Peo v. Mullinex

• Court: Colorado Court of Appeals
• Decided: August 21, 2025
• Docket: 23CA2118
• Status: Unpublished

Opinion

23CA2118 Peo v Mullinex 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2118 Mesa County District Court No. 00CR543 Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shawn Mullinex,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025

Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Shawn Mullinex appeals the Mesa County District Court’s (the

postconviction court) order denying his most recent Crim. P. 35(c)

motion. We affirm.

I. Background

¶2 The State charged Mullinex with numerous offenses, as well as

three habitual criminal counts. He pleaded guilty to two of the

counts, and a jury convicted him of all but one of the remaining

substantive counts. The district court subsequently found that the

prosecution had proved all three habitual criminal counts and

adjudicated Mullinex an habitual criminal. As relevant here, one of

the three habitual criminal counts was based on Mullinex’s felony

menacing conviction (the menacing conviction) in Las Animas

County criminal case number 98CR171.

¶3 The district court imposed a lengthy, aggregate habitual

criminal sentence. A division of this court affirmed in part and

reversed in part the judgment of conviction and sentences, and it

remanded the case for the court to merge some of the convictions.

See People v. Mullinex, (Colo. App. No. 01CA0754, Nov. 21, 2002)

(not published pursuant to C.A.R. 35(f)). The mandate issued in

October 2003.

1 ¶4 Mullinex filed multiple postconviction motions and appeals,

most of which were unsuccessful. See People v. Mullinex, (Colo.

App. No. 15CA0565, Feb. 16, 2017) (not published pursuant to

C.A.R. 35(e)); People v. Mullinex, (Colo. App. No. 06CA0951, Jan. 31,

2008) (not published pursuant to C.A.R. 35(f)). In September 2018,

the postconviction court granted Mullinex’s request to amend the

mittimus to reflect discretionary, rather than mandatory, parole.

¶5 In August 2021, Mullinex filed a pro se Crim. P. 35(c) motion

in which he asserted claims of ineffective assistance of counsel and

district court error and requested a proportionality review of his

sentence. Among other claims, he argued that the district court

erred by adjudicating him an habitual criminal because the

menacing conviction was invalid. The postconviction court

appointed alternate defense counsel (ADC) to represent Mullinex in

connection with the Crim. P. 35(c) motion.

¶6 Around that time, the Las Animas County District Court

granted Mullinex’s postconviction motion in case number 98CR171,

finding that Mullinex had received the ineffective assistance of plea

counsel. The court vacated the menacing conviction, withdrew

Mullinex’s guilty plea, and reinstated the original charges.

2 ¶7 ADC then filed a supplemental Crim. P. 35(c) motion in this

case, asserting that the postconviction court was required to accept

the Las Animas County District Court’s determination and revisit

the habitual criminal adjudication. Alternatively, he argued that

trial counsel was ineffective for failing to collaterally challenge the

now-vacated menacing conviction.

¶8 Before the resolution of Mullinex’s Crim. P. 35(c) motion in

this case, however, a division of this court reversed the Las Animas

County District Court’s postconviction order entered in case

number 98CR171 and reinstated the judgment of conviction. See

People v. Mullinex, (Colo. App. No. 21CA1485, Sept. 1, 2022) (not

published pursuant to C.A.R. 35(e)). The division concluded that

the court should have denied as successive the motion filed in case

number 98CR171.

¶9 Mullinex filed a motion in this case to hold his Crim. P. 35(c)

motion in abeyance pending the resolution of his petition for

certiorari filed in the supreme court regarding appellate case

number 21CA1485. The postconviction court granted the motion to

hold the Crim. P. 35(c) motion in abeyance.

3 ¶ 10 After the supreme court denied Mullinex’s petition for

certiorari, see Mullinex v. People, (Colo. No. 22SC783, Mar. 20,

2023) (unpublished order), ADC filed supplemental motions in this

case, asserting that, notwithstanding the disposition of the

postconviction proceedings regarding case number 98CR171,

Mullinex had a viable ineffective assistance claim due to trial

counsel’s failure to challenge the infirmity of the menacing

conviction. ADC also argued that, in addition to trial counsel,

postconviction counsel whom the postconviction court appointed in

2005 to represent Mullinex on his first postconviction motion in this

case was ineffective for failing to challenge the district court’s use of

the menacing conviction in case number 98CR171 to adjudicate

him an habitual criminal.

¶ 11 In a written order, the postconviction court denied Mullinex’s

Crim. P. 35(c) motion, finding that it was successive and untimely

and that he failed to establish an exception to those procedural

bars.

II. Legal Authority and Standard of Review

¶ 12 Subject to certain enumerated exceptions, a court must deny a

Crim. P. 35(c) claim that was, or could have been, raised and

4 resolved in a prior appeal or postconviction proceeding on behalf of

the same defendant. Crim. P. 35(c)(3)(VI), (VII).

¶ 13 Further, a defendant must file a Crim. P. 35(c) motion within

three years of the conviction for an offense other than a class 1

felony. § 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). Where, as

here, a defendant filed a direct appeal, the term “conviction” in

section 16-5-402(1) means the date the mandate issues in the

direct appeal affirming the conviction. Hunsaker v. People, 2021

CO 83, ¶ 36, 500 P.3d 1110, 1118; People v. Hampton, 876 P.2d

1236, 1240 (Colo. 1994). But a postconviction claim must be

excluded from the three-year time limitation when a trial court finds

that the “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).

¶ 14 We review de novo the summary denial of a Crim. P. 35(c)

motion. People v. Cali, 2020 CO 20, ¶ 14, 459 P.3d 516, 519.

III. Analysis

¶ 15 We conclude that the postconviction court did not err by

denying, as procedurally barred, Mullinex’s ineffective assistance

claim against trial and postconviction counsel.

5 ¶ 16 First, Mullinex argues that his 2021 motion was timely filed

within three years of the 2018 amendment to the mittimus, which

corrected an illegality in the parole component of his sentence. The

People disagree that the amendment to the mittimus constituted

such a correction. Assuming the amendment corrected an illegal

sentence, we are not convinced that it rendered the 2021 motion

timely filed.

¶ 17 While the correction of an illegal sentence renews section

16-5-402(1)’s three-year time limit for collaterally attacking a

judgment of conviction, “the corrected sentence only allows

defendants to raise arguments addressing how the illegality in their

sentence potentially affected the original conviction.” Hunsaker,

¶ 3, 500 P.3d at 1112. Mullinex failed to explain how his

underlying ineffective assistance claim regarding the habitual

criminal adjudication relates to the correction of an illegality in the

parole component of his sentence.

¶ 18 Next, Mullinex asserts that, if his motion was untimely, the

postconviction court failed to explain why the untimely filing of the

motion was not the result of justifiable excuse or excusable neglect.

We agree that the court made a general finding that the delay was

6 not attributable to justifiable excuse. But we conclude that any

error in the sufficiency of the court’s finding was harmless. See

People v. Hartkemeyer, 843 P.2d 92, 92 (Colo. App. 1992) (a court’s

failure to make findings of fact or conclusions of law in denying a

Crim. P. 35(c) motion does not require reversal if the error was

harmless).

¶ 19 Mullinex asserted in his motion that he did not timely seek

relief because counsel, the prosecution, and the court all advised

him that the menacing conviction “was constitutionally sound.”

The record does not support this assertion.

¶ 20 Accepting as true the allegation that he received such advice,

Mullinex nevertheless repeatedly raised postconviction challenges to

the validity of his predicate convictions and the use of those

convictions to adjudicate him an habitual criminal. Indeed, in a

2014 postconviction motion, Mullinex expressly challenged the

validity of the menacing conviction. And, in a 2018 motion to

suppress the use of his three prior convictions to adjudicate him an

habitual criminal, he argued for the application of the justifiable

excuse or excusable neglect exception to the time bar. Finally,

7 Mullinex challenged the menacing conviction in 2015 and 2018

motions filed in case number 98CR171.

¶ 21 On appeal, Mullinex argues that the untimely filing of the

underlying motion was excusable because, before he filed it, he had

no reason to know that he had a legitimate claim to collaterally

attack the menacing conviction, and the prosecutor’s ability to

defend against the challenge was not impaired.

¶ 22 Generally, we do not address justifiable excuse or excusable

neglect arguments raised for the first time on appeal. See People v.

Ortega, 899 P.2d 236, 239 (Colo. App. 1994); see also People v.

Goldman, 923 P.2d 374, 375 (Colo. App. 1996). But we

nevertheless conclude that Mullinex’s history of repeatedly

challenging the validity of his prior convictions undermines his

appellate assertion that he had no reason to know that counsel was

allegedly ineffective for failing to challenge the validity of his prior

convictions.

¶ 23 Last, Mullinex argues that his motion was not subject to

denial as successive because his prior postconviction proceedings

and appeals “did not concern [trial counsel] and [postconviction

counsel’s] failure to investigate, litigate and collaterally attack” the

8 menacing conviction. Again, it appears that Mullinex asserts this

argument for the first time on appeal. See Goldman, 923 P.2d at

375. Nevertheless, Mullinex fails to explain why he could not have

raised the underlying claim earlier and why a court could not have

previously resolved it. See Crim. P. 35(c)(3)(VII).

¶ 24 Likewise, we decline to address arguments raised for the first

time in a reply brief. See People v. Grant, 174 P.3d 798, 803 (Colo.

App. 2007). And any claim not reasserted on appeal is abandoned.

See People v. Brooks, 250 P.3d 771, 772 (Colo. App. 2010).

IV. Disposition

¶ 25 The order is affirmed.

JUDGE PAWAR and JUDGE LUM concur.