Peo v. Stone

• Court: Colorado Court of Appeals
• Decided: April 9, 2026
• Docket: 25CA0116
• Status: Unpublished

Opinion

25CA0116 Peo v Stone 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0116 City and County of Denver District Court No. 94CR902 Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dale Stone,

Defendant-Appellant.

ORDER AFFIRMED

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Dale Stone, Pro Se ¶1 Defendant, Dale Stone, appeals the district court’s order

denying Stone’s most recent postconviction motion. We affirm.

I. Background

¶2 In 1995, a jury found Stone guilty of eight felony counts

arising from Stone’s robberies and sexual assaults of two women.

The jury subsequently found that the prosecution had proved the

elements of seven habitual criminal counts beyond a reasonable

doubt. The district court imposed an aggregate 192-year prison

sentence, with the sentences for each conviction set at four times

the maximum of the presumptive range under sections

16-13-101(2) and 18-1-105(1)(a)(V)(A), C.R.S. 1994.

¶3 A division of this court affirmed the judgment of conviction

and sentence on direct appeal. People v. Stone, (Colo. App. No.

95CA0895, Apr. 3, 1997) (not published pursuant to C.A.R. 35(f)).

In 1999, Stone filed a Crim. P. 35(c) motion for postconviction relief,

but the record doesn’t reflect a ruling on that motion. In 2021,

Stone filed a second Crim. P. 35 motion. The district court denied

the motion, and a division of this court affirmed. People v. Stone,

(Colo. App. No. 21CA1351, May 25, 2023) (not published pursuant

to C.A.R. 35(e)).

1 ¶4 In 2025, Stone filed the motion that is the subject of this

appeal, titled “Motion to Dismiss Habitual Counts.” Stone argues,

as now relevant, that (1) four of the seven habitual criminal counts

should have been presented as one to the jury because they arose

from one continuous criminal episode and (2) the district court

should consider the merits of the untimely claim in light of the

recent announcement of Erlinger v. United States, 602 U.S. 821

(2024). The district court denied the motion without a hearing. We

agree with the district court that Stone’s motion is time barred and

no exceptions apply. See Crim. P. 35(c)(I); § 16-5-402, C.R.S. 2025.

II. Discussion

¶5 At the outset, we reject Stone’s argument that the district

court erred by deciding the motion under Crim. P. 35 despite its

title. Collateral attacks on a habitual criminal adjudication are

properly raised as Crim. P. 35(c) claims and are subject to the

procedural limitations of that rule. People v. Hampton, 876 P.2d

1236, 1242 (Colo. 1994); see People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006) (the substance of a postconviction motion controls

its designation under Crim. P. 35).

2 A. Applicable Law and Standard of Review

¶6 In Erlinger, the Supreme Court clarified that under the Fifth

and Sixth Amendments, whether a criminal defendant’s prior

convictions were committed on different occasions is the sort of

fact-laden question that a jury must decide. Erlinger, 602 U.S. at

834-35; see People v. Gregg, 2025 CO 57 (interpreting Colorado’s

habitual criminal sentencing scheme in light of Erlinger).

¶7 A Crim. P. 35(c) motion must be filed within three years of a

defendant’s conviction for a non-class 1 felony offense. Crim. P.

35(c)(3)(I); § 16-5-402(1). But, as now relevant, there is an

exception to this time bar when the defendant’s “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).

¶8 We review de novo whether the facts alleged in a Crim. P. 35(c)

motion, if true, would constitute justifiable excuse or excusable

neglect. People v. Hinojos, 2019 CO 60, ¶ 12. A Crim. P. 35(c)

motion may be summarily denied when the motion, files, and record

clearly establish that the defendant’s allegations don’t warrant

relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

3 B. Application

¶9 Stone concedes that the motion, filed twenty-seven years after

the conviction became final, is untimely under section 16-5-402(1).

The untimely filing isn’t excused because, for two reasons, the rule

announced in Erlinger doesn’t affect Stone’s postconviction claim.

First, the record shows that a jury decided whether Stone’s prior

convictions were “separately brought and tried and arose out of

separate and distinct criminal episodes” as an element of each

habitual criminal count. It found that the prosecution had proved

each of seven habitual counts beyond a reasonable doubt. Second,

even if Stone was correct that four of the prior convictions should

have been presented to the jury as one, section 16-13-101(2)

mandated sentencing at four times the maximum of the

presumptive range based on the verdicts on the four remaining

habitual criminal counts.

¶ 10 We thus conclude that Stone’s time-barred claim was properly

denied without a hearing. See Ardolino, 69 P.3d at 77.

III. Disposition

¶ 11 The order is affirmed.

JUDGE LUM and JUDGE MEIRINK concur.