24CA0670 Peo v Swenson 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0670 Arapahoe County District Court No. 15CR185 Honorable Shay K. Whitaker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brandon Joseph Swenson,
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 February 27, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Brandon Joseph Swenson, Pro Se ¶1 Defendant, Brandon Joseph Swenson, appeals the district
court order denying his Crim. P. 35(c) motion. We affirm.
I. Background
¶2 Swenson pleaded guilty in 2016 to first degree burglary,
aggravated robbery, and conspiracy to commit aggravated robbery
for offenses he committed in 2015. He stipulated to consecutive
sentences of ten years in Department of Corrections (DOC) custody
on each count, with a total of sixty months of mandatory parole.
¶3 At sentencing, plea counsel urged the court to consider “an
option other than the plea agreement” and requested that alternate
defense counsel (ADC) be appointed to represent Swenson. The
district court appointed ADC to review whether Swenson and his
plea counsel had a conflict based on ineffective assistance of
counsel in connection with the guilty plea. ADC determined there
was no conflict, and the court proceeded to sentencing. In
November 2016, the court sentenced Swenson to three consecutive
ten-year terms in DOC, consistent with the plea agreement.
¶4 The district court later granted Swenson’s Crim. P. 35(b)
motion and reduced his conspiracy sentence to six years.
1 ¶5 In August 2023, Swenson filed a Crim. P. 35(c) motion,
arguing that (1) his sentence was unconstitutionally
disproportionate in light of Wells-Yates v. People, 2019 CO 90M,
and recent amendments to the crime of violence sentence enhancer
statute, § 18-1.3-406, C.R.S. 20241; and (2) his counsel provided
ineffective assistance in connection with his guilty plea. For his
ineffective assistance claim, Swenson asserted that his counsel
advised him to reject a more favorable plea offer, failed to advise
him that he would be required to serve 75% of his sentence before
becoming eligible for parole, and “believed that his sentences were
mandated to run consecutively when in fact they were not.”
¶6 Swenson conceded that his motion was filed beyond the
limitations period in section 16-5-402(1), C.R.S. 2024, but he
argued that his motion fell within the statutory exception for
1 In 2016, the General Assembly amended section 18-1.3-406 to
allow courts to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes of violence, one of which is aggravated robbery. See Ch. 85, sec. 1, § 18-1.3-406(1)(c)(I), 2016 Colo. Sess. Laws 242. In 2023, the General Assembly again amended section 18-1.3-406 to allow a defendant to “petition the court for a modification of the sentences imposed if at least two calendar years but no more than five calendar years after the entry of final judgment of conviction or sentence have passed.” Ch. 297, sec. 1, § 18-1.3-406(1)(b), 2023 Colo. Sess. Laws 1779.
2 justifiable excuse or excusable neglect. As to his proportionality
claim, Swenson asserted that Wells-Yates announced a new rule of
constitutional law that applied retroactively and required the court
to consider the amendments to the crime of violence statute. As to
his ineffective assistance of counsel claims, Swenson again alleged
that his counsel had misadvised him about the consecutive nature
of his sentences and urged him to reject the prosecution’s alleged
initial offer. He also asserted that he had only recently discovered
that he would have to serve 75% of his sentence before becoming
eligible for parole. And he made general reference to the COVID-19
pandemic and the resulting closures of the prison law library.
¶7 The district court denied Swenson’s motion without a hearing.
It concluded that the motion was untimely and Swenson had failed
to allege facts showing justifiable excuse or excusable neglect.
II. Applicable Law and Standard of Review
¶8 A Crim. P. 35(c) motion must be filed within three years of a
defendant’s conviction for an offense other than a class 1 felony.
§ 16-5-402(1); Crim. P. 35(c)(3)(I). When, as in this case, the
defendant does not appeal, the conviction “occurs when the trial
court enters judgment and sentence is imposed.” People v. Collier,
3 151 P.3d 668, 671 (Colo. App. 2006). But 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).
¶9 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. To be entitled to a
hearing, a defendant is not required to provide evidentiary support
for their allegations but “must allege facts which, if true, would
entitle [them] to relief from the time bar.” Id. at ¶ 14. A Crim. P.
35(c) motion may be denied without a hearing when the motion,
files, and record clearly establish that the defendant’s allegations do
not warrant relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
III. Analysis
¶ 10 Swenson concedes that his motion was filed years after the
limitation period in section 16-5-402(1) had expired. His conviction
was final in November 2016, making his deadline for filing a Crim.
P. 35(c) motion November 2019. He filed his motion in 2023. But
Swenson contends that the district court erred by denying his
4 motion without a hearing because he alleged facts that, if true,
would show justifiable excuse or excusable neglect. We disagree.
A. Proportionality Claim
¶ 11 Swenson asserts that his proportionality claim is excused from
the time bar because Wells-Yates announced a new rule of
constitutional law that should be applied retroactively. See People
v. Rainer, 2013 COA 51, ¶ 29 (holding that a new rule of
substantive constitutional law can constitute justifiable excuse),
rev’d on other grounds, 2017 CO 50. But he does not specify what
purportedly new rule from Wells-Yates he seeks to rely on.
¶ 12 Regardless, after Swenson filed his opening brief, the supreme
court held that Wells-Yates does not apply retroactively to cases on
collateral review. McDonald v. People, 2024 CO 75, ¶ 34. To the
extent Swenson relies on Wells-Yates’s holding concerning the
nature of proportionality review generally, that holding is not a new
rule. Id. at ¶ 22. To the extent he relies on its holding that courts
may consider subsequent legislative amendments in conducting a
proportionality review, that rule (though new) is not substantive.
Id. at ¶ 34. Thus, because Wells-Yates’s holdings do not apply
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24CA0670 Peo v Swenson 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0670 Arapahoe County District Court No. 15CR185 Honorable Shay K. Whitaker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brandon Joseph Swenson,
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 February 27, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Brandon Joseph Swenson, Pro Se ¶1 Defendant, Brandon Joseph Swenson, appeals the district
court order denying his Crim. P. 35(c) motion. We affirm.
I. Background
¶2 Swenson pleaded guilty in 2016 to first degree burglary,
aggravated robbery, and conspiracy to commit aggravated robbery
for offenses he committed in 2015. He stipulated to consecutive
sentences of ten years in Department of Corrections (DOC) custody
on each count, with a total of sixty months of mandatory parole.
¶3 At sentencing, plea counsel urged the court to consider “an
option other than the plea agreement” and requested that alternate
defense counsel (ADC) be appointed to represent Swenson. The
district court appointed ADC to review whether Swenson and his
plea counsel had a conflict based on ineffective assistance of
counsel in connection with the guilty plea. ADC determined there
was no conflict, and the court proceeded to sentencing. In
November 2016, the court sentenced Swenson to three consecutive
ten-year terms in DOC, consistent with the plea agreement.
¶4 The district court later granted Swenson’s Crim. P. 35(b)
motion and reduced his conspiracy sentence to six years.
1 ¶5 In August 2023, Swenson filed a Crim. P. 35(c) motion,
arguing that (1) his sentence was unconstitutionally
disproportionate in light of Wells-Yates v. People, 2019 CO 90M,
and recent amendments to the crime of violence sentence enhancer
statute, § 18-1.3-406, C.R.S. 20241; and (2) his counsel provided
ineffective assistance in connection with his guilty plea. For his
ineffective assistance claim, Swenson asserted that his counsel
advised him to reject a more favorable plea offer, failed to advise
him that he would be required to serve 75% of his sentence before
becoming eligible for parole, and “believed that his sentences were
mandated to run consecutively when in fact they were not.”
¶6 Swenson conceded that his motion was filed beyond the
limitations period in section 16-5-402(1), C.R.S. 2024, but he
argued that his motion fell within the statutory exception for
1 In 2016, the General Assembly amended section 18-1.3-406 to
allow courts to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes of violence, one of which is aggravated robbery. See Ch. 85, sec. 1, § 18-1.3-406(1)(c)(I), 2016 Colo. Sess. Laws 242. In 2023, the General Assembly again amended section 18-1.3-406 to allow a defendant to “petition the court for a modification of the sentences imposed if at least two calendar years but no more than five calendar years after the entry of final judgment of conviction or sentence have passed.” Ch. 297, sec. 1, § 18-1.3-406(1)(b), 2023 Colo. Sess. Laws 1779.
2 justifiable excuse or excusable neglect. As to his proportionality
claim, Swenson asserted that Wells-Yates announced a new rule of
constitutional law that applied retroactively and required the court
to consider the amendments to the crime of violence statute. As to
his ineffective assistance of counsel claims, Swenson again alleged
that his counsel had misadvised him about the consecutive nature
of his sentences and urged him to reject the prosecution’s alleged
initial offer. He also asserted that he had only recently discovered
that he would have to serve 75% of his sentence before becoming
eligible for parole. And he made general reference to the COVID-19
pandemic and the resulting closures of the prison law library.
¶7 The district court denied Swenson’s motion without a hearing.
It concluded that the motion was untimely and Swenson had failed
to allege facts showing justifiable excuse or excusable neglect.
II. Applicable Law and Standard of Review
¶8 A Crim. P. 35(c) motion must be filed within three years of a
defendant’s conviction for an offense other than a class 1 felony.
§ 16-5-402(1); Crim. P. 35(c)(3)(I). When, as in this case, the
defendant does not appeal, the conviction “occurs when the trial
court enters judgment and sentence is imposed.” People v. Collier,
3 151 P.3d 668, 671 (Colo. App. 2006). But 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).
¶9 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. To be entitled to a
hearing, a defendant is not required to provide evidentiary support
for their allegations but “must allege facts which, if true, would
entitle [them] to relief from the time bar.” Id. at ¶ 14. A Crim. P.
35(c) motion may be denied without a hearing when the motion,
files, and record clearly establish that the defendant’s allegations do
not warrant relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
III. Analysis
¶ 10 Swenson concedes that his motion was filed years after the
limitation period in section 16-5-402(1) had expired. His conviction
was final in November 2016, making his deadline for filing a Crim.
P. 35(c) motion November 2019. He filed his motion in 2023. But
Swenson contends that the district court erred by denying his
4 motion without a hearing because he alleged facts that, if true,
would show justifiable excuse or excusable neglect. We disagree.
A. Proportionality Claim
¶ 11 Swenson asserts that his proportionality claim is excused from
the time bar because Wells-Yates announced a new rule of
constitutional law that should be applied retroactively. See People
v. Rainer, 2013 COA 51, ¶ 29 (holding that a new rule of
substantive constitutional law can constitute justifiable excuse),
rev’d on other grounds, 2017 CO 50. But he does not specify what
purportedly new rule from Wells-Yates he seeks to rely on.
¶ 12 Regardless, after Swenson filed his opening brief, the supreme
court held that Wells-Yates does not apply retroactively to cases on
collateral review. McDonald v. People, 2024 CO 75, ¶ 34. To the
extent Swenson relies on Wells-Yates’s holding concerning the
nature of proportionality review generally, that holding is not a new
rule. Id. at ¶ 22. To the extent he relies on its holding that courts
may consider subsequent legislative amendments in conducting a
proportionality review, that rule (though new) is not substantive.
Id. at ¶ 34. Thus, because Wells-Yates’s holdings do not apply
5 retroactively to Swenson’s conviction, they cannot establish
justifiable excuse or excusable neglect for his untimely claim.
¶ 13 To the extent Swenson otherwise argues that the 2016
amendment to the crime of violence statute — which gives courts
discretion to impose concurrent sentences under the circumstances
of this case — should have been applied directly to his case at
sentencing or that counsel was ineffective for not presenting it to
the district court, we note that the 2016 amendment applies only to
offenses committed on or after July 1, 2016. See Ch. 85, sec. 2,
§ 18-1.3-406(1)(c)(I), 2016 Colo. Sess. Laws 242. Because Swenson
committed the offenses in 2015, the amendment does not apply.
B. Ineffective Assistance Claims
¶ 14 Swenson next contends that he alleged justifiable excuse or
excusable neglect for his late-filed ineffective assistance of counsel
claim because he relied on his counsel’s erroneous advice regarding
his parole eligibility, the initial plea offer, and the mandatory
consecutive nature of his sentences. He relies on Close v. People,
180 P.3d 1015 (Colo. 2008), and People v. Valdez, 178 P.3d 1269
(Colo. App. 2007), for the proposition that ineffective assistance of
counsel can constitute justifiable excuse or excusable neglect.
6 ¶ 15 But Swenson’s reliance on Close and Valdez is misplaced.
Those cases addressed the ineffective assistance of postconviction
counsel in failing to timely file a postconviction motion or pursue a
particular postconviction claim. Close, 180 P.3d at 1019-22;
Valdez, 178 P.3d at 1279-80. In such a scenario, the ineffective
assistance of counsel prevents the defendant from pursuing the
claim. See Close, 180 P.3d at 1022. In contrast, the alleged
ineffectiveness of counsel during the plea and sentencing
proceedings could have had no bearing on Swenson’s delay in filing
his postconviction motion. Indeed, Swenson was indisputably
aware of — and raised — issues regarding the ineffectiveness of
counsel in connection with the plea at the time of sentencing.
¶ 16 To the extent Swenson asserts that he was unaware until
recently that he would be required to serve 75% of his sentence
before becoming eligible for parole, a defendant’s ignorance of the
law does not excuse the untimely filing of a postconviction motion.
See People v. McPherson, 53 P.3d 679, 682 (Colo. App. 2001) (noting
that a defendant’s “indigence, ignorance of the law, and lack of legal
counsel do not amount to justifiable excuse or excusable neglect for
an untimely filed collateral attack”); People v. Slusher, 43 P.3d 647,
7 651 (Colo. App. 2001) (“[R]ecent discovery of a legal basis for a
collateral attack on a conviction does not constitute excusable
neglect where the defendant has not otherwise demonstrated some
unavoidable hindrance that would cause a reasonably prudent
person to neglect to pursue timely collateral relief.”).
¶ 17 Finally, Swenson generally refers to the COVID-19 pandemic
and the resulting “lack of staff” as further reason for his untimely
filing. But the COVID-19 pandemic did not begin until several
months after Swenson’s November 2019 deadline for filing his Crim.
P. 35(c) motion. Thus, even if the pandemic had some impact on
his filing of the motion after March 2020 when the pandemic began,
it cannot provide justifiable excuse or excusable neglect for
Swenson’s failure to file the motion by the statutory deadline.
¶ 18 Because Swenson’s Crim. P. 35(c) motion was not filed within
three years of his conviction and did not allege facts sufficient to
establish justifiable excuse or excusable neglect for the late filing,
the district court correctly denied the motion without a hearing.
IV. Disposition
¶ 19 The order is affirmed.
JUDGE FREYRE and JUDGE SULLIVAN concur.