24CA0926 Peo v Shockey 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0926 City and County of Denver District Court No. 17CR7042 Honorable Ericka F.H. Englert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jacob A. Shockey,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE WELLING Tow and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Jacob A. Shockey, appeals the postconviction
court’s order denying his Crim. P. 35(c) petition for postconviction
relief without an evidentiary hearing. We affirm.
I. Background
¶2 Shockey was charged with (1) criminal attempt to commit
murder in the first degree; (2) assault in the first degree;
(3) possession with intent to manufacture or distribute a controlled
substance; and (4) possession of a weapon by a previous offender.
The People later added two crime of violence sentence enhancers.
Pursuant to a plea agreement, Shockey pleaded guilty to count
two — assault in the first degree — and the People dismissed the
remaining counts. On June 1, 2018, the district court sentenced
him to twenty years in the custody of the Department of
Corrections. Shockey didn’t directly appeal his conviction or
sentence.
¶3 On August 8, 2022, Shockey filed a pro se petition for
postconviction relief under Crim. P. 35(c), asserting that his plea
counsel was ineffective because he had promised Shockey that he
would file a Crim. P. 35(b) motion to reduce his sentence after
Shockey pleaded guilty, but that plea counsel never did so.
1 Shockey attached to the petition a letter dated August 20, 2021,
that his counsel had sent him. The letter said in its entirety, as
follows:
I received your letter about a 35b in the Denver case I represented you in. I apologize, I never filed it. From what I remember you still had to deal with your F1 in Arapahoe and we didn’t know what was going to happen. Because I failed to file your 35b though, you should be able to file a 35c ineffective assistance of counsel against me and get your 35b that way. Attached are the forms you need to fill out and mail to the Denver court. Your Denver case # was 17CR7042. Mail the form to Division 5A of the Denver District Court at 520 W. Colfax Ave, Denver, CO 80204. Let me know if there is anything else I can do to help. Good luck with everything going forward.
¶4 In his petition, Shockey checked the box indicating that his
petition was untimely but that the justifiable excuse or excusable
neglect exception applied. He further explained that he had “only
just recently found out that there are time lines for such matters”
because he was “law dumb.” He explained that, had he known his
counsel wouldn’t file the Crim. P. 35(b) motion, he “wouldn’t [have]
felt pressured into agreeing with the plea agreement” and he
pleaded guilty because his counsel had said he would file a Crim. P.
2 35(b) motion. In turn, he asked that the plea agreement be voided
and that he be permitted to withdraw his guilty plea.
¶5 A week later, the postconviction court entered an order
appointing postconviction counsel “for the purpose of pursuing and
presenting an ineffective assistance of counsel claim regarding [plea
counsel’s] failure to file a 35(b) motion.” On October 24, 2023,
postconviction counsel filed a supplemental petition requesting that
the postconviction court (1) find that Shockey’s pro se petition was
timely filed and (2) conduct an evidentiary hearing on the pro se
petition. After the People filed a response, the postconviction court
entered an order denying Shockey’s petition without a hearing
because he hadn’t adequately alleged facts that, if true, established
(1) justifiable excuse or excusable neglect to allow his untimely
filing or (2) that he was prejudiced by his plea counsel’s deficient
performance.
II. Standard of Review and Legal Principles
¶6 We review de novo a district court’s denial of a Crim. P. 35(c)
petition without a hearing. People v. Medina, 2019 COA 103M, ¶ 4.
Once a district court refers the matter to counsel, it can
nevertheless deny the motion without a hearing if “based on the
3 pleadings, the court finds that it is appropriate to enter a ruling
containing written findings of fact and conclusions of law.” Crim. P.
35(c)(3)(V).
¶7 A Crim. P. 35(c) petition must be filed within three years of a
defendant’s conviction for a felony offense other than a class 1
felony. § 16-5-402(1), C.R.S. 2025. When, as here, there was no
direct appeal, a conviction is final on the date the district court
imposed the sentence. See People v. Collier, 151 P.3d 668, 671
(Colo. App. 2006). But there is an exception to the three-year
limitations period if a defendant establishes that his “failure to seek
relief within the applicable time period was the result of
circumstances amounting to justifiable excuse or excusable
neglect.” § 16-5-402(2)(d). Factors that a court should consider in
determining whether a defendant has established justifiable excuse
or excusable neglect, include
(1) whether there existed circumstances or outside influences preventing a challenge to a prior conviction; (2) whether a defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of avenues of relief that are available; (3) whether a defendant either knew that the conviction was constitutionally infirm or had reason to question its validity;
4 (4) whether a defendant had other means of preventing the government’s use of the conviction so that a post-conviction challenge was previously unnecessary; (5) the length of time that has elapsed between the date of conviction and defendant’s challenge; and (6) the effect that such period has on the state’s ability to defend against the challenge.
People v. Vigil, 983 P.2d 805, 809-10 (Colo. App. 1999) (citing
People v. Wiedemer, 852 P.2d 424, 441-42 (Colo. 1993)).
¶8 “[A] Crim.[ ]P. 35(c) motion must allege facts that if true would
establish justifiable excuse or excusable neglect in order to entitle
the moving party to a hearing on the applicability of this exception
to the time bar of § 16-5-402(1).” Wiedemer, 852 P.2d at 440 n.15.
Ineffective assistance can amount to justifiable excuse or excusable
neglect when counsel’s ineffectiveness prevents the defendant from
pursuing a timely claim for postconviction relief. People v. Martinez-
Huerta, 2015 COA 69, ¶ 21. But a defendant attempting to show
justifiable excuse or excusable neglect must account for the entire
period up to the filing of the untimely claim. See Wiedemer, 852
P.2d at 441.
5 III. Analysis
¶9 We agree with the postconviction court that Shockey’s Crim.
P. 35(c) petition was untimely and that he didn’t allege facts in his
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24CA0926 Peo v Shockey 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0926 City and County of Denver District Court No. 17CR7042 Honorable Ericka F.H. Englert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jacob A. Shockey,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE WELLING Tow and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Jacob A. Shockey, appeals the postconviction
court’s order denying his Crim. P. 35(c) petition for postconviction
relief without an evidentiary hearing. We affirm.
I. Background
¶2 Shockey was charged with (1) criminal attempt to commit
murder in the first degree; (2) assault in the first degree;
(3) possession with intent to manufacture or distribute a controlled
substance; and (4) possession of a weapon by a previous offender.
The People later added two crime of violence sentence enhancers.
Pursuant to a plea agreement, Shockey pleaded guilty to count
two — assault in the first degree — and the People dismissed the
remaining counts. On June 1, 2018, the district court sentenced
him to twenty years in the custody of the Department of
Corrections. Shockey didn’t directly appeal his conviction or
sentence.
¶3 On August 8, 2022, Shockey filed a pro se petition for
postconviction relief under Crim. P. 35(c), asserting that his plea
counsel was ineffective because he had promised Shockey that he
would file a Crim. P. 35(b) motion to reduce his sentence after
Shockey pleaded guilty, but that plea counsel never did so.
1 Shockey attached to the petition a letter dated August 20, 2021,
that his counsel had sent him. The letter said in its entirety, as
follows:
I received your letter about a 35b in the Denver case I represented you in. I apologize, I never filed it. From what I remember you still had to deal with your F1 in Arapahoe and we didn’t know what was going to happen. Because I failed to file your 35b though, you should be able to file a 35c ineffective assistance of counsel against me and get your 35b that way. Attached are the forms you need to fill out and mail to the Denver court. Your Denver case # was 17CR7042. Mail the form to Division 5A of the Denver District Court at 520 W. Colfax Ave, Denver, CO 80204. Let me know if there is anything else I can do to help. Good luck with everything going forward.
¶4 In his petition, Shockey checked the box indicating that his
petition was untimely but that the justifiable excuse or excusable
neglect exception applied. He further explained that he had “only
just recently found out that there are time lines for such matters”
because he was “law dumb.” He explained that, had he known his
counsel wouldn’t file the Crim. P. 35(b) motion, he “wouldn’t [have]
felt pressured into agreeing with the plea agreement” and he
pleaded guilty because his counsel had said he would file a Crim. P.
2 35(b) motion. In turn, he asked that the plea agreement be voided
and that he be permitted to withdraw his guilty plea.
¶5 A week later, the postconviction court entered an order
appointing postconviction counsel “for the purpose of pursuing and
presenting an ineffective assistance of counsel claim regarding [plea
counsel’s] failure to file a 35(b) motion.” On October 24, 2023,
postconviction counsel filed a supplemental petition requesting that
the postconviction court (1) find that Shockey’s pro se petition was
timely filed and (2) conduct an evidentiary hearing on the pro se
petition. After the People filed a response, the postconviction court
entered an order denying Shockey’s petition without a hearing
because he hadn’t adequately alleged facts that, if true, established
(1) justifiable excuse or excusable neglect to allow his untimely
filing or (2) that he was prejudiced by his plea counsel’s deficient
performance.
II. Standard of Review and Legal Principles
¶6 We review de novo a district court’s denial of a Crim. P. 35(c)
petition without a hearing. People v. Medina, 2019 COA 103M, ¶ 4.
Once a district court refers the matter to counsel, it can
nevertheless deny the motion without a hearing if “based on the
3 pleadings, the court finds that it is appropriate to enter a ruling
containing written findings of fact and conclusions of law.” Crim. P.
35(c)(3)(V).
¶7 A Crim. P. 35(c) petition must be filed within three years of a
defendant’s conviction for a felony offense other than a class 1
felony. § 16-5-402(1), C.R.S. 2025. When, as here, there was no
direct appeal, a conviction is final on the date the district court
imposed the sentence. See People v. Collier, 151 P.3d 668, 671
(Colo. App. 2006). But there is an exception to the three-year
limitations period if a defendant establishes that his “failure to seek
relief within the applicable time period was the result of
circumstances amounting to justifiable excuse or excusable
neglect.” § 16-5-402(2)(d). Factors that a court should consider in
determining whether a defendant has established justifiable excuse
or excusable neglect, include
(1) whether there existed circumstances or outside influences preventing a challenge to a prior conviction; (2) whether a defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of avenues of relief that are available; (3) whether a defendant either knew that the conviction was constitutionally infirm or had reason to question its validity;
4 (4) whether a defendant had other means of preventing the government’s use of the conviction so that a post-conviction challenge was previously unnecessary; (5) the length of time that has elapsed between the date of conviction and defendant’s challenge; and (6) the effect that such period has on the state’s ability to defend against the challenge.
People v. Vigil, 983 P.2d 805, 809-10 (Colo. App. 1999) (citing
People v. Wiedemer, 852 P.2d 424, 441-42 (Colo. 1993)).
¶8 “[A] Crim.[ ]P. 35(c) motion must allege facts that if true would
establish justifiable excuse or excusable neglect in order to entitle
the moving party to a hearing on the applicability of this exception
to the time bar of § 16-5-402(1).” Wiedemer, 852 P.2d at 440 n.15.
Ineffective assistance can amount to justifiable excuse or excusable
neglect when counsel’s ineffectiveness prevents the defendant from
pursuing a timely claim for postconviction relief. People v. Martinez-
Huerta, 2015 COA 69, ¶ 21. But a defendant attempting to show
justifiable excuse or excusable neglect must account for the entire
period up to the filing of the untimely claim. See Wiedemer, 852
P.2d at 441.
5 III. Analysis
¶9 We agree with the postconviction court that Shockey’s Crim.
P. 35(c) petition was untimely and that he didn’t allege facts in his
pro se petition or supplemental petition that, if true, established
justifiable excuse or excusable neglect. We therefore affirm.
¶ 10 It’s not disputed that Shockey filed his petition after the three-
year deadline for doing so had passed. The district court sentenced
Shockey on June 1, 2018. Shockey filed his pro se petition for
postconviction relief pursuant to Crim. P. 35(c) on August 8, 2022,
more than four years and two months later. He, therefore, missed
the statutory deadline to file his petition by approximately one year
and two months. § 16-5-402(1).
¶ 11 Moreover, Shockey didn’t allege facts that, even if true,
established justifiable excuse or excusable neglect to entitle him to
a hearing on whether this exception to the three-year time bar
applied. See Wiedemer, 852 P.2d at 440 n.15.
¶ 12 For the purpose of our analysis, we assume that Shockey
adequately alleged facts that, if true, would explain his failure to file
his Crim. P. 35(c) motion before he received the August 2021 letter
from his plea counsel explaining that counsel had failed to file a
6 Crim. P. 35(b) and that, based on this failure, plea counsel believed
Shockey had a meritorious Crim. P. 35(c) motion. But he must still
account for the additional year delay after receiving that letter. See
id. at 441. That’s where his petition and supplemental petition fall
short.
¶ 13 To account for the delay between August 2021 and August
2022, Shockey explained in his pro se petition that he had only
recently found out about the time limits to file a Crim. P. 35(c)
petition and that he was “law dumb.” His postconviction counsel’s
supplemental petition didn’t provide much more information on this
issue or cite any applicable case law.1 The supplemental petition
merely explained that Shockey filed his petition a year after getting
plea counsel’s letter for the following three reasons:
1. Even though plea counsel’s letter said that Crim. P. 35(c)
forms were attached, Shockey “never received the forms.”
1 Postconviction counsel cites only one case — Swainson v. People,
712 P.2d 479 (Colo. 1986). But after explaining in detail the facts of the case, she doesn’t explain why it’s analogous to the facts here. In any event, Swainson addresses the time bar to filing a Crim. P. 35(b) motion, not a Crim. P. 35(c) motion, as is applicable here. See id. at 480-81.
7 2. Shockey is “law illiterate” and “needed assistance” to file
the petition, and he didn’t receive such assistance until
an unspecified time in 2022 when he met with an
attorney who was representing him in a different case.
3. Shockey didn’t “have access to the law library at the
Colorado State Penitentiary Facility, where he resided.”
¶ 14 Assuming these assertions are true, as we must, they don’t
establish justifiable excuse or excusable neglect. Taken together,
his contention from his pro se petition and his first and second
contentions from his supplemental petition amount to an argument
that the court should have excused his untimeliness because he
didn’t understand the law and didn’t receive adequate legal
assistance. But “[i]gnorance or misunderstanding of the law and
lack of legal assistance does not excuse the late filing of a Crim. P.
35(c) motion.” People v. Green, 36 P.3d 125, 128 (Colo. App. 2001).
¶ 15 Shockey’s third contention — that he didn’t have access to his
prison’s law library — doesn’t fare any better. The entirety of his
assertion of lack of access to the law library is as quoted above. In
his supplemental petition, he doesn’t explain when he didn’t have
8 access to the law library.2 Nor does he explain why this unspecified
lack of access impeded his ability to file his Crim. P. 35(c) motion
for more than a year after he received plea counsel’s letter. After
all, that letter gave him all the information he needed to plead his
claim (including where it should be sent) and, in that letter, plea
counsel offered to provide further assistance. Neither the petition
nor the supplemental petition contains any factual allegations
concerning any efforts that Shockey made to promptly and
diligently follow up on the information that plea counsel provided to
him in August 2021. Simply put, Shockey’s assertion of lack of
library access is too bare and conclusory to establish why he waited
a year after receiving plea counsel’s letter to file his petition. See
People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“[I]f the
claims are bare and conclusory in nature, and lack supporting
factual allegations, the motion may also be denied without a
hearing.”).
2 On appeal, Shockey asserts that he didn’t have access to the law
library because of COVID restrictions. Because he didn’t present this argument to the postconviction court, we decline to consider it. People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996).
9 ¶ 16 We therefore agree with the postconviction court’s conclusion
that Shockey failed to assert facts that, if true, established
justifiable excuse or excusable neglect. And because we conclude
that Shockey failed to justify the late filing of his petition, we need
not reach the issue of whether Shockey adequately alleged prejudice
(or his contention that prejudice can be presumed under these
circumstances). See People v. Kadell, 2017 COA 124, ¶ 39 (noting
that if a court finds no justifiable excuse or excusable neglect that
excuses an untimely Crim. P. 35(c) filing, then the court need not
reach the merits of the ineffective assistance of counsel claim).
IV. Disposition
¶ 17 The order is affirmed.
JUDGE TOW and JUDGE LIPINSKY concur.