24CA0923 Peo v Nakai 05-21-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0932 La Plata County District Court No. 07CR294 Honorable Jeffrey R. Wilson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Harold Nakai,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division A Opinion by JUSTICE MARTINEZ* C.J. Román, and Taubman*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Harold Nakai, appeals the district court’s order
denying his Crim. P. 35(c) motion without a hearing. We reverse
the order and remand the case for further proceedings consistent
with this opinion.
I. Background
¶2 A jury convicted Nakai of sexual assault (physically helpless
victim) and criminally negligent homicide. His first appeal led to a
reversal on due process grounds and two new trials. See People v.
Nakai, slip op. at 18 (Colo. App. No. 08CA2443, May 15, 2014) (not
published pursuant to C.A.R. 35(f)). The jury in Nakai’s second trial
rendered a guilty verdict on the criminally negligent homicide count
but deadlocked on the sexual assault count. The jury in Nakai’s
third trial delivered a guilty verdict on the sexual assault count.
¶3 The district court sentenced Nakai to prison for forty-eight
years to life for the sexual assault conviction and a consecutive
three years for the criminally negligent homicide conviction. A
division of this court affirmed the judgment of conviction and
sentence. See People v. Nakai, (Colo. App. No. 17CA0187, Nov. 18,
2021) (not published pursuant to C.A.R. 35(e)).
1 ¶4 In August 2023, Nakai filed a pro se Crim. P. 35(c) motion, in
which he asserted claims of ineffective assistance of trial and direct
appeal counsel. Nakai requested the appointment of counsel.
Consistent with his request for counsel in the Crim. P. 35(c) motion,
Nakai also filed an “Application for a State Paid Professional” (form
application), asking the district court to appoint him counsel for his
Crim. P. 35(c) motion. Shortly thereafter, Nakai filed a “Motion for
Recusal in Rule 35(c) Proceedings,” asking the court to recuse itself
from the pending Crim. P. 35(c) proceedings.
¶5 In October 2023, the district court issued an order concerning
both the pro se Crim. P. 35(c) motion and the motion to recuse.
The court noted that the Crim. P. 35(c) motion was timely and
otherwise complied with Crim. P. 35(c)(3)(IV). The court
acknowledged Nakai’s request for counsel as one “which the Court
will approve by separate order.” The court then directed that “[t]he
clerk shall send a complete copy of the motion and the motion for
recusal to the special prosecutor and Public Defender’s Office.”
Finally, the court deferred ruling on the motion to recuse “until
after the prosecutor and defense counsel…have had a chance to
respond” The same day, the court issued a second order granting
2 Nakai’s request for counsel by checking a box labeled “Request
Granted” on Nakai’s form application and signing and dating that
form.
¶6 Approximately two weeks later, the prosecution filed a written
response objecting to Nakai’s motion to recuse. A public defender
never entered an appearance or otherwise responded to the court’s
order appointing counsel.
¶7 In March 2024, the district court issued an order denying
Nakai’s motion to recuse and his pro se Crim. P. 35(c) motion. As
pertinent here, the court noted that it had reviewed the Crim. P.
35(c) motion and found that it was timely filed but concluded that
the claims asserted therein were barred by Crim. P. 35(c)(3)(VI) or
otherwise without merit.
II. Discussion
¶8 Nakai contends that the order denying Crim P. 35(c) relief
must be reversed because either (1) the district court failed to follow
the procedural requirements of Crim. P. 35(c)(3)(V) or (2) the public
defender provided ineffective assistance by failing to respond as
required by Crim. P. 35(c)(3)(V). In the alternative, he contends that
3 the court erred by denying postconviction relief without appointing
counsel.
¶9 Because we conclude that the district court did not comply
with the procedures set forth in Crim. P. 35(c)(3)(V), we reverse the
order and remand the case for the court to forward a complete copy
of Nakai’s motion to the public defender, or alternate defense
counsel, and to conduct further proceedings in accordance with
Crim. P. 35(c)(3)(V).
A. Standards of Review and Reversal
¶ 10 We review de novo the denial of a Crim. P. 35(c) motion
without a hearing and the interpretation of the rules of criminal
procedure. See People v. Higgins, 2017 COA 57, ¶ 11.
¶ 11 If a district court’s order does not comply with the provisions
of Crim. P. 35(c)(3)(V), we review for harmless error. People v.
Nozolino, 2023 COA 39, ¶ 8. “An error is not harmless, as relevant
here, if it affected the fairness of the district court proceedings.”
Higgins, ¶ 16.
B. Preservation
¶ 12 We reject the People’s assertion that Nakai’s claim on appeal
was not preserved, and thus subject to plain error review, because
4 he did not challenge the procedure the district court implemented
in summarily denying his motion. Nakai requested counsel, and
this request was itself sufficient to preserve his challenge to the
court’s noncompliance with the procedures of Crim. P. 35(c)(3)(V).
See Nozolino, ¶ 9; Higgins, ¶¶ 6-10.
C. Analysis
¶ 13 Crim. P. 35(c)(3)(IV) permits a district court to deny a
defendant’s Crim. P. 35(c) motion without a hearing if the motion,
the files, and the record clearly show that the defendant is not
entitled to relief. Higgins, ¶ 4. If the court does not summarily
deny the motion under Crim. P. 35(c)(3)(IV), Crim. P. 35(c)(3)(V)
requires the court to serve a complete copy of the motion on the
prosecuting attorney and, if the defendant has requested counsel,
on the public defender. Higgins, ¶ 5. The public defender then
determines whether it can represent the defendant and, if so,
“which claims (if any) lack arguable merit and should be
abandoned, which arguably meritorious claims (if any) should be
supplemented, and which new claims (if any) have arguable merit
and should be added.” People v. Segura, 2024 CO 70, ¶ 7.
5 ¶ 14 The parties’ dispute centers around whether the district
court’s October order triggered the provisions of Crim. P. 35(c)(3)(V).
Nakia contends that it did. The People contend that because the
court indicated that it would “approve [the appointment of counsel]
by separate order,” and subsequently failed to do so, the October
order was not a final determination of the merits of the claims
raised in Nakai’s motion.
Free access — add to your briefcase to read the full text and ask questions with AI
24CA0923 Peo v Nakai 05-21-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0932 La Plata County District Court No. 07CR294 Honorable Jeffrey R. Wilson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Harold Nakai,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division A Opinion by JUSTICE MARTINEZ* C.J. Román, and Taubman*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Harold Nakai, appeals the district court’s order
denying his Crim. P. 35(c) motion without a hearing. We reverse
the order and remand the case for further proceedings consistent
with this opinion.
I. Background
¶2 A jury convicted Nakai of sexual assault (physically helpless
victim) and criminally negligent homicide. His first appeal led to a
reversal on due process grounds and two new trials. See People v.
Nakai, slip op. at 18 (Colo. App. No. 08CA2443, May 15, 2014) (not
published pursuant to C.A.R. 35(f)). The jury in Nakai’s second trial
rendered a guilty verdict on the criminally negligent homicide count
but deadlocked on the sexual assault count. The jury in Nakai’s
third trial delivered a guilty verdict on the sexual assault count.
¶3 The district court sentenced Nakai to prison for forty-eight
years to life for the sexual assault conviction and a consecutive
three years for the criminally negligent homicide conviction. A
division of this court affirmed the judgment of conviction and
sentence. See People v. Nakai, (Colo. App. No. 17CA0187, Nov. 18,
2021) (not published pursuant to C.A.R. 35(e)).
1 ¶4 In August 2023, Nakai filed a pro se Crim. P. 35(c) motion, in
which he asserted claims of ineffective assistance of trial and direct
appeal counsel. Nakai requested the appointment of counsel.
Consistent with his request for counsel in the Crim. P. 35(c) motion,
Nakai also filed an “Application for a State Paid Professional” (form
application), asking the district court to appoint him counsel for his
Crim. P. 35(c) motion. Shortly thereafter, Nakai filed a “Motion for
Recusal in Rule 35(c) Proceedings,” asking the court to recuse itself
from the pending Crim. P. 35(c) proceedings.
¶5 In October 2023, the district court issued an order concerning
both the pro se Crim. P. 35(c) motion and the motion to recuse.
The court noted that the Crim. P. 35(c) motion was timely and
otherwise complied with Crim. P. 35(c)(3)(IV). The court
acknowledged Nakai’s request for counsel as one “which the Court
will approve by separate order.” The court then directed that “[t]he
clerk shall send a complete copy of the motion and the motion for
recusal to the special prosecutor and Public Defender’s Office.”
Finally, the court deferred ruling on the motion to recuse “until
after the prosecutor and defense counsel…have had a chance to
respond” The same day, the court issued a second order granting
2 Nakai’s request for counsel by checking a box labeled “Request
Granted” on Nakai’s form application and signing and dating that
form.
¶6 Approximately two weeks later, the prosecution filed a written
response objecting to Nakai’s motion to recuse. A public defender
never entered an appearance or otherwise responded to the court’s
order appointing counsel.
¶7 In March 2024, the district court issued an order denying
Nakai’s motion to recuse and his pro se Crim. P. 35(c) motion. As
pertinent here, the court noted that it had reviewed the Crim. P.
35(c) motion and found that it was timely filed but concluded that
the claims asserted therein were barred by Crim. P. 35(c)(3)(VI) or
otherwise without merit.
II. Discussion
¶8 Nakai contends that the order denying Crim P. 35(c) relief
must be reversed because either (1) the district court failed to follow
the procedural requirements of Crim. P. 35(c)(3)(V) or (2) the public
defender provided ineffective assistance by failing to respond as
required by Crim. P. 35(c)(3)(V). In the alternative, he contends that
3 the court erred by denying postconviction relief without appointing
counsel.
¶9 Because we conclude that the district court did not comply
with the procedures set forth in Crim. P. 35(c)(3)(V), we reverse the
order and remand the case for the court to forward a complete copy
of Nakai’s motion to the public defender, or alternate defense
counsel, and to conduct further proceedings in accordance with
Crim. P. 35(c)(3)(V).
A. Standards of Review and Reversal
¶ 10 We review de novo the denial of a Crim. P. 35(c) motion
without a hearing and the interpretation of the rules of criminal
procedure. See People v. Higgins, 2017 COA 57, ¶ 11.
¶ 11 If a district court’s order does not comply with the provisions
of Crim. P. 35(c)(3)(V), we review for harmless error. People v.
Nozolino, 2023 COA 39, ¶ 8. “An error is not harmless, as relevant
here, if it affected the fairness of the district court proceedings.”
Higgins, ¶ 16.
B. Preservation
¶ 12 We reject the People’s assertion that Nakai’s claim on appeal
was not preserved, and thus subject to plain error review, because
4 he did not challenge the procedure the district court implemented
in summarily denying his motion. Nakai requested counsel, and
this request was itself sufficient to preserve his challenge to the
court’s noncompliance with the procedures of Crim. P. 35(c)(3)(V).
See Nozolino, ¶ 9; Higgins, ¶¶ 6-10.
C. Analysis
¶ 13 Crim. P. 35(c)(3)(IV) permits a district court to deny a
defendant’s Crim. P. 35(c) motion without a hearing if the motion,
the files, and the record clearly show that the defendant is not
entitled to relief. Higgins, ¶ 4. If the court does not summarily
deny the motion under Crim. P. 35(c)(3)(IV), Crim. P. 35(c)(3)(V)
requires the court to serve a complete copy of the motion on the
prosecuting attorney and, if the defendant has requested counsel,
on the public defender. Higgins, ¶ 5. The public defender then
determines whether it can represent the defendant and, if so,
“which claims (if any) lack arguable merit and should be
abandoned, which arguably meritorious claims (if any) should be
supplemented, and which new claims (if any) have arguable merit
and should be added.” People v. Segura, 2024 CO 70, ¶ 7.
5 ¶ 14 The parties’ dispute centers around whether the district
court’s October order triggered the provisions of Crim. P. 35(c)(3)(V).
Nakia contends that it did. The People contend that because the
court indicated that it would “approve [the appointment of counsel]
by separate order,” and subsequently failed to do so, the October
order was not a final determination of the merits of the claims
raised in Nakai’s motion. Instead, the People contend that the
court’s later March order was the court’s “final order.” Thus, the
People conclude that because the March order summarily denied
Nakai’s claims under Crim. P. 35(c)(3)(IV), the court was not
required to forward the motion to the public defender.
¶ 15 Our review of the record suggests that the People may have
overlooked an order that resolves this dispute. The same day the
district court issued its October order, it issued the second order
granting Nakai’s request for counsel. The bottom of Nakai’s form
application for counsel contains a “Staff Use Only” box where the
court approved the appointment of counsel request. Moreover, the
electronic register of actions in the underlying case, of which we
take judicial notice, see People v. Parks, 2021 COA 61, ¶ 1 n.1,
confirms that the court issued an order appointing counsel — titled
6 “Order: Application for a State Paid Professional” — alongside the
October order. Therefore, the record belies the People’s assertion
that “no order was subsequently issued regarding the appointment
of counsel.”
¶ 16 Because the district court ruled in its October order that
Nakai’s pro se motion complied with Crim. P. 35(c)(3)(IV) and
warranted the appointment of counsel, its decision not to
summarily deny Nakai’s motion triggered its obligation to comply
with Crim. P. 35(c)(3)(V)’s procedure — namely, sending a complete
copy of the motion to the public defender. See Higgins, ¶ 15. While
the October order indicated that “[t]he clerk shall send a complete
copy of the [Crim. P. 35(c)] motion and the motion for recusal to the
special prosecutor and Public Defender’s Office,” it does not appear
this occurred. Certainly, the public defender never responded to
the appointment nor did they enter an appearance. By not sending
Nakai’s postconviction motion to the public defender, the court
effectively deprived Nakai of the opportunity to have the public
defender respond or add other claims with arguable merit. See id.
at ¶ 17.
7 ¶ 17 The district court’s procedural error is not harmless precisely
because the public defender can add claims it finds to have
arguable merit. We presume prejudice because the procedures
mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit.
People v. Davis, 2012 COA 14, ¶ 14. Thus, we must remand to the
district court to continue with the case at the point where it stopped
following the proper procedure. Nozolino, ¶ 36. Therefore, we
reverse the order denying Nakai’s pro se Crim. P. 35(c) motion and
remand the case for the court to forward a complete copy of the
motion to the public defender.
¶ 18 Last, we note that the public defender’s irreconcilable conflict
that precluded it from representing Nakai in this appeal may also
affect its ability to represent Nakai on his Crim. P. 35(c) motion.
The district court should resolve this question and proceed
accordingly. Once it is determined who will represent Nakai,
Nakai’s counsel should be provided with the opportunity to consider
and, if warranted, supplement the claims in his motion as required
by Crim. P. 35(c)(3)(V).
8 ¶ 19 Given our disposition of this appeal, we do not address Nakai’s
alternative contentions, nor do we express any opinion on the
merits of any of his pro se claims.
III. Disposition
¶ 20 The order is reversed, and the case is remanded for further
proceedings consistent with the views expressed in this opinion.
CHIEF JUDGE ROMÁN and JUDGE TAUBMAN concur.