Peo v. Sharp

• Court: Colorado Court of Appeals
• Decided: September 25, 2025
• Docket: 24CA0765
• Status: Unpublished

Opinion

24CA0765 Peo v Sharp 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0765 Adams County District Court No. 11CR1307 Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Harley David Sharp,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE SULLIVAN Welling and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 25, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Harley David Sharp, Pro Se ¶1 Defendant, Harley David Sharp, appeals the district court’s

order denying his most recent Crim. P. 35(c) motion without a

hearing. We affirm.

I. Background

¶2 A jury convicted Sharp of sexual assault on a child, sexual

assault on a child as part of a pattern of abuse, and sexual assault

on a child by one in a position of trust based on allegations that he

had sexually assaulted his daughter. The district court sentenced

Sharp to twenty-four years to life in the custody of the Department

of Corrections. A division of this court affirmed his convictions on

direct appeal. See People v. Sharp, (Colo. App. No. 13CA1761, June

11, 2015) (not published pursuant to C.A.R. 35(f)) (Sharp I).

Sharp’s convictions became final when the mandate issued on

March 25, 2016.

¶3 Sharp filed a timely pro se Crim. P. 35(c) motion alleging

various claims of ineffective assistance of trial counsel and appellate

counsel, and sought a new trial based on newly discovered

evidence. Postconviction counsel was appointed and supplemented

Sharp’s pro se motion. The district court held an evidentiary

hearing and vacated Sharp’s judgment of conviction and sentence.

1 The prosecution appealed, and a division of this court reversed the

district court and reinstated Sharp’s judgment of conviction and

sentence. See People v. Sharp, 2019 COA 133, ¶ 26 (Sharp II).

¶4 Two years later, Sharp filed his second pro se Crim. P. 35(c)

motion, alleging, as relevant here, various claims of ineffective

assistance of trial, appellate, and postconviction counsel. The

district court denied the motion and a division of this court

affirmed. See People v. Sharp, (Colo. App. No. 22CA1413, Nov. 16,

2023) (not published pursuant to C.A.R. 35(e)) (Sharp III).

¶5 Days after Sharp appealed the district court’s denial of his

second Crim. P. 35(c) motion, he filed the pro se Crim. P. 35(c)

motion at issue in this appeal. In it he asserted that postconviction

counsel from his initial Crim. P. 35(c) motion was ineffective for

failing to (1) interview or subpoena a private investigator and

detective involved in the investigation of the underlying offenses; (2)

litigate all his postconviction claims; (3) file a motion for disclosure

of “[i]mpeaching [i]nformation”; and (4) adequately cross-examine

trial counsel at the postconviction hearing. Because the district

court did not have jurisdiction to consider the motion given the

pending appeal in Sharp III, the court held the matter in abeyance

2 but allowed Sharp to supplement his motion to attempt to establish

justifiable excuse or excusable neglect. Sharp did so and, following

the issuance of the mandate in Sharp III, the court denied Sharp’s

motion in a written order. The court determined that the motion

was both untimely and successive, or in the alternative, failed on

the merits.

¶6 Sharp appeals, claiming that the district court erred by

denying his motion without a hearing. Because his motion is

successive, we disagree with Sharp.

II. Analysis

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

postconviction relief without an evidentiary hearing. See People v.

Cali, 2020 CO 20, ¶ 14. Likewise, we review de novo whether a

postconviction claim is successive. People v. Thompson, 2020 COA

117, ¶ 42.

¶8 Generally, a district court must deny any claim that was

raised and resolved, or that could have been presented, in a prior

appeal or postconviction proceeding. See Crim. P. 35(c)(3)(VI), (VII).

All of Sharp’s claims concerned the alleged ineffective assistance of

postconviction counsel from his first Crim. P. 35(c) motion.

3 Because Sharp could have raised each of these claims in his second

Crim. P. 35(c) motion, which was filed following the conclusion of

Sharp II, they are successive. See Crim. P. 35(c)(3)(VII).

¶9 We are unpersuaded by Sharp’s argument on appeal that

these claims are “most definitely not successive” because “[t]here

are no limitations to how many petitions a defendant may file.”

Crim. P. 35 proceedings are intended to prevent injustices after

conviction and sentencing, not to provide perpetual review. People

v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996). When Sharp filed his

second Crim. P. 35(c) motion following the conclusion of his initial

postconviction proceeding, the rule required that he include all of

his postconviction claims relating to that proceeding in the motion.

See Crim. P. 35(c)(3)(VII); People v. Taylor, 2018 COA 175, ¶ 20; see

also Adams v. Sagee, 2017 COA 133, ¶ 12 (“[T]he state may require

pro se defendants in criminal cases to adhere to procedural rules,

though their cases often implicate constitutional rights.”).

¶ 10 We also reject Sharp’s assertion that his claims are not

successive because he “qualifies for [j]ustifiable [e]xcuse.” While

Crim. P. 35(c)(3)(VII) contains five exceptions to the successiveness

bar, justifiable excuse and excusable neglect aren’t among them.

4 See Crim. P. 35(c)(3)(VII)(a)-(e); see also Thompson, ¶ 45 (explaining

that, although the time bar for Crim. P. 35(c) motions contains an

exception for justifiable excuse and excusable neglect, the

successiveness bar doesn’t). Nor do we perceive any exception that

might otherwise apply. Sharp’s claims could have been raised in

his second Crim. P. 35(c) motion. See Crim. P. 35(c)(3)(VII).

Because they weren’t, they are successive and the district court

correctly denied them.

¶ 11 Accordingly, because Sharp’s motion is successive, the district

court didn’t err by denying it without appointing counsel or holding

an evidentiary hearing. See People v. Zuniga, 80 P.3d 965, 973

(Colo. App. 2003). Having so concluded, we need not address

whether the court properly denied Sharp’s motion as untimely. See

Thompson, ¶ 55 n.7 (an appellate court may affirm a district court’s

ruling on any ground supported by the record).

III. Disposition

¶ 12 We affirm the order.

JUDGE WELLING and JUDGE GOMEZ concur.