Peo v. Potter

• Court: Colorado Court of Appeals
• Decided: July 10, 2025
• Docket: 23CA0291
• Status: Unpublished

Opinion

23CA0291 Peo v Potter 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0291 Las Animas County District Court Nos. 17CR20 & 17CR219 Honorable Scott B. Epstein, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clark Newman Potter,

Defendant-Appellant.

ORDERS AFFIRMED

Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Clark Newman Potter, appeals the district court’s

orders denying his identical motions for postconviction relief filed in

two separate cases, Las Animas County case numbers 17CR20 and

17CR219. We affirm, although we do so on different grounds than

those on which the district court relied. See People v. Vondra, 240

P.3d 493, 494 (Colo. App. 2010).

I. The Guilty Pleas and Sentencing

¶2 In a plea disposition resolving three criminal cases, Potter

pleaded guilty to one count of conspiracy to commit second degree

burglary and one count of first degree trespass in case number

17CR20 and one count of conspiracy to commit second degree

burglary in case number 17CR219. In exchange, the prosecution

agreed to dismiss the remaining charges in each of these cases and

a third case in its entirety. The prosecution further agreed not to

bring charges related to an alleged 2017 evidence room break-in.

¶3 The parties stipulated to consecutive, aggravated sentences

totaling thirty years. And Potter agreed to admit facts related to

several prior convictions for the purposes of any future criminal

prosecution.

1 ¶4 On July 26, 2018, the district court accepted the pleas and

proceeded directly to sentencing, imposing the sentences

contemplated by the plea agreement. Potter did not appeal.

II. Postconviction Proceedings

¶5 A few months after sentencing, Potter filed Crim. P. 35(b)

motions for sentence reconsideration in both cases, referencing

mitigation evidence, noting his progress while incarcerated, and

discussing his support systems. The district court denied the

motions.

¶6 Then, in 2019, Potter filed a pro se “Motion to Grant

Postconviction Relief” in both cases. He asserted that he was

“entitled to a sentence reduction” under section 18-1-410, C.R.S.

2024, “due to being coerced into a plea agreement under threat of

being convicted under habitual criminal status.” The district court

denied these motions as well, finding, among other things, that “the

suggestion that [there] was coercion is simply not true.” Potter did

not appeal.

¶7 On July 30, 2021, the district court received Potter’s form

“Petition for Postconviction Relief Pursuant to Crim. P. 35(c),” which

was filed in both cases (the form petition). Potter dated the form

2 petitions July 21, 2021, and checked four boxes indicating the

grounds for the petitions as follows:

• “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”;

• material facts existed, not previously presented and heard,

which could not have been known to or learned by him or his

attorney by the exercise of reasonable diligence prior to the

submission of the issues to the jury, and which required

vacatur of the conviction or sentence in the interest of justice;

• any “ground otherwise properly the basis for collateral attack

upon a criminal judgment”; and

• “the sentence imposed has been fully served or that there has

been an unlawful revocation of parole, probation, or

conditional release.”

The following statement was typed on the form: “Defendant hereby

incorporates by reference his brief [in] support of petition for

postconviction relief pursuant to Crim. P. 35(c).” No brief was

received with the form petition.

3 ¶8 On August 6, 2021, the district court received Potter’s lengthy

“Brief in Support of Petition for Postconviction Relief.” This

pleading, which Potter represented had been “respectfully

submitted” on July 29, 2021, claimed that (1) his conviction was

the product of ineffective assistance of counsel, including deficient

plea negotiations and advice; (2) his sentence was disproportionate

to his crime; and (3) his plea was not voluntary, knowing, and

intelligent.

¶9 The district court appointed postconviction counsel, who filed

a supplemental Crim. P. 35(c) motion titled, “Motion for

Proportionality Review.” Counsel did not substantively address

each of Potter’s pro se claims but did request a hearing on them,

asserting that they were sufficient to warrant one. Counsel focused

the supplement on a request for a proportionality review of Potter’s

sentence.

¶ 10 After receiving the prosecution’s response, the district court

solicited proposed orders from the parties. The court explained that

it was particularly “interested to understand why [postconviction

counsel] did not elaborate on [Potter’s] pro se claims, and whether,

4 in her professional opinion, further elaboration was not

appropriate.”

¶ 11 Postconviction counsel submitted a proposed order stating

that plea counsel’s failure to investigate an alternate suspect

regarding the conspiracy to commit burglary charge in 17CR219

“merits teasing out at an evidentiary hearing.” The proposed order

also stated that trial counsel’s failures to investigate and advise

Potter “of his possible defenses at trial — including that of alibi and

alternate suspects — as well as the strengths or weaknesses of the

prosecution’s evidence, are serious enough that an evidentiary

hearing is warranted.” But postconviction counsel’s proposed order

conceded that “Potter’s other claims of ineffective assistance of

counsel” and his request for a proportionality review “are not

supported by sufficient facts to warrant a hearing.”

¶ 12 The district court denied relief in a written order. The court

first concluded that the motion was timely pursuant to section

16-5-402, C.R.S. 2024. The court then noted that postconviction

counsel had withdrawn most of the claims in the pro se petition “as

not warranting further review.” And the court rejected the

5 remaining claims on the basis that the motion, files, and record of

the case clearly established that the allegations were without merit.

III. Standard of Review

¶ 13 We review de novo a district court’s denial of a Crim. P. 35(c)

motion without a hearing. People v. Phipps, 2016 COA 190M, ¶ 20.

We also review de novo whether a Crim. P. 35(c) claim is time

barred or successive. People v. Bonan, 2014 COA 156, ¶ 16.

IV. The Statutory Time Limitation

¶ 14 The People assert that Potter’s Crim. P. 35(c) claims were

untimely under section 16-5-402(1). We agree.

¶ 15 With limited exceptions not alleged here, a postconviction

motion challenging a non-class 1 felony conviction under Rule 35(c)

must be filed within three years of the date the defendant’s

conviction becomes final. § 16-5-402(1). When there is no direct

appeal, a conviction becomes final when the trial court enters

judgment and sentence — here, July 26, 2018. People v. Collier,

151 P.3d 668, 671 (Colo. App. 2006) (“For purposes of [section]

16-5-402 and postconviction review, if there is no direct appeal, a

conviction occurs when the trial court enters judgment and

sentence is imposed.”).

6 ¶ 16 Potter was convicted of class 4 and 5 felonies and did not file a

direct appeal. Thus, the parties agree that Potter had until July 26,

2021, to file his Crim. P. 35(c) claims. The district court received

Potter’s form petition on July 30, 2021.

¶ 17 Even so, Potter argues that his form petition was dated five

days before the expiration of the three-year deadline, so he “timely

initiated his pro se petition for postconviction relief.” Potter is

correct that, because he is an inmate, his form petition was

arguably timely filed even though it wasn’t received by the district

court until after the expiration of the deadline. See Crim. P. 45(f)

(“A document filed by an inmate confined in an institution is timely

filed with the court if deposited in the institution’s internal mailing

system on or before the last day for filing. If an institution has a

system designed for legal mail, the inmate must use that system to

receive the benefit of this rule.”).1

¶ 18 But the form petition asserted only generic and conclusory

claims. Potter’s brief in support of his petition — which contained

1 We say “arguably timely filed” because the record does not reflect

when Potter deposited his form petition in the internal mailing system of the facility where he is incarcerated.

7 his specific claims — was dated July 30, 2021. This was four days

after the expiration of the three-year deadline. And Potter did not

allege any exception to the time bar in his petition or brief. See

§ 16-5-402(2)(a)-(d) (setting forth an exclusive list of exceptions to

the time limitation in subsection (1)); Crim. P. 35(c)(3)(I) (“Any

motion filed outside of the time limits set forth in [section

16-5-402(1)] shall allege facts which, if true, would establish one of

the exceptions listed in [subsection] (2).”).

¶ 19 True, Potter purported to “incorporate[] by reference” his

untimely claims in his form petition. But divisions of this court

have held that “the timely commencement of a collateral attack fails

to toll the limitations period with respect to additional

postconviction claims not contained in the timely filed motion.”

People v. Ambos, 51 P.3d 1070, 1071-72 (Colo. App. 2002); see also

People v. Stovall, 2012 COA 7M, ¶ 33 n.3 (noting that “there is no

authority, whether statute, rule, or appellate opinion, that

recognizes a ‘tolling’ of the time limit contained in section

16-5-402(1)”); People v. Merchant, 983 P.2d 108, 112 (Colo. App.

1999) (rejecting the view that a collateral attack “commenced within

the applicable time period” tolls the limitations period in section

8 16-5-402(1)). And although the defendants in Ambos and Stovall

filed their postconviction motions years or months after the

expiration of the limitations period in section 16-5-402 — as

opposed to the days-long delay here — the limitations period would

be “rendered meaningless” if a defendant could circumvent it by

filing a timely Rule 35(c) form petition containing only conclusory

claims and then adding specific claims after the limitations period

has expired. Ambos, 51 P.3d at 1072; see M.T. v. People, 275 P.3d

661, 664 (Colo. App. 2010) (“Courts should strive to avoid statutory

constructions that would render a statute meaningless.”), aff’d,

2012 CO 11.

¶ 20 Thus, we conclude that the Crim. P. 35(c) claims contained in

both Potter’s “Brief in Support of Petition for Postconviction Relief”

and postconviction counsel’s supplement were time barred. See

§ 16-5-402(1.5) (“If an appellate court can determine on the face of

the motion, files, and record in a case that a collateral attack is

outside the time limits specified in subsection (1) of this section, the

appellate court may deny relief on that basis, regardless of whether

the issue of timeliness was raised in the trial court.”).

9 V. Successiveness

¶ 21 Even if Potter’s Crim. P. 35(c) claims were not time barred, we

conclude that they are successive.

¶ 22 Rule 35(c) requires that the district court deny any

postconviction claim that was or could have been presented in a

prior postconviction proceeding. Crim. P. 35(c)(3)(IV), (VII).

¶ 23 Potter filed postconviction motions in both cases in 2019,

raising claims related to his plea agreement and seeking a sentence

reduction. The claims Potter asserted in his 2021 motion —

relating to ineffective assistance of trial counsel, the voluntariness

of his plea, and the proportionality of his sentence — either were or

could have been raised in his 2019 motions. Thus, the district

court should have denied them on that basis as well. See id.

VI. Disposition

¶ 24 The orders are affirmed.

JUDGE DUNN and JUDGE SCHOCK concur.