25CA0519 Peo v Parks 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0519 Arapahoe County District Court No. 09CR1337 Honorable Jacob Edson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Scott Parks,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE TOW Lipinsky and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Timothy Scott Parks, Pro Se
*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, Timothy Scott Parks, appeals the postconviction
court’s order denying his postconviction motion without a hearing.
We affirm.
I. Background
¶2 In 2009, the prosecution charged Parks with possession with
intent to distribute a controlled substance, four traffic violations,
and seven habitual criminal counts. Parks pleaded not guilty and
proceeded to a jury trial.
¶3 After hearing the evidence, the jury convicted Parks of the
drug and traffic charges. The trial court then held a bench trial on
the habitual criminal counts and found that the prosecution had
proven six of the seven counts. The court sentenced Parks to
thirty-two years in the custody of the Department of Corrections.
¶4 Parks appealed and asserted, as relevant to this appeal, that
Colorado’s habitual criminal procedures were unconstitutional
because they violated his right to a jury trial. See People v. Parks,
2015 COA 158, ¶ 28. A division of this court rejected his
contention, relying on decisions from other divisions of this court
concluding that a defendant was not entitled to a jury trial on
1 habitual criminal counts. Id. at ¶ 29. The Colorado Supreme Court
denied certiorari review, and a mandate issued in April 2016.
¶5 More than eight years later, the United States Supreme Court
announced Erlinger v. United States, 602 U.S. 821 (2024), which
addressed a federal statute that mandated enhanced sentences for
defendants with three prior convictions for violent felonies or
serious drug offenses “committed on occasions different from one
another,” 18 U.S.C. § 924(e)(1). The Supreme Court held that
defendants are entitled to have a jury resolve whether the prior
convictions were committed on occasions different from one
another. Erlinger, 602 U.S. at 835; see People v. Gregg, 2025 CO
57, ¶ 24 (applying Erlinger to Colorado’s former habitual criminal
statute).
¶6 A few months after Erlinger’s announcement, Parks moved for
postconviction relief under Crim. P. 35(a) and (c). He asserted that,
“[b]ased on the Erlinger opinion, and preexisting precedent, the
Fifth and Sixth Amendment[s] required [his] habitual counts to be
proven to a jury, not to a court.” Parks therefore maintained that
his sentence violated the United States Constitution, his habitual
criminal counts should be dismissed, and he should be
2 resentenced. The postconviction court denied the motion,
determining that Parks was not entitled to a jury trial on the
habitual criminal charges.
II. Discussion
¶7 Parks asserts that the postconviction court erred by denying
his motion. Because Parks’s motion was untimely and successive,
we conclude that the court properly denied it.
¶8 To begin, we consider whether Parks’s motion was cognizable
under Crim. P. 35(a) or 35(c). The motion’s substance controls
whether it is a Crim. P. 35(a) or 35(c) motion. See People v. Collier,
151 P.3d 668, 670 (Colo. App. 2006). For the reasons described
below, we conclude that the motion was properly brought under
Crim. P. 35(c), not 35(a).
¶9 As relevant here, Crim. P. 35(a) provides that a court “may
correct a sentence . . . that was imposed without jurisdiction at any
time.” A sentence is “imposed without jurisdiction” if it lies within
the range contemplated by statute but was otherwise imposed in
excess of the court’s subject matter jurisdiction. People v.
Wenzinger, 155 P.3d 415, 418 (Colo. App. 2006).
3 ¶ 10 In contrast, Crim. P. 35(c) permits a defendant to challenge a
conviction on the grounds that, as relevant here, (1) the conviction
was obtained or sentence imposed in violation of the United States
or Colorado constitutions or (2) the defendant was convicted under
a statute that is in violation of the United States or Colorado
constitutions. Crim. P. 35(c)(2)(I)-(III).
¶ 11 Parks maintains that, because the trial court violated his
constitutional right to a jury trial on the habitual criminal counts,
the court lacked subject matter jurisdiction to impose sentence on
those counts. But Parks cites no authority for his proposition. To
the contrary, we agree with the People that errors under Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542
U.S. 296 (2004), do not deprive the court of subject matter
jurisdiction. See Wenzinger, 155 P.3d at 419 (noting that the
defendant’s assertions under Apprendi and Blakely were not
reviewable under Crim. P. 35(a)). And Erlinger was merely an
extension of Apprendi. See Erlinger, 602 U.S. at 835 (observing that
the case was “as nearly on all fours with Apprendi . . . as we might
imagine”). Thus, we see no reason to treat an error under Erlinger
as implicating the court’s subject matter jurisdiction.
4 ¶ 12 We therefore conclude that, because Parks is challenging his
conviction and sentence on constitutional grounds, his claim is
reviewable only under Crim. P. 35(c).
¶ 13 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
We may affirm the court’s denial of a Crim. P. 35(c) motion on any
grounds supported by the record. See People v. Aarness, 150 P.3d
1271, 1277 (Colo. 2006).
¶ 14 We liberally construe a pro se party’s filings. People v.
Bergerud, 223 P.3d 686, 696-97 (Colo. 2010); see also Cali, ¶¶ 8, 34
(applying this concept to a pro se defendant’s Crim. P. 35(c)
motion). However, this rule does not permit us to rewrite the
motion or “act as an advocate for a pro se litigant.” Cali, ¶ 34.
Thus, although we broadly construe a pro se litigant’s motion to
effectuate the substance, rather than the form, we do not consider
issues not raised in a motion for postconviction relief. Id.
¶ 15 Parks’s postconviction motion was subject to summary
dismissal because it was both untimely and successive.
¶ 16 For non-class 1 felonies, Crim. P. 35(c) claims must be
brought within three years of the conviction becoming final. See
5 § 16-5-402(1), C.R.S. 2025; see also People v. Stanley, 169 P.3d
258, 259 (Colo. App. 2007) (a conviction becomes final when the
mandate issues from the direct appeal). Parks moved for
postconviction relief more than five years after the expiration of the
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25CA0519 Peo v Parks 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0519 Arapahoe County District Court No. 09CR1337 Honorable Jacob Edson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Scott Parks,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE TOW Lipinsky and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Timothy Scott Parks, Pro Se
*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, Timothy Scott Parks, appeals the postconviction
court’s order denying his postconviction motion without a hearing.
We affirm.
I. Background
¶2 In 2009, the prosecution charged Parks with possession with
intent to distribute a controlled substance, four traffic violations,
and seven habitual criminal counts. Parks pleaded not guilty and
proceeded to a jury trial.
¶3 After hearing the evidence, the jury convicted Parks of the
drug and traffic charges. The trial court then held a bench trial on
the habitual criminal counts and found that the prosecution had
proven six of the seven counts. The court sentenced Parks to
thirty-two years in the custody of the Department of Corrections.
¶4 Parks appealed and asserted, as relevant to this appeal, that
Colorado’s habitual criminal procedures were unconstitutional
because they violated his right to a jury trial. See People v. Parks,
2015 COA 158, ¶ 28. A division of this court rejected his
contention, relying on decisions from other divisions of this court
concluding that a defendant was not entitled to a jury trial on
1 habitual criminal counts. Id. at ¶ 29. The Colorado Supreme Court
denied certiorari review, and a mandate issued in April 2016.
¶5 More than eight years later, the United States Supreme Court
announced Erlinger v. United States, 602 U.S. 821 (2024), which
addressed a federal statute that mandated enhanced sentences for
defendants with three prior convictions for violent felonies or
serious drug offenses “committed on occasions different from one
another,” 18 U.S.C. § 924(e)(1). The Supreme Court held that
defendants are entitled to have a jury resolve whether the prior
convictions were committed on occasions different from one
another. Erlinger, 602 U.S. at 835; see People v. Gregg, 2025 CO
57, ¶ 24 (applying Erlinger to Colorado’s former habitual criminal
statute).
¶6 A few months after Erlinger’s announcement, Parks moved for
postconviction relief under Crim. P. 35(a) and (c). He asserted that,
“[b]ased on the Erlinger opinion, and preexisting precedent, the
Fifth and Sixth Amendment[s] required [his] habitual counts to be
proven to a jury, not to a court.” Parks therefore maintained that
his sentence violated the United States Constitution, his habitual
criminal counts should be dismissed, and he should be
2 resentenced. The postconviction court denied the motion,
determining that Parks was not entitled to a jury trial on the
habitual criminal charges.
II. Discussion
¶7 Parks asserts that the postconviction court erred by denying
his motion. Because Parks’s motion was untimely and successive,
we conclude that the court properly denied it.
¶8 To begin, we consider whether Parks’s motion was cognizable
under Crim. P. 35(a) or 35(c). The motion’s substance controls
whether it is a Crim. P. 35(a) or 35(c) motion. See People v. Collier,
151 P.3d 668, 670 (Colo. App. 2006). For the reasons described
below, we conclude that the motion was properly brought under
Crim. P. 35(c), not 35(a).
¶9 As relevant here, Crim. P. 35(a) provides that a court “may
correct a sentence . . . that was imposed without jurisdiction at any
time.” A sentence is “imposed without jurisdiction” if it lies within
the range contemplated by statute but was otherwise imposed in
excess of the court’s subject matter jurisdiction. People v.
Wenzinger, 155 P.3d 415, 418 (Colo. App. 2006).
3 ¶ 10 In contrast, Crim. P. 35(c) permits a defendant to challenge a
conviction on the grounds that, as relevant here, (1) the conviction
was obtained or sentence imposed in violation of the United States
or Colorado constitutions or (2) the defendant was convicted under
a statute that is in violation of the United States or Colorado
constitutions. Crim. P. 35(c)(2)(I)-(III).
¶ 11 Parks maintains that, because the trial court violated his
constitutional right to a jury trial on the habitual criminal counts,
the court lacked subject matter jurisdiction to impose sentence on
those counts. But Parks cites no authority for his proposition. To
the contrary, we agree with the People that errors under Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542
U.S. 296 (2004), do not deprive the court of subject matter
jurisdiction. See Wenzinger, 155 P.3d at 419 (noting that the
defendant’s assertions under Apprendi and Blakely were not
reviewable under Crim. P. 35(a)). And Erlinger was merely an
extension of Apprendi. See Erlinger, 602 U.S. at 835 (observing that
the case was “as nearly on all fours with Apprendi . . . as we might
imagine”). Thus, we see no reason to treat an error under Erlinger
as implicating the court’s subject matter jurisdiction.
4 ¶ 12 We therefore conclude that, because Parks is challenging his
conviction and sentence on constitutional grounds, his claim is
reviewable only under Crim. P. 35(c).
¶ 13 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
We may affirm the court’s denial of a Crim. P. 35(c) motion on any
grounds supported by the record. See People v. Aarness, 150 P.3d
1271, 1277 (Colo. 2006).
¶ 14 We liberally construe a pro se party’s filings. People v.
Bergerud, 223 P.3d 686, 696-97 (Colo. 2010); see also Cali, ¶¶ 8, 34
(applying this concept to a pro se defendant’s Crim. P. 35(c)
motion). However, this rule does not permit us to rewrite the
motion or “act as an advocate for a pro se litigant.” Cali, ¶ 34.
Thus, although we broadly construe a pro se litigant’s motion to
effectuate the substance, rather than the form, we do not consider
issues not raised in a motion for postconviction relief. Id.
¶ 15 Parks’s postconviction motion was subject to summary
dismissal because it was both untimely and successive.
¶ 16 For non-class 1 felonies, Crim. P. 35(c) claims must be
brought within three years of the conviction becoming final. See
5 § 16-5-402(1), C.R.S. 2025; see also People v. Stanley, 169 P.3d
258, 259 (Colo. App. 2007) (a conviction becomes final when the
mandate issues from the direct appeal). Parks moved for
postconviction relief more than five years after the expiration of the
three-year deadline in section 16-5-402(1). Thus, his motion was
untimely.
¶ 17 Moreover, under Crim. P. 35(c)(3)(VI), the postconviction court
must deny any claim raised and resolved in a prior appeal or
postconviction proceeding on behalf of the same defendant. And it
is undisputed that Parks raised the same claim — that he was
entitled to a jury trial on the habitual criminal counts — in his
direct appeal. See Parks, ¶¶ 28-29. Therefore, the motion was
successive.
¶ 18 While there are exceptions to both of these procedural bars,
Parks did not assert either of them in his postconviction motion.
For example, he did not allege that there was justifiable excuse or
excusable neglect for his untimely filing. See § 16-5-402(2)(d). Nor
did Parks allege in his motion that Erlinger applies retroactively.
See Crim. P. 35(c)(2)(VI)(b) (providing an exception to the
successiveness bar for “[a]ny claim based on a new rule of
6 constitutional law that was previously unavailable, if that rule has
been applied retroactively”); see also People v. Rainer, 2013 COA 51,
¶ 29 (noting that a defendant may have justifiable excuse based on
a new rule of substantive constitutional law announced after the
deadline in section 16-5-402), rev’d on other grounds, 2017 CO 50.
Thus, even broadly construing the motion, Parks did not allege an
exception to the procedural bars. And though he attempts to
advance such arguments in his appellate briefing, we do not
address arguments made for the first time on appeal. See Cali,
¶ 34.
¶ 19 In sum, because Parks’s motion was untimely under
section 16-5-402(1), and successive under Crim. P. 35(c)(2)(VI), the
postconviction court did not err by denying the motion without a
hearing or appointment of counsel. See People v. Moriarity, 8 P.3d
566, 569 (Colo. App. 2000) (noting that a defendant is not entitled
to a hearing or appointment of counsel “if the motion, the files, and
the record establish that the defendant is not entitled to relief as a
matter of law”). Accordingly, we affirm the postconviction court’s
order, albeit on different grounds, see Aarness, 150 P.3d at 1277.
7 III. Disposition
¶ 20 The order is affirmed.
JUDGE LIPINSKY and JUDGE TAUBMAN concur.