24CA1060 Peo v Owens 07-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1060 Mesa County District Court No. 16CR327 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nathanael Eugene Owens,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nathanael Eugene Owens, Pro Se ¶1 Defendant, Nathanael Eugene Owens, appeals the district
court’s order denying his postconviction motion. We affirm.
I. Background
¶2 In 2017, Owens pleaded guilty to two counts of aggravated
robbery, § 18-4-302(1)(d), C.R.S. 2024, and one count of vehicular
eluding, § 18-9-116.5, C.R.S. 2024, in exchange for the dismissal of
ten remaining counts. Owens stipulated to a sentence between
twenty and twenty-six years in the custody of the Department of
Corrections (DOC) plus parole. Specifically, he stipulated to
ten-year consecutive sentences for the aggravated robbery counts,
to be run either concurrently or consecutively — at the court’s
discretion — with the vehicular eluding sentence. Owens also
agreed to waive his right to seek reconsideration of his sentence
under Crim. P. 35(b).
¶3 On May 22, 2017, the district court sentenced Owens to ten
years for each aggravated robbery count and four years for the
vehicular eluding count, all to run consecutively.
¶4 One month later, the DOC filed a violent crime report in the
district court.
1 ¶5 On August 25, 2017, Owens filed a motion to reconsider his
sentence under Crim. P. 35(b). The district court denied the
motion, finding that Owens had waived his right to sentence
reconsideration under Crim. P. 35(b) in the plea agreement.
Alternatively, the court found that reconsideration was
unwarranted based on the facts of the case and Owens’s criminal
history.
¶6 On April 23, 2024, Owens filed a motion captioned “MOTION
FOR TO CORRECT ILLEGAL SENTENCE UNDER 35A AND 35B
RECONSIDERATION.” He argued that the DOC violated his plea
agreement and miscalculated his parole eligibility date (PED) by
treating his aggravated robbery convictions as crimes of violence,
which resulted in his PED being calculated based on him serving
seventy-five percent of his sentence, as opposed to fifty percent.
But, in his view, he did not plead guilty to a crime of violence. He
also claimed that the district court held an ex parte hearing to
enhance his sentence after the DOC filed the violent crime report,
which he argued violated his due process rights. Finally, Owens
asserted that “the mandatory parole component of his prison
sentence, five (5) years, should be subtracted from his 24 years.”
2 ¶7 The district court denied Owens’ motion, finding that (1) the
sentence imposed was legal under Crim. P. 35(a); (2) Owens had
waived his right to seek reconsideration under Crim. P. 35(b), and
any Crim. P. 35(b) motion nevertheless would have been untimely;
and (3) the motion was successive.
II. Discussion
¶8 On appeal, Owens contends that the district court erred by
denying his motion. He reasserts only his claim that his due
process rights were violated when the district court held an ex parte
hearing after the DOC filed its violent crime report.1 He also claims
that this court, the Mesa County District Court, and the supreme
court violated his due process rights “by denying him the record in
this case.” We disagree with Owens’s contentions.
A. Ex Parte Hearing
¶9 The substance of a postconviction motion, and not its caption,
controls how it is designated. See People v. Collier, 151 P.3d 668,
670 (Colo. App. 2006). Although Owens captioned his motion
1 Owens has abandoned the remaining claims in his motion by not
pursuing them on appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.
3 under Crim. P. 35(a) and 35(b), he does not claim that his sentence
was illegal or was imposed in an illegal manner. See Crim. P. 35(a).
Nor does he seek reconsideration of his sentence. See Crim. P.
35(b). Rather, he claims that his due process rights were violated
when an alleged ex parte hearing took place. This is a claim
cognizable under Crim. P. 35(c). See id. (a postconviction motion is
properly brought under Crim. P. 35(c) when the defendant
challenges the constitutionality of his conviction or sentence); Crim.
P. 35(c)(2)(I) (permitting postconviction review on the basis that “the
conviction was obtained or sentence imposed in violation of the
Constitution or laws of the United States or the constitution or laws
of this state”).
¶ 10 We review de novo the denial of a Crim. P. 35(c) claim without
a hearing. People v. Cali, 2020 CO 20, ¶ 14.
¶ 11 Claims arising under Crim. P. 35(c) are subject to the time
limitation set forth in section 16-5-402(1), C.R.S. 2024. Except in
the case of class 1 felony convictions, a Crim. P. 35(c) claim is time
barred if it is filed more than three years after the conviction is
final, unless the defendant can establish justifiable excuse or
excusable neglect, or another statutory exception, to permit an
4 untimely challenge. See § 16-5-402(1), (2)(d). Where, as here, a
defendant does not pursue a direct appeal, his conviction becomes
final on the date of sentencing. People v. Shepard, 151 P.3d 580,
582 (Colo. App. 2006). Thus, Owens had until May 22, 2020 —
three years after sentencing — to file his Crim. P. 35(c) claims.
¶ 12 Because Owens filed his motion in April 2024 and did not
allege facts to support a claim of justifiable excuse or excusable
neglect or any other statutory exception, the motion was time
barred. Accordingly, we perceive no error in the district court’s
denial of this claim, though we rest our conclusion on different
grounds. See People v. Manyik, 2016 COA 42, ¶ 69 (“We may affirm
the court’s ruling on any ground supported by the record, even if
that ground was not articulated or considered by the court.”);
§ 16-5-402(1.5) (an appellate court may affirm the denial of a Crim.
P. 35(c) claim on the ground that it was time barred, even if the
issue of timeliness was not considered by the postconviction court).2
2 Notably, even if we were to reach the merits of Owens’s claim, it
would fail because the record does not show that any hearing, much less an ex parte hearing, took place after the violent crime report was filed. Nor is there any requirement to conduct such a hearing. See People v. Olivas, 911 P.2d 675, 678 (Colo. App. 1995).
5 B. Denial of Record
¶ 13 After Owens filed his notice of appeal, he filed a designation of
record, stating that “[t]he record the defendant is requesting is the
recordings of the Rule 11 plea agreement hearing, the sentencing
hearing[,] and the violent crime report hearing. Defendant does not
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24CA1060 Peo v Owens 07-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1060 Mesa County District Court No. 16CR327 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nathanael Eugene Owens,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nathanael Eugene Owens, Pro Se ¶1 Defendant, Nathanael Eugene Owens, appeals the district
court’s order denying his postconviction motion. We affirm.
I. Background
¶2 In 2017, Owens pleaded guilty to two counts of aggravated
robbery, § 18-4-302(1)(d), C.R.S. 2024, and one count of vehicular
eluding, § 18-9-116.5, C.R.S. 2024, in exchange for the dismissal of
ten remaining counts. Owens stipulated to a sentence between
twenty and twenty-six years in the custody of the Department of
Corrections (DOC) plus parole. Specifically, he stipulated to
ten-year consecutive sentences for the aggravated robbery counts,
to be run either concurrently or consecutively — at the court’s
discretion — with the vehicular eluding sentence. Owens also
agreed to waive his right to seek reconsideration of his sentence
under Crim. P. 35(b).
¶3 On May 22, 2017, the district court sentenced Owens to ten
years for each aggravated robbery count and four years for the
vehicular eluding count, all to run consecutively.
¶4 One month later, the DOC filed a violent crime report in the
district court.
1 ¶5 On August 25, 2017, Owens filed a motion to reconsider his
sentence under Crim. P. 35(b). The district court denied the
motion, finding that Owens had waived his right to sentence
reconsideration under Crim. P. 35(b) in the plea agreement.
Alternatively, the court found that reconsideration was
unwarranted based on the facts of the case and Owens’s criminal
history.
¶6 On April 23, 2024, Owens filed a motion captioned “MOTION
FOR TO CORRECT ILLEGAL SENTENCE UNDER 35A AND 35B
RECONSIDERATION.” He argued that the DOC violated his plea
agreement and miscalculated his parole eligibility date (PED) by
treating his aggravated robbery convictions as crimes of violence,
which resulted in his PED being calculated based on him serving
seventy-five percent of his sentence, as opposed to fifty percent.
But, in his view, he did not plead guilty to a crime of violence. He
also claimed that the district court held an ex parte hearing to
enhance his sentence after the DOC filed the violent crime report,
which he argued violated his due process rights. Finally, Owens
asserted that “the mandatory parole component of his prison
sentence, five (5) years, should be subtracted from his 24 years.”
2 ¶7 The district court denied Owens’ motion, finding that (1) the
sentence imposed was legal under Crim. P. 35(a); (2) Owens had
waived his right to seek reconsideration under Crim. P. 35(b), and
any Crim. P. 35(b) motion nevertheless would have been untimely;
and (3) the motion was successive.
II. Discussion
¶8 On appeal, Owens contends that the district court erred by
denying his motion. He reasserts only his claim that his due
process rights were violated when the district court held an ex parte
hearing after the DOC filed its violent crime report.1 He also claims
that this court, the Mesa County District Court, and the supreme
court violated his due process rights “by denying him the record in
this case.” We disagree with Owens’s contentions.
A. Ex Parte Hearing
¶9 The substance of a postconviction motion, and not its caption,
controls how it is designated. See People v. Collier, 151 P.3d 668,
670 (Colo. App. 2006). Although Owens captioned his motion
1 Owens has abandoned the remaining claims in his motion by not
pursuing them on appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.
3 under Crim. P. 35(a) and 35(b), he does not claim that his sentence
was illegal or was imposed in an illegal manner. See Crim. P. 35(a).
Nor does he seek reconsideration of his sentence. See Crim. P.
35(b). Rather, he claims that his due process rights were violated
when an alleged ex parte hearing took place. This is a claim
cognizable under Crim. P. 35(c). See id. (a postconviction motion is
properly brought under Crim. P. 35(c) when the defendant
challenges the constitutionality of his conviction or sentence); Crim.
P. 35(c)(2)(I) (permitting postconviction review on the basis that “the
conviction was obtained or sentence imposed in violation of the
Constitution or laws of the United States or the constitution or laws
of this state”).
¶ 10 We review de novo the denial of a Crim. P. 35(c) claim without
a hearing. People v. Cali, 2020 CO 20, ¶ 14.
¶ 11 Claims arising under Crim. P. 35(c) are subject to the time
limitation set forth in section 16-5-402(1), C.R.S. 2024. Except in
the case of class 1 felony convictions, a Crim. P. 35(c) claim is time
barred if it is filed more than three years after the conviction is
final, unless the defendant can establish justifiable excuse or
excusable neglect, or another statutory exception, to permit an
4 untimely challenge. See § 16-5-402(1), (2)(d). Where, as here, a
defendant does not pursue a direct appeal, his conviction becomes
final on the date of sentencing. People v. Shepard, 151 P.3d 580,
582 (Colo. App. 2006). Thus, Owens had until May 22, 2020 —
three years after sentencing — to file his Crim. P. 35(c) claims.
¶ 12 Because Owens filed his motion in April 2024 and did not
allege facts to support a claim of justifiable excuse or excusable
neglect or any other statutory exception, the motion was time
barred. Accordingly, we perceive no error in the district court’s
denial of this claim, though we rest our conclusion on different
grounds. See People v. Manyik, 2016 COA 42, ¶ 69 (“We may affirm
the court’s ruling on any ground supported by the record, even if
that ground was not articulated or considered by the court.”);
§ 16-5-402(1.5) (an appellate court may affirm the denial of a Crim.
P. 35(c) claim on the ground that it was time barred, even if the
issue of timeliness was not considered by the postconviction court).2
2 Notably, even if we were to reach the merits of Owens’s claim, it
would fail because the record does not show that any hearing, much less an ex parte hearing, took place after the violent crime report was filed. Nor is there any requirement to conduct such a hearing. See People v. Olivas, 911 P.2d 675, 678 (Colo. App. 1995).
5 B. Denial of Record
¶ 13 After Owens filed his notice of appeal, he filed a designation of
record, stating that “[t]he record the defendant is requesting is the
recordings of the Rule 11 plea agreement hearing, the sentencing
hearing[,] and the violent crime report hearing. Defendant does not
want transcripts but request[s] the actual recording of all three
hearings.” Thereafter, the appellate record was certified and
transmitted to this court. Owens then filed with this court a motion
to compel the Mesa County District Court to provide the actual
recordings of the three hearings. We denied the motion, finding
that any transcripts or recordings would not be relevant to this
appeal. People v. Owens, (Colo. App. No. 24CA1060, July 29, 2024)
(unpublished order). We reasoned that the district court issued an
order on July 5, 2024, denying Owens’s motion requesting that the
recordings, not transcripts, be certified as part of the appellate
record, and finding that “it did not rely on any transcripts or
recordings in making its rulings presented for this Court’s review.”
Id. Owens filed a similar motion to compel in the supreme court,
which the court denied. In Re People v. Owens, (Colo. No. 24SA233,
Sept. 26, 2024) (unpublished order).
6 ¶ 14 Finally, when complaining about an incomplete record, a
defendant must establish specific prejudice that resulted from the
incomplete record and cannot rely on bare assertions that the
incomplete record impaired their ability to appeal. People v.
Rodriguez, 914 P.2d 230, 301 (Colo. 1996). Owens does not
articulate how (or, for that matter, that) he was prejudiced by any
purported shortcomings in the record aside from saying that he did
not receive it. Indeed, we cannot identify how any such prejudice
can arise from the lack of recordings, when those recordings had no
bearing on the denial of Owens’s claim. Thus, we reject his claim
on this basis as well.
III. Disposition
¶ 15 The order is affirmed.
JUDGE YUN and JUDGE SULLIVAN concur.