Peo v. Selders

• Court: Colorado Court of Appeals
• Decided: May 7, 2026
• Docket: 23CA0482
• Status: Unpublished

Opinion

23CA0482 Peo v Selders 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0482 Mesa County District Court No. 14CR743 Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyle Dean Selders,

Defendant-Appellant.

ORDERS AFFIRMED

Division I Opinion by JUDGE J. JONES Lum and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026

Philip J. Weiser, Attorney General, Katharine J. Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julieanne Frachione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Kyle Dean Selders, appeals the postconviction

court’s order granting the prosecution’s Crim. P. 35(a) motion to

correct an illegal sentence and its order imposing a legal sentence.

He contends that the correction of his illegal sentence violated his

constitutional right to due process or, alternatively, that the

prosecution’s request to correct the illegal sentence is barred by the

doctrine of laches. We affirm.

I. Background

¶2 In 2015, Selders pleaded guilty to an added count of class 3

felony sexual assault on a child by one in a position of trust (victim

less than fifteen years of age). In exchange, the prosecution agreed

to dismiss the original charges. The district court sentenced

Selders to ten years on sex offender intensive supervision probation

(SOISP), with two years in community corrections and ninety days

in jail.

¶3 Thereafter, Selders was successfully discharged from

community corrections and sex offense specific treatment, and his

probation officer periodically sought to modify his probation

conditions to be less restrictive. At some point, the officer

1 requested, and the court granted, the modification of his probation

from SOISP supervision to non-SOISP supervision.

¶4 In 2022, while Selders was still on probation, the prosecution

filed the underlying Crim. P. 35(a) motion, arguing that the

determinate ten-year SOISP sentence was illegal and that the

applicable statute required the imposition of an indeterminate

twenty-year-to-life SOISP sentence for a class 3 felony sex offense.

Selders conceded that his original sentence was illegal but argued

that the court should not correct it because the prosecution’s

request was barred by the doctrine of laches and a sentence

correction would violate his due process right to an expectation of

finality in the original sentence.

¶5 The postconviction court granted the motion, finding that the

original ten-year SOISP sentence wasn’t authorized by law, that it

must be corrected, and that an illegal sentence can be corrected at

any time. The court then imposed the required indeterminate

twenty-year-to-life SOISP sentence for Selders’s sexual assault on a

child by one in a position of trust conviction.

2 II. Legal Authority and Standard of Review

¶6 It is the General Assembly’s prerogative to prescribe

punishments. Snedeker v. People, 2025 CO 10, ¶ 10. “A court may

not impose a sentence that is inconsistent with the terms specified

by statutes.” People v. Dist. Ct., 673 P.2d 991, 995 (Colo. 1983). “A

sentence which is beyond the statutory authority of the court is

illegal.” Id.; see also Tennyson v. People, 2025 CO 31, ¶ 25 (“[A]n

illegal sentence includes a sentence that is not authorized by law

because it fails to comply in full with statutory requirements.”). An

illegal sentence is void, which means it is as if it never existed.

Snedeker, ¶ 16.

¶7 A court has an affirmative duty to correct an illegal, void

sentence. See Whiteaker v. People, 2024 CO 25, ¶ 28 (“When such

error occurs, we have ‘the power and the duty to correct’ the error.”

(quoting Lucero v. People, 2012 CO 7, ¶ 20)); People v. Rockwell, 125

P.3d 410, 414 (Colo. 2005). A court may correct a sentence not

authorized by law “at any time.” Crim. P. 35(a); see also Snow v.

People, 2025 CO 32, ¶ 24 (“[A]n illegal sentence is correctable at any

time,” and “Colorado jurisprudence allows — and, in fact requires

— courts to correct an illegal sentence without any time

3 limitation.”). An illegal sentence may be corrected when requested

by the prosecution or the defendant or upon the court’s own

motion. See People v. White, 179 P.3d 58, 61 (Colo. App. 2007).

¶8 We review de novo the legality of a sentence. Magana v.

People, 2022 CO 25, ¶ 33. We also review de novo the

interpretation of the rules of criminal procedure, see People v.

Corson, 2016 CO 33, ¶ 44, and a constitutional challenge to a

sentencing determination, see Sharrow v. People, 2019 CO 25, ¶ 27.

III. Selders’s Original Sentence was Illegal

¶9 Sexual assault on a child by one in a position of trust

committed against a victim less than fifteen years of age is a class 3

felony, see § 18-3-405.3(2)(a), C.R.S. 2025, and a sex offense, see

§ 18-1.3-1003(5)(a)(V), C.R.S. 2025. If a court imposes probation

for a conviction of a class 3 felony sex offense, it must sentence the

sex offender to an indeterminate term of twenty years to life on

SOISP. See §§ 18-1.3-1003(4), 18-1.3-1004(2)(a), C.R.S. 2025.

¶ 10 Accordingly, Selders’s original ten-year SOISP sentence wasn’t

authorized by law.

4 IV. Selders’s Due Process Rights Weren’t Violated

¶ 11 Nevertheless, Selders contends that the postconviction court

violated his constitutional due process rights by granting the

prosecution’s Crim. P. 35(a) motion and imposing a legal sentence

because (1) he had developed a constitutionally protected

expectation of finality in the original, illegal ten-year SOISP

sentence; or (2) the correction of his original, illegal sentence shocks

the conscience.

¶ 12 As a threshold matter, the People argue that we shouldn’t

address Selders’s due process claim because he didn’t raise the

argument in his objection to the Crim. P. 35(a) motion. See People

v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (“[I]ssues not raised in or

decided by a lower court will not be addressed for the first time on

appeal.”).

¶ 13 We agree with the People that, while mentioned in his

objection to the motion, Selders didn’t present a developed due

process argument. But in the interest of judicial economy, we

choose to address Selders’s appellate due process argument.

5 A. Selders Didn’t Develop an Expectation of Finality in his Illegal Probationary Sentence

¶ 14 Among other things, the Due Process Clause provides

heightened protection against government interference with certain

fundamental rights. Washington v. Glucksberg, 521 U.S. 702, 719-

20 (1997). Specifically, due process protections are extended to

those fundamental rights that are deeply rooted in this nation’s

history and tradition and which are carefully described. Id. at 720-

21; see also Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1015

n.7 (Colo. 1982) (“Fundamental rights are essentially those rights

which have been recognized as having a value essential to

individual liberty in our society.”). Courts must be reluctant to

recognize new fundamental rights and must exercise the utmost

care when doing so. Glucksberg, 521 U.S. at 720; see also

Robertson v. City & County of Denver, 874 P.2d 325, 340 (Colo.

1994) (Vollack, J., concurring) (“The United States Supreme Court

has found only a limited group of fundamental rights and has been

reluctant to expand the list of fundamental constitutional rights.”).

¶ 15 Selders asserts that the court’s correction of his illegal

ten-year SOISP sentence to a legal twenty-year-to-life SOISP

6 sentence violated his due process right to the expectation of finality

in the original, illegal sentence. He relies heavily on Jordan v.

United States, 235 A.3d 808, 811, 814-21 (D.C. 2020), for the

propositions that (1) in certain circumstances, a defendant can

develop an expectation of finality in a sentence such that a later,

upward revision of the sentence would violate due process; and (2)

such an expectation of finality can crystalize even as to illegal

sentences.

¶ 16 Two Colorado opinions discussed, but didn’t resolve, this

issue. In People v. Bassford, 2014 COA 15, ¶¶ 33, 50 n.6, a

division of this court suggested that due process could protect a

defendant’s right to the expectation of finality in a sentence, but it

declined to address the undeveloped argument. And in People v.

Wiseman, 2017 COA 49M, ¶¶ 31-33, another division rejected the

defendant’s argument that his due process claim implicated a

fundamental right to the expectation of finality in a sentence,

instead evaluating the claim under the shock-the-conscience test.

But the concurring opinion did acknowledge that, while not

applicable in that case, there could be other situations in which a

defendant could successfully assert a substantive due process

7 claim based on the expectation of finality in a sentence. Id. at ¶¶

58-63 (Berger, J., concurring).

¶ 17 Assuming, without deciding, that due process can afford a

defendant the right to an expectation of finality in an illegal

sentence, we aren’t convinced that Selders’s expectation of finality

in his original, illegal ten-year SOISP sentence crystalized such that

the correction of the sentence violated due process.

¶ 18 “A defendant . . . does not automatically acquire a vested

interest in a shorter, but incorrect sentence.” United States v.

Davis, 112 F.3d 118, 123 (3d Cir. 1997). Rather, a defendant’s due

process right to the expectation of finality in a sentence will

crystalize in only rare or extreme cases. See id. (“It is only in an

extreme case that a later upward revision of a sentence is so unfair

that it is inconsistent with the fundamental notions of fairness

found in the due process clause.”); DeWitt v. Ventetoulo, 6 F.3d 32,

36 (1st Cir. 1993) (concluding that the underlying — and “very

unusual” — case fell within “the very rare exception to the general

rule that courts can, after sentence, revise sentences upward to

correct errors”); Jordan, 235 A.3d at 821 (Due process protections

8 apply in “the rare or extreme case in which a defendant’s

expectation of finality has crystalized.”).

¶ 19 In determining whether a defendant’s situation constitutes the

extreme case where an expectation of finality in a sentence has

crystalized, courts have identified certain nonexclusive factors that

should be considered, including (1) the extent of the delay in

correcting the sentence; (2) the defendant’s contribution to the

mistaken sentence; (3) the prosecution’s culpability in the mistaken

sentence and its diligence in seeking to correct the sentence; (4) the

reasonableness of the defendant’s expectation of finality in the

sentence; and (5) the prejudice to the defendant in correcting the

sentence. See DeWitt, 6 F.3d at 35; Jordan, 235 A.3d at 821-22.

¶ 20 We agree with Selders that the nearly eight-year delay in

correcting his illegal ten-year SOISP sentence and the prosecution’s

failure to seek correction of the sentence during any of the

postconviction opportunities to do so weigh in favor of a conclusion

that his expectation of finality in the original sentence had

crystalized. See DeWitt, 6 F.3d at 36 (The defendant’s expectation

of finality in his sentence crystalized such that the correction of the

sentence violated due process, in part because of “the multi-year

9 period between the suspension and the reimposition of sentence . . .

[and] the unusual tardiness of the state in failing to correct the

error.”); Jordan, 235 A.3d at 822-23, 827 (concluding that the

defendant’s expectation of finality in his sentence crystalized such

that the correction of the sentence violated due process, in part

because of the sixteen-year gap between the imposition of the

defendant’s sentence and the motion to increase the sentence, and

the government’s missed opportunities over those sixteen years to

correct the sentence).

¶ 21 But we conclude that other factors weigh more heavily against

a conclusion that Selders’s situation constitutes an “extreme case”

such that he developed a reasonable expectation of finality in his

original sentence and would be entitled to due process protection.

See Jordan, 235 A.3d at 822 (“No one factor is dispositive, and all

must be analyzed and balanced to determine whether a defendant’s

expectation of finality in his or her sentence has crystalized, such

that it is protected by the Due Process Clause.”).

¶ 22 Most importantly, Selders hasn’t cited, nor have we found, any

authority recognizing a due process right to the expectation of

finality in a probationary sentence, much less a probationary

10 sentence that the defendant was still serving when the prosecution

sought to correct the sentence. Instead, a defendant’s expectation

of finality has been recognized in cases that involved prison

sentences. See Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.

1978) (“After a substantial period of time . . . , it might be

fundamentally unfair, and thus violative of due process for a court

to alter even an illegal sentence in a way which frustrates a

prisoner’s expectations by postponing his parole eligibility or release

date far beyond that originally set.”); Jordan, 235 A.3d at 825 (“[A]

due process violation [can arise] even though [the defendant’s]

sentence was increased while he was incarcerated because such a

due process right does not mature only when an individual is

released from prison, i.e., it is not linked only to a defendant’s

liberty interest upon release from incarceration.”); DeWitt, 6 F.3d at

35-36.

¶ 23 Probation is a sentencing alternative to a prison sentence. See

§§ 18-1.3-1004(2)(a), 18-1.3-104(1)(a), C.R.S. 2025. If a defendant

fails to comply with the conditions of probation, the probationary

sentence is subject to revocation, and, if revoked, the defendant is

subject to resentencing to any sentence that might originally have

11 been imposed. See §§ 18-1.3-1010(2), 16-11-205, 16-11-206,

C.R.S. 2025; Byrd v. People, 58 P.3d 50, 55 (Colo. 2002). Thus,

probation serves as “a conditional suspension of what would

otherwise have been a harsher sentence.” Byrd, 58 P.3d at 55-56;

see Veith v. People, 2017 CO 19, ¶ 17; Holdren v. People, 452 P.2d

28, 30 (Colo. 1969).

¶ 24 Selders fails to explain why he developed a reasonable

expectation of finality in a probationary sentence that he was still

serving, that was subject to revocation, and that, if revoked, would

have been replaced with a new sentence, possibly to prison. See

Holdren, 452 P.2d at 30 (A probationer “is charged with the

knowledge that a breach of probationary terms will most assuredly

result in a revocation of probation and a subsequent sentence.”);

People v. Zimmerman, 616 P.2d 997, 999 (Colo. App. 1980) (“[A]

criminal defendant is presumed to know that the violation of any

term of his probation may result in revocation.”); cf. People v.

Chavez, 32 P.3d 613, 614 (Colo. App. 2001) (“A defendant can have

no legitimate expectation of finality in a sentence that, by statute, is

subject to further review and revision. For this reason, [extra-

jurisdictional] courts have rejected double jeopardy claims where,

12 for instance, statutes have authorized the imposition of more severe

sentences following revocation of probation . . . .” (citations

omitted)).

¶ 25 In this regard, Selders does assert that the transition of his

sentence from community-based SOISP supervision to community-

based non-SOISP supervision is analogous to cases where an

incarcerated defendant was erroneously released from prison and

due process was implicated by the defendant’s reincarceration. See

DeWitt, 6 F.3d at 35-36; Jordan, 235 A.3d at 825-26. We aren’t

persuaded that the situations are analogous. See Veith, ¶¶ 14, 17

(“[A] probationary sentence is generally viewed as a more lenient

sentencing alternative to a prison sentence,” and, therefore, “the

receipt of probation is a privilege, not a right.”). Indeed, Selders

hasn’t explained how the conditions of his community-based

supervision will impede his ability to continue his day-to-day life

activities to a significant extent, much less to the extent that would

result from incarceration.

¶ 26 Furthermore, Selders argues that he was “severely prejudiced

by the correction” of his sentence because “[he] has been placed

back on SOISP supervision — ‘the highest level of supervision’

13 provided to probationers — for an indeterminate future period.”

Because every defendant will be prejudiced by the upward

correction of an illegal sentence, the correction of Selders’s sentence

to reflect an indeterminate, rather than determinate, term isn’t a

rare circumstance giving rise to a due process violation. See

Wiseman, ¶ 62 (Berger, J., concurring) (“[G]iven the enhanced

requirements for a substantive due process claim, [the defendant]

cannot establish a substantive due process violation” because,

“[t]hough his expectations . . . of a determinate sentence will be

seriously frustrated by the imposition of an indeterminate sentence

. . . , his situation is different in kind from that of a prisoner who is

erroneously released from custody and spends a substantial

amount of time at liberty.”). And we aren’t convinced that Selders’s

assertion, without record support, that he was placed back on

SOISP supervision is an extreme circumstance violating due

process.

¶ 27 In further support of his prejudice argument, Selders

highlights that, before the correction to his sentence, he discharged

the incarceration conditions of his probation terms, successfully

completed approximately eight years on SOISP, reunited with his

14 wife and children, started a business, supported his family, and

became a valued member of the community. He doesn’t, however,

indicate that the correction of his sentence detrimentally affects the

status of any of these personal and probationary accomplishments.1

¶ 28 Thus, we aren’t persuaded that the prejudice to Selders rises

to the level of extreme or rare circumstances violating due process.

See DeWitt, 6 F.3d at 35-36 (The reincarceration of an inmate who

“laid down new roots in society, acquir[ed] a job and reestablish[ed]

family ties” during his erroneous release from prison was

sufficiently prejudicial so as to violate due process.); Jordan, 235

A.3d at 824 (inmate who spent sixteen years in prison planning for

life after his parole release was sufficiently prejudiced by the

correction to his sentence and the resulting three-year delay of his

parole eligibility date so as to violate due process).

¶ 29 For the foregoing reasons, we conclude that the correction of

Selders’s sentence didn’t violate a fundamental due process right.

1 In this regard, being required to continue on probation is much

different than having to return to prison.

15 B. The Prosecution’s Motion to Correct Selders’s Illegal Sentence Didn’t Shock the Conscience

¶ 30 Selders alternatively argues that his due process rights were

violated because the prosecution’s Crim. P. 35(a) request to correct

his original, illegal sentence shocked the conscience. We disagree.

¶ 31 The “shock the conscience” standard is typically employed

“when determining whether governmental action violates due

process rights.” Rosales-Mireles v. United States, 585 U.S. 129, 137

(2018). “[I]n a due process challenge to executive action, the

threshold question is whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” County of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998); see Wiseman, ¶ 33.

¶ 32 “[T]he Constitution does not guarantee due care on the part of

state officials; liability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process.” Lewis, 523

U.S. at 849. Rather, “conduct intended to injure in some way

unjustifiable by any government interest is the sort of official action

most likely to rise to the conscience-shocking level.” Id. “The

shock-the-conscience test is an extremely demanding one, and

16 challenges analyzed under it rarely succeed.” Wiseman, ¶ 34

(quoting Gonzalez-Fuentes v. Molina, 607 F.3d 864, 885 (1st Cir.

2010)).

¶ 33 We aren’t convinced that the prosecution’s request to correct

the original, void ten-year SOISP sentence after Selders successfully

served most, but not all, of it rose to the level of a conscience-

shocking intent to injure, rather than constituting simple

negligence by the prosecution in belatedly ensuring the imposition

of a legal sentence. See Bassford, ¶ 30 (“[O]ur supreme court has

noted that imposing a legal sentence in place of an illegal one

‘protects society’s legitimate interest in adequate sentences for

convicted criminals and in the overall uniformity of sentences

imposed on similarly situated violators.’” (quoting Dist. Ct., 673 P.2d

at 997)); cf. Wiseman, ¶ 61 (Berger, J., concurring) (“[I]t is virtually

impossible to meet the ‘shocks the conscience’ test prescribed by

the Supreme Court in Lewis . . . when an illegal sentence is

corrected while the defendant remains in custody.”).

¶ 34 We further conclude that the prosecution’s action wasn’t

necessarily egregious or outrageous because its filing of a Crim. P.

35(a) motion wasn’t needed to subject Selders’s illegal sentence to

17 correction. Instead, as noted above, the court had an affirmative

duty to correct Selders’s illegal sentence on its own motion at any

time. See White, 179 P.3d at 61.

C. The Court Properly Corrected the Original, Illegal Sentence

¶ 35 Accordingly, we conclude that the court correctly fulfilled its

obligation to vacate Selders’s illegal, void ten-year SOISP sentence

and to resentence him to twenty years to life on SOISP — the only

probationary sentence that was statutorily authorized for a class 3

felony sex offense. See § 18-1.3-1004(2)(a); see also Wiseman, ¶ 24

(“Because [the defendant’s] original and revised [determinate]

sentences were both illegal, a remand for the imposition of a ‘legal’

indeterminate sentence . . . [wa]s required.”).

V. The Doctrine of Laches Doesn’t Bar the Correction of Selders’s Illegal Sentence

¶ 36 Selders also asserts that the prosecution’s request to correct

his original, illegal sentence was barred by the doctrine of laches.

We disagree.

¶ 37 The People argue that Selders waived this issue because he

failed to secure a ruling from the court on his laches argument. See

People v. Young, 923 P.2d 145, 149 (Colo. App. 1995). While true,

18 we nevertheless choose to address the court’s implicit denial of the

claim.

¶ 38 “Laches is an equitable doctrine that may be asserted to deny

relief to a party whose unconscionable delay in enforcing [their]

rights has prejudiced the party against whom relief is sought.”

Robbins v. People, 107 P.3d 384, 388 (Colo. 2005).

¶ 39 In Wiseman, a division of this court rejected the application of

laches to bar the correction of an illegal sentence and the

imposition of a legal sentence. Wiseman, ¶¶ 40-44. In so holding,

the division was persuaded by the reasoning of extra-jurisdictional

authority, noting the following:

• “[C]orrection of [the defendant’s] sentence[,] even though delayed, must be allowed in order to carry out the legislative purpose in establishing minimum sentences and to preclude other defendants from asserting a vested right in an illegal sentence.” See id. at ¶ 42 (quoting State v. Price, 715 P.2d 1183, 1186 (Alaska Ct. App. 1986)).

• “Defendants and their counsel should not be encouraged to remain silent while judges and prosecutors negligently cooperate in the imposition of an illegal sentence.” See id. (quoting Price, 715 P.2d at 1186).

• Correction of an illegal sentence must be permitted “[i]n order to ensure that the law will be carried out, and that judicial negligence will not result in disparate and

19 unequal sentencing.” See id. (quoting Price, 715 P.2d at 1186).

• “To follow the argument of the defendants would be to affirm the imposition of illegal sentences and to violate our duty to correct illegal sentences whenever that illegality is discovered by the court.” See id. at ¶ 43 (quoting United States v. Romero, 642 F.2d 392, 396 (10th Cir. 1981)).

• “The doctrine of laches is an equitable remedy which is applied to promote justice. Needless to say, justice is not fostered by preventing the court from correcting an illegal sentence.” See id. (quoting Romero, 642 F.2d at 396).

• “A laches argument ‘is not available in the context of a motion to correct an illegal sentence because an illegal sentence can be corrected ‘at any time.’” See id. (quoting Greco v. State, 48 A.3d 816, 831 (Md. 2012)).

¶ 40 We are persuaded by Wiseman and the reasoning of the cases

on which it relies. Moreover, it would be nonsensical to apply the

doctrine of laches to bar a party’s request to correct an illegal

sentence when the court has an affirmative duty to do so on its own

motion even in the absence of such request. See id. (“The fact that

the government may fail to exert due diligence in presenting this

issue to the trial court may not prevent the trial court from fulfilling

its judicial obligations” to correct an invalid sentence. (quoting

Romero, 642 F.2d at 396)).

20 ¶ 41 Thus, we conclude that the postconviction court didn’t err by

declining to apply the doctrine of laches to bar the prosecution’s

Crim. P. 35(a) motion to correct Selders’s illegal sentence.

VI. Disposition

¶ 42 The orders are affirmed.

JUDGE LUM and JUDGE MEIRINK concur.