Peo v. Tolentino

• Court: Colorado Court of Appeals
• Decided: February 20, 2025
• Docket: 23CA2217
• Status: Unpublished

Opinion

23CA2217 Peo v Tolentino 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2217 El Paso County District Court No. 17CR6967 Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose M. Tolentino,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jose M. Tolentino, Pro Se ¶1 Defendant, Jose M. Tolentino, appeals the postconviction

court’s denial without a hearing of his request for postconviction

relief under Crim. P. 35(c). We affirm.

I. Background

¶2 Tolentino lived in an apartment above the victim, an at-risk

juvenile. Tolentino engaged in sexual acts with the victim when the

victim was eleven through sixteen years old. Further investigation

revealed an additional victim.

¶3 Tolentino was charged with one count of sexual assault on a

child, two counts of sexual assault on a child -at-risk juvenile, three

counts of sexual assault on a child - pattern of abuse, four of

counts of sexual assault on a child by one in a position of trust, one

count of sexual assault on a child by one in a position of trust -

at-risk juvenile, and one count of aggravated sex offense.

¶4 Pursuant to a plea agreement, Tolentino pleaded guilty to one

count of sexual assault on a child - pattern of abuse as to each

victim and stipulated to a sentence of twenty-five years to life in the

custody of the Department of Corrections. In November 2018, the

1 district court sentenced Tolentino consistent with the plea

agreement.

¶5 In July 2023, Tolentino filed a pro se Crim. P. 35(c) motion

alleging the ineffective assistance of plea counsel and the discovery

of new evidence. Tolentino contended that plea counsel did not

adequately investigate his medical history, specifically, his diabetes

and diabetes-related hospitalization. He further argued that plea

counsel failed to advise him concerning the defense of involuntary

intoxication caused by insulin-induced hypoglycemia, which was

found to constitute involuntary intoxication in People v. Garcia, 113

P.3d 775, 783 (Colo. 2005).

¶6 The postconviction court denied Tolentino’s motion. The

postconviction court first found that Tolentino’s motion was time

barred and not justified by excusable neglect or justifiable excuse.

Alternatively, the postconviction court found that Tolentino’s claims

failed on the merits.

¶7 On appeal, Tolentino contends that the postconviction court

erred by denying his claims. He also argues, for the first time, that

2 the Colorado Sex Offender Lifetime Supervision Act of 1998 is

unconstitutional.

II. Tolentino’s Claims Are Time Barred

¶8 We review de novo a postconviction court’s denial of a Crim. P.

35(c) motion without an evidentiary hearing. People v. Nozolino,

2023 COA 39, ¶ 7. We also review de novo whether a Crim. P. 35(c)

motion is time barred. People v. Bonan, 2014 COA 156, ¶ 16.

¶9 Generally, a Crim. P. 35(c) claim challenging a non-class 1

felony conviction must be filed within three years of the date the

defendant’s conviction became final. § 16-5-402(1), C.R.S. 2024.

Any motion filed outside the limitations period must allege facts

that, if true, would establish one of the exceptions to the time bar in

section 16-5-402(2). Those exceptions include the following:

(a) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the subject matter of the alleged offense;

(b) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the person of the defendant or juvenile;

(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within 3 the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant or juvenile to an institution for treatment as a person with a mental health disorder; or

(d) Where the court hearing the collateral attack finds that the 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).

¶ 10 Tolentino pleaded guilty and was sentenced on November 13,

2018, the date judgment entered. Because he did not directly

appeal his conviction, the judgment became final that day, and the

time for filing a postconviction motion began running. See People v.

Collier, 151 P.3d 668, 671 (Colo. App. 2006). Accordingly, the last

day Tolentino could have filed a timely postconviction motion was

November 13, 2021. But he waited until July 2023 to file his

motion. Moreover, he failed to allege facts that, if true, would

establish one of the enumerated exceptions to the time bar

limitation. Accordingly, we conclude Tolentino’s motion was time

barred.

¶ 11 Additionally, we reject Tolentino’s argument that his medical

history constitutes new evidence. By his own admission in the 4 opening brief, Tolentino’s diabetes and related care were previously

disclosed to the district court and to plea counsel.

III. Colorado Sex Offender Lifetime Supervision Act

¶ 12 Tolentino next contends that the Colorado Sex Offender

Lifetime Supervision Act is unconstitutional because it violates

(1) the privilege against self-incrimination by extending the length of

incarceration if Tolentino refuses to disclose other potentially

criminal behavior; (2) procedural and substantive due process by

attaching a presumption of dangerousness and likelihood of

recidivism to all convicted sex offenders; and (3) the separation of

powers doctrine. Claims that the Lifetime Supervision Act is

unconstitutional have been rejected by several divisions of this

court, including on each of the grounds alleged by Tolentino. See

People v. Torrez, 2013 COA 37, ¶ 88; People v. Dash, 104 P.3d 286,

290-93 (Colo. App. 2004) (Lifetime Supervision Act does not violate

the procedural or substantive prongs of the Due Process Clause, the

Equal Protection Clause, the Eighth Amendment’s prohibition of

cruel or unusual punishment, or the doctrine of separation of

powers); People v. Strean, 74 P.3d 387, 393-95 (Colo. App. 2002)

5 (Lifetime Supervision Act does not violate the procedural or

substantive prongs of the Due Process Clause, the Equal Protection

Clause, or the doctrine of separation of powers). We agree with

those divisions and reject Tolentino’s argument.

IV. Disposition

¶ 13 The order is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.