Peo v. Vasquez

• Court: Colorado Court of Appeals
• Decided: August 21, 2025
• Docket: 24CA1504
• Status: Unpublished

Opinion

24CA1504 Peo v Vasquez 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1504 Arapahoe County District Court No. 15CR2375 Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Vasquez,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE GOMEZ Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025

Philip J. Weiser, Attorney General, Cata Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Brian Vasquez, Pro Se ¶1 Defendant, Brian Vasquez, appeals the postconviction court’s

order denying his Crim. P. 35(c) motion. We affirm.

¶2 After being charged with thirty-seven sex-related crimes

against five children, Vasquez pleaded guilty to six felonies and

agreed to an aggregate sentence of forty years to life in the custody

of the Department of Corrections (DOC). In 2018, the district court

imposed the agreed-upon sentence. Vasquez did not appeal.

¶3 In 2024, Vasquez filed the Crim. P. 35(c) motion at issue here,

asserting that he received ineffective assistance of counsel during

the plea process. Specifically, he alleged that defense counsel’s

performance was deficient because counsel had (1) misadvised him

that he would be eligible for parole in fifteen years, when the law

actually requires that he serve seventy-five percent of his

indeterminate sentence before becoming eligible for parole; and

(2) failed to seek a waiver of surcharges, fees, and costs, even

though Vasquez was indigent. The postconviction court summarily

denied the motion as untimely, concluding that Vasquez had failed

to allege facts that would entitle him to a hearing on whether he

had asserted a valid exception to the three-year time bar. We agree

with the postconviction court.

1 ¶4 A timely Crim. P. 35(c) motion must be filed within three years

of a defendant’s conviction for a non-class 1 felony offense. See

§ 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). When, as in this

case, the defendant doesn’t directly appeal, the conviction “occurs

when the trial court enters judgment and sentence is imposed.”

People v. Collier, 151 P.3d 668, 671 (Colo. App. 2006). Because

Vasquez filed his postconviction motion nearly six years after his

conviction, it is time barred unless, as relevant here, 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). It is the defendant’s burden to allege

facts that, if proven, would establish justifiable excuse or excusable

neglect. People v. Abad, 962 P.2d 290, 291 (Colo. App. 1997).

¶5 Vasquez alleged that he failed to timely seek relief because he

first learned of his parole eligibility date (PED) in 2024, when his

case manager incidentally shared that information. We review

de novo whether this fact, if true, could constitute justifiable excuse

2 or excusable neglect for Vasquez’s untimely filing. See People v.

Hinojos, 2019 CO 60, ¶ 12.1

¶6 We agree with the postconviction court that Vasquez’s failure

to ascertain his PED before 2024 does not excuse his late filing.

Recent discovery of a legal basis for a collateral attack doesn’t

constitute excusable neglect, absent “some unavoidable hindrance

that would cause a reasonably prudent person to neglect” pursuit of

collateral relief. People v. Slusher, 43 P.3d 647, 651 (Colo. App.

2001); see also People v. McPherson, 53 P.3d 679, 682 (Colo. App.

2001) (“[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.”). Vasquez didn’t

allege that any unavoidable hindrance prevented knowledge of his

PED. Moreover, as recognized by the postconviction court, such

knowledge is readily available by various means, including by

1 Vasquez alleges additional facts in his opening brief, but we don’t

address those allegations because they weren’t presented to the postconviction court. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.”); see also People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996) (rejecting a defendant’s attempt to “fortify” some of his postconviction claims by further developing them on appeal).

3 anyone accessing the DOC’s public inmate locator database, which

shows inmates’ estimated PEDs. See People in Interest of T.M., 240

P.3d 542, 545 n.1 (Colo. App. 2010) (taking judicial notice of

information contained in the DOC’s database).

¶7 Because Vasquez’s Crim. P. 35(c) motion wasn’t filed within

three years of his conviction and didn’t allege sufficient facts that, if

true, could constitute justifiable excuse or excusable neglect for his

late filing, we conclude that the postconviction court properly

denied the motion without a hearing. See People v. White, 981 P.2d

624, 626 (Colo. App. 1998).

¶8 The order is affirmed.

JUDGE FREYRE and JUDGE MEIRINK concur.