Peo v. Rollie

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 24CA0871
• Status: Unpublished

Opinion

24CA0871 Peo v Rollie 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0871 City and County of Denver District Court No. 06CR10482 Honorable Alex C. Myers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Orlando Rollie,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Michael Orlando Rollie, Pro Se ¶1 Michael Orlando Rollie appeals the postconviction court’s

order denying his most recent Crim. P. 35(c) motion. We affirm.

I. Background

¶2 A jury found Rollie guilty of one count of attempted first degree

murder, three counts of attempted manslaughter, three counts of

first degree assault, and one count of second degree assault.

¶3 The judgment was affirmed on direct appeal. See People v.

Rollie, (Colo. App. No. 08CA0391, July 26, 2012) (not published

pursuant to C.A.R. 35(f)). The mandate was issued in July 2013.

¶4 Over the next ten years, Rollie filed numerous postconviction

motions, including a timely Crim. P. 35(c) motion in 2015 and other

later motions construed as Crim. P. 35(c) motions. The district

court denied all those motions, several as untimely or successive.

¶5 Divisions of this court affirmed each of those orders that Rollie

appealed. See People v. Rollie, (Colo. App. No. 13CA2297, May 7,

2015) (not published pursuant to C.A.R. 35(f)); People v. Rollie,

(Colo. App. No. 16CA1538, Sept. 20, 2018) (not published pursuant

to C.A.R. 35(e)); People v. Rollie, (Colo. App. No. 20CA0435, Apr. 29,

2021) (not published pursuant to C.A.R. 35(e)) (Rollie III); People v.

Rollie, (Colo. App. No. 23CA0154, Oct. 12, 2023) (not published

1 pursuant to C.A.R. 35(e)) (Rollie IV). The division in Rollie III

concluded that Rollie’s claims were untimely and successive. See

Rollie III, slip op. at ¶¶ 13-23. The division in Rollie IV similarly

concluded that Rollie’s claims — including a claim that he was

actually innocent — were successive. Rollie IV, slip op. at ¶¶ 15-18.

¶6 In 2024 — eleven years after the mandate in his direct

appeal — Rollie filed the Rule 35(c) motion at issue, again asserting

that he was actually innocent because he had acted in self-defense.

He asked the court to appoint postconviction counsel and hold an

evidentiary hearing so he could present evidence in support of his

claim. He argued that the postconviction court should resolve his

claim on the merits because it did not have jurisdiction when Rollie

had raised the same claim in a 2020 motion.

¶7 The postconviction court denied Rollie’s Crim. P. 35(c) motion,

without appointing counsel or holding an evidentiary hearing, on

the grounds that the motion was untimely and successive.

II. Analysis

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

without a hearing, including whether the motion is successive or

untimely. See People v. Cali, 2020 CO 20, ¶ 14; People v. Bonan,

2 2014 COA 156, ¶¶ 16, 26. A Crim. P. 35(c) motion may be denied

without a hearing where the motion, files, and record clearly

establish that the defendant’s allegations are without merit and do

not warrant relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶9 We agree with the postconviction court that Rollie’s motion

was successive. Rollie’s claim that he is actually innocent and his

allegation that the videos presented at trial were manipulated or

otherwise insufficient have been repeatedly raised and resolved in

prior appeals and postconviction proceedings.1 See Crim. P.

35(c)(3)(VI); Leske v. Golder, 124 P.3d 863, 865 (Colo. App. 2005)

(“Crim. P. 35(c) motions are not intended to provide perpetual

review of criminal convictions.”). To the extent Rollie’s current

claim differs from his prior ones, it could have been raised on direct

appeal or in his timely Rule 35(c) motion. See Crim. P. 35(c)(3)(VII).

¶ 10 Rollie has failed to show any exception to the successiveness

bar under Crim. P. 35(c)(3)(VI) or (VII). He does not, for example,

allege that his claim is “based on evidence that could not have been

1 Rollie challenges the postconviction court’s jurisdiction to issue

one of those rulings. But that was just one of many times Rollie has raised these issues. And in that particular instance, this court expressly authorized Rollie to raise the issue in his pending appeal.

3 discovered previously through the exercise of due diligence.” Crim.

P. 35(c)(3)(VI)(a), (VII)(b). To the contrary, his claim appears to rest

in large part on his interpretation of evidence presented at trial.

¶ 11 We also agree with the postconviction court that Rollie’s

motion is time barred. Rollie’s deadline for filing a Crim. P. 35(c)

motion expired in July 2016 — three years after the mandate was

issued in his direct appeal. See § 16-5-402(1), C.R.S. 2024. Rollie

has not sufficiently alleged any exception to the statutory time

limitation. See § 16-5-402(2). Although he challenges the

jurisdiction of the postconviction court to issue one of its

postconviction rulings, there is no question as to the trial court’s

subject matter jurisdiction over the offense. See § 16-5-402(2)(a).

¶ 12 Thus, because Rollie’s Crim. P. 35(c) motion was successive

and time barred, the court did not err by denying it without

appointing counsel or holding an evidentiary hearing. See Crim. P.

35(c)(3)(IV); People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003).

III. Disposition

¶ 13 The order is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.