. P. 35 motion based
upon the substantive constitutional issues raised therein, rather
than [upon] the label placed on the pleading.” (quoting White v.
Denver Dist. Ct., 766 P.2d 632, 634 (Colo. 1988))).
¶ 26 However, the court never ruled on Merchant’s habeas petition
and its associated claim that his twenty-four-year sentence was
unconstitutionally disproportionate under the Eighth Amendment.
Without an appealable postconviction order, we lack jurisdiction to
consider this claim. § 13-4-102(1), C.R.S. 2024. We therefore
dismiss this portion of Merchant’s appeal.
VII. Disposition
¶ 27 We affirm the postconviction court’s order and dismiss the
appeal to the extent that it seeks review of Merchant’s habeas
petition.
JUDGE WELLING and JUDGE JOHNSON concur.