22CA1704 Peo v Vreeland 10-16-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1704 Douglas County District Court No. 04CR706 Honorable Patricia D. Herron, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Delmart Vreeland,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE SULLIVAN Welling and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 16, 2025
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff- Appellee
Brownstone P.A., George Thomas, Winter Park, Florida, for Defendant- Appellant ¶1 Defendant, Delmart Vreeland, appeals the postconviction
court’s order denying his most recent motion for postconviction
relief. We affirm.
I. Background
¶2 In 2004, Vreeland sexually assaulted two teenage boys after
promising to pay them in exchange for letting Vreeland photograph
them in their underwear. Vreeland also provided both boys with
cocaine and alcohol.
¶3 In 2006, a jury convicted Vreeland of two counts of
inducement of child prostitution, two counts of soliciting for child
prostitution, four counts of sexual exploitation of children, two
counts of sexual assault, two counts of contributing to the
delinquency of a minor, and one count of distribution of a
controlled substance. Vreeland appealed his convictions and a
division of this court affirmed. People v. Vreeland, (Colo. App. No.
08CA2468, Feb. 14, 2013) (not published pursuant to C.A.R. 35(f))
(Vreeland I).
¶4 In 2017, Vreeland filed his first postconviction petition, which
the postconviction court denied. Vreeland appealed the denial and
a division of this court affirmed. People v. Vreeland, (Colo. App. No.
1 17CA1648, Aug. 27, 2020) (not published pursuant to C.A.R. 35(e))
(Vreeland II).
¶5 In 2021, Vreeland filed a second postconviction petition under
Crim. P. 35(a) and 35(c), raising thirty-five separate claims. In a
detailed order, the postconviction court denied the petition without
a hearing. This most recent denial prompted this appeal.
¶6 We group Vreeland’s contentions in this appeal as follows:
(1) the trial court lacked jurisdiction over his case; (2) the
postconviction court erred by denying most of his postconviction
claims as either successive or time barred; (3) his attorneys in the
postconviction phase provided ineffective assistance of counsel;
(4) the postconviction court erred by denying his challenge to his
illegal sentence; and (5) courts on direct appeal and in the
postconviction phase have violated his right to due process by
enforcing word limits in briefs.
II. Standard of Review and Applicable Law
¶7 We review de novo a district court’s denial of a defendant’s
postconviction motion without a hearing. See People v. Joslin, 2018
COA 24, ¶ 5. To warrant a hearing on a Crim. P. 35(c) motion, a
defendant must allege facts that, if true, entitle the defendant to
2 postconviction relief. Id. at ¶ 4. A district court may deny a
defendant’s postconviction motion under Crim. P. 35(c) without an
evidentiary hearing only where the motion, files, and record in the
case clearly establish that the allegations presented in the motion
are without merit and don’t warrant postconviction relief. Ardolino
v. People, 69 P.3d 73, 77 (Colo. 2003).
¶8 Postconviction proceedings are designed to prevent injustices
after a defendant’s conviction and sentencing, not to provide a
perpetual right of review. People v. Hampton, 528 P.2d 1311, 1312
(Colo. 1974). As a result, a postconviction court must deny any
claim that the defendant presented and the court resolved in a
previous appeal or postconviction proceeding. Crim. P. 35(c)(3)(VI).
But there are exceptions. As relevant here, this bar on successive
claims doesn’t apply to claims “based on evidence that could not
have been discovered previously through the exercise of due
diligence.” Crim. P. 35(c)(3)(VI)(a).
¶9 A postconviction court must also deny any claim that the
defendant could have presented in a previous appeal or
postconviction proceeding, except, as relevant in this case, any
claim based on evidence that couldn’t have been discovered
3 previously through the exercise of due diligence; any claim over
which the sentencing court lacked subject matter jurisdiction; and
any claim where an objective factor, external to the defense and not
attributable to the defendant, made raising the claim impracticable.
See Crim. P. 35(c)(3)(VII)(b), (d), (e).
¶ 10 In addition, a court may correct a sentence imposed without
jurisdiction or not authorized by law “at any time.” Crim. P. 35(a).
III. Jurisdiction
¶ 11 We first address two of Vreeland’s claims that he characterizes
as “jurisdictional.” See Crim. P. 35(c)(2)(III), (c)(3)(VII)(d). Vreeland
contends that (1) the trial’s venue in Douglas County, Colorado,
was improper; and (2) defects in the charging information deprived
the trial court of jurisdiction.
A. Venue
¶ 12 In general, a criminal action must be tried in the county where
the offense was committed. § 18-1-202(1), C.R.S. 2025.
¶ 13 Before trial, Vreeland challenged whether Douglas County was
the proper venue for his trial. Although the trial court rejected his
challenge, he didn’t raise any venue argument in his direct appeal.
We therefore can’t address the merits of his venue argument at this
4 postconviction stage. See Crim. P. 35(c)(3)(VII). Contrary to
Vreeland’s argument, venue isn’t a jurisdictional issue that can be
raised at any time. See People v. Joseph, 920 P.2d 850, 851-52
(Colo. App. 1995).
¶ 14 Vreeland nonetheless asserts that he couldn’t raise venue in
his direct appeal because the relevant trial court records were
“hidden” from him. But even if that were true, Vreeland’s venue
argument fails for a different reason — it came too late. Absent a
showing of good cause, a defendant waives any challenge to venue
by failing to raise it in writing within twenty-one days of their
arraignment. § 18-1-202(11). Here, Vreeland was arraigned on
July 6, 2005. But he didn’t raise his venue challenge until seven
months later. Nor does he advance any good cause to excuse his
delay.
¶ 15 Accordingly, the postconviction court didn’t err by denying
Vreeland’s venue challenge.
B. Sufficiency of the Charging Information
¶ 16 Vreeland argues that the trial court lacked jurisdiction
because the charging information (1) didn’t contain sufficient
information regarding the time and location of his alleged offenses;
5 (2) failed to allege the required mental state for inducement of child
prostitution (counts one and two) and soliciting for child
prostitution (counts three and four); and (3) didn’t include victim
information for two of the counts alleging sexual exploitation of
children (counts seven and eight).
¶ 17 In a criminal case, a trial court’s jurisdiction is invoked by the
filing of a legally sufficient complaint, information, or indictment.
People v. Sims, 2019 COA 66, ¶ 15. A charging document is legally
sufficient if it identifies the essential elements of the crime charged
in the language of the statute. Id. at ¶ 16.
¶ 18 We conclude that the charging information in this case was
legally sufficient, thus providing the trial court with jurisdiction.
For each count, the information identified the essential elements of
the charged offense by generally tracking the language of the
relevant statute.
¶ 19 True, the information didn’t allege the specific time that
Vreeland committed each alleged offense. But the time of their
commission wasn’t an essential element. See People v. James, 40
P.3d 36, 48 (Colo. App. 2001), overruled in part on other grounds by,
McDonald v. People, 2021 CO 64. Moreover, the information did
6 identify a date range for each alleged offense, thus giving Vreeland a
fair and adequate opportunity to prepare his defense. See People v.
Madden, 111 P.3d 452, 456 (Colo. 2005).
¶ 20 The same is true regarding the place where Vreeland’s offenses
allegedly occurred. The county where an offense is alleged to have
occurred generally doesn’t constitute an element of the offense.
§ 18-1-202(11). But even if it did, the information alleged that each
of Vreeland’s offenses was “committed, or triable,” in Douglas
County.
¶ 21 We also reject Vreeland’s argument that the information failed
to allege the required mental state for counts one through four. The
information alleged in counts one through four that Vreeland acted
“feloniously.” At trial, the court instructed the jury that the
prosecution had to prove beyond a reasonable doubt that Vreeland
acted “knowingly” when committing counts one through four. The
word “feloniously” in a charging document is equivalent to
“knowingly.” People v. Trujillo, 731 P.2d 649, 651 (Colo. 1986).
Thus, the information adequately alleged the required mental state
that the prosecution had to prove at trial.
7 ¶ 22 Nor are we persuaded that the prosecution’s failure to identify
the specific child victims in counts seven and eight deprived the
trial court of jurisdiction over the sexual exploitation of children
charges. In counts seven and eight, the prosecution alleged that
Vreeland knowingly prepared, arranged for, published, produced,
promoted, made, sold, financed, offered, exhibited, advertised, dealt
in, or distributed “sexually exploitative material.” § 18-6-403(3)(b),
C.R.S. 2004. Under the applicable version of the statute, “sexually
exploitative material” means “any photograph, motion picture,
videotape, print, negative, slide, or other mechanically,
electronically, chemically, or digitally reproduced visual material
that depicts a child engaged in, participating in, observing, or being
used for explicit sexual conduct.” § 18-6-403(2)(j), C.R.S. 2004.
Thus, although the statute required the prosecution to prove that
the visual material depicted actual children, nothing demanded
“evidence of [the] child[ren]’s identification.” People v. Brown, 313
P.3d 608, 613 (Colo. App. 2011).
¶ 23 Accordingly, the postconviction court didn’t err by rejecting
Vreeland’s claims that he characterizes as jurisdictional.
8 IV. Successive Claims
¶ 24 The postconviction court determined that the bulk of
Vreeland’s remaining claims were procedurally barred. The People
defend the court’s conclusion under Crim. P. 35(c)(3)(VII), arguing
that Vreeland could have presented twenty-nine of his thirty-five
claims in a previous appeal or postconviction proceeding. Vreeland
disagrees, contending that (1) his claims rely on new evidence;
(2) an objective factor, external to the defense, made raising the
claims earlier impracticable; (3) his claims haven’t been “fully and
finally” resolved in a prior judicial proceeding; and (4) certain of his
claims asserted that the court imposed an illegal sentence, which
the court can correct at any time under Crim. P. 35(a).
A. Newly Discovered Evidence
¶ 25 Vreeland says the following, among other things, constitute
new evidence favorable to him: (1) thousands of minutes of recorded
telephone calls between himself and his counsel, revealing both his
counsel’s misconduct and the government’s violation of his right to
confidentiality with counsel; (2) a videotaped interview of a witness
supporting his assertion that no sexual contact occurred in the
home; and (3) evidence that government investigators violated a
9 sequestration order and withheld exculpatory material by speaking
to witnesses during trial and failing to disclose that an investigator
was seen with a witness.
¶ 26 We conclude Vreeland’s asserted new evidence didn’t push his
claims within Crim. P. 35(c)(3)(VII)(b)’s safe harbor for newly
discovered evidence. As to the recorded phone calls and interview
tape, Vreeland acknowledged in his petition that both were available
either before or during trial.1 The postconviction court similarly
concluded that recorded calls were available to Vreeland before
trial. Thus, the recorded calls and interview tape didn’t constitute
1 Vreeland’s postconviction counsel partially backtracked in a
supplement to the petition, saying that some of the recorded calls (those recorded while Vreeland was temporarily jailed in Iowa) were sealed and inaccessible before trial. But counsel acknowledged receiving even those recordings more than a year before the postconviction court denied Vreeland’s petition. The postconviction court explained that, despite having the recordings for that period, Vreeland failed to provide “a scintilla of support” for his claim. On appeal, too, Vreeland fails to point us to any specific recording in the record that supports his claims. Like the division in People v. Vreeland, ¶ 31 n.2 (Colo. App. No. 17CA1648, Aug. 27, 2020) (not published pursuant to C.A.R. 35(e)) (Vreeland II), we decline to scour the record to determine if any of the thousands of recorded calls support Vreeland’s claims. See also People v. Gutierrez-Vite, 2014 COA 159, ¶ 28 (“We will not play archaeologist with the record.”).
10 new evidence that “could not have been discovered previously.”
Crim. P. 35(c)(3)(VII)(b).
¶ 27 In addition, the division in Vreeland II previously addressed
Vreeland’s contention that the recorded calls established his
attorneys’ blameworthiness, rendering this portion of his claim
successive under Crim. P. 35(c)(3)(VI). See Vreeland II, ¶¶ 30-32.
¶ 28 Turning to the government’s alleged violation of a
sequestration order and withholding of exculpatory evidence,
Vreeland didn’t allege sufficient facts to show that he couldn’t have
discovered these alleged violations earlier through the exercise of
due diligence. Crim. P. 35(c)(3)(VII)(b). Moreover, in resolving
Vreeland’s first postconviction motion, the postconviction court
rejected Vreeland’s allegations that a government investigator had
inappropriate relationships with witnesses in this case, again
rendering this portion of his claim successive under Crim. P.
35(c)(3)(VI).
¶ 29 Vreeland’s remaining allegations of new evidence are
undeveloped. In his opening brief, Vreeland mentions briefly that a
camera allegedly fell out of the chain of custody, that a victim
allegedly lied about his grandfather’s suicide, and that the mother
11 of one of the victims allegedly would have provided “impeachment
evidence.” He also asserts that unspecified “new evidence”
supported claims one through ten and twenty-nine in his petition.
But Vreeland doesn’t develop these arguments, much less explain
why such evidence couldn’t have been discovered earlier through
the exercise of due diligence. We therefore decline to address
Vreeland’s conclusory arguments. See People v. Romero, 2015 COA
7, ¶ 53 (declining to address a Crim. P. 35(c) argument that the
defendant presented in a perfunctory and conclusory manner).
B. Objective Factor External to the Defense
¶ 30 We similarly conclude that Vreeland’s “objective factor”
argument under Crim. P. 35(c)(3)(VII)(e) is undeveloped. Without
citing supporting case law, Vreeland devotes just two sentences in
his opening brief to this argument. Thus, we decline to address it.
See Romero, ¶ 53.
C. Fully and Finally Adjudicated Claims
¶ 31 Relying on People v. Diaz, 985 P.2d 83, 85 (Colo. App. 1999),
Vreeland argues that the postconviction court should have
addressed the merits of his claims that a prior court hadn’t yet
“fully and finally” resolved. But Diaz predates the supreme court’s
12 2004 adoption of Crim. P. 35(c)(3)(VII). See Rule Change 2004(02),
Colorado Rules of Criminal Procedure (Amended and Adopted by
the Court En Banc, Jan. 29, 2004), https://perma.cc/3TUK-PLAX.
As discussed above, the current rule bars not only claims that the
defendant actually raised in a prior appeal or postconviction
proceeding but also claims that the defendant could have raised.
See People v. Taylor, 2018 COA 175, ¶¶ 13-20 (discussing the 2004
adoption of Crim. P. 35(c)(3)(VII) and rejecting the defendant’s
reliance on pre-2004 case law construing the prior version of the
rule).
¶ 32 Accordingly, because the Diaz division applied a version of
Crim. P. 35 that is no longer in effect, Vreeland’s reliance on its
analysis is misplaced.
D. Illegal Sentence Claims
¶ 33 Sentences that are inconsistent with the statutory scheme
outlined by the General Assembly are illegal and may be corrected
at any time. Crim. P. 35(a); People v. Jenkins, 2013 COA 76, ¶ 11.
By contrast, Crim. P. 35(c)(3) authorizes postconviction challenges
to the “judgment of conviction” itself. Constitutional challenges to a
defendant’s conviction or sentence are also governed by
13 Crim. P. 35(c). People v. Collier, 151 P.3d 668, 670 (Colo. App.
2006). The substance of the postconviction motion controls
whether it falls under Crim. P. 35(a) or 35(c), not the label placed on
it. See id.
¶ 34 With the exception of Vreeland’s claim involving count nine,
which we discuss below, we agree with the People that none of
Vreeland’s postconviction claims constitutes an illegal sentence
claim under Crim. P. 35(a). While Vreeland attempts to
characterize several of his claims as illegal sentence claims —
including his challenges to the constitutionality of his convictions
and sentence, the sufficiency of the evidence and charging
information underlying the habitual criminal charges, and the
evidence admitted at the habitual criminal hearing — those claims
don’t allege that Vreeland’s sentence is inconsistent with the
General Assembly’s statutory scheme. Instead, the claims, at most,
allege that these errors led to a sentence that is inconsistent with
the statutory scheme. The same can be said of all postconviction
claims. As a result, these claims don’t fall under Crim. P. 35(a) and
aren’t exempt from the bar on successive postconviction claims.
14 V. Ineffective Assistance of Postconviction Counsel
¶ 35 Vreeland next contends that the postconviction court erred by
denying his claim that the private attorney who represented him in
his first postconviction appeal (first postconviction counsel)
provided ineffective assistance of counsel. Vreeland also argues
that, to the extent we reject his contention that new evidence
requires reversal of the postconviction court’s summary denial of
his second postconviction petition, the attorney who represented
him on his second postconviction petition (second postconviction
counsel) provided ineffective assistance of counsel.
A. Applicable Law and Standard of Review
¶ 36 A criminal defendant has a constitutional right to the effective
assistance of counsel in their defense. People v. Rainey, 2023 CO
14, ¶ 1. But this constitutional right doesn’t apply during the
postconviction phase. Silva v. People, 156 P.3d 1164, 1167 (Colo.
2007). Instead, a criminal defendant in Colorado has a limited
statutory right to counsel in postconviction proceedings. Id. at
1168.
¶ 37 Like an ineffective assistance of trial counsel claim, to prevail
on an ineffective assistance of postconviction counsel claim, the
15 defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced their defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Silva,
156 P.3d at 1169 (Strickland applies to ineffective assistance of
postconviction counsel claims). Prejudice in this context means
that the defendant has shown a reasonable probability that, but for
postconviction counsel’s unprofessional errors, the outcome of the
proceeding would have been different. Strickland, 466 U.S. at 694.
A defendant must establish both prongs under Strickland to
succeed on their ineffective assistance of postconviction counsel
claim. People v. Garcia, 815 P.2d 937, 941 (Colo. 1991).
¶ 38 Ineffective assistance of postconviction counsel claims present
a mixed question of law and fact. People v. Corson, 2016 CO 33,
¶ 25. We review the postconviction court’s legal conclusions de
novo but defer to the court’s factual findings if they are supported
by the record. Id.
B. Analysis
¶ 39 At the outset, we address two threshold issues.
¶ 40 First, Vreeland understandably didn’t challenge the
effectiveness of his second postconviction counsel below. See
16 People v. Kelling, 151 P.3d 650, 657 (Colo. App. 2006) (defense
counsel “could not be expected to litigate his own ineffectiveness”).
Because that particular claim of ineffective assistance of
postconviction counsel hasn’t yet been presented to the
postconviction court, we will not consider it in the first instance.
See People v. Cali, 2020 CO 20, ¶¶ 33-36.
¶ 41 Second, the People argue that the limited statutory right to
postconviction counsel in Colorado doesn’t guarantee those
defendants who retain private postconviction counsel the
corresponding right to effective assistance of counsel under
Strickland. Cf. Silva, 156 P.3d at 1171 (Coats, J., dissenting) (“It is
unclear to me whether the majority’s rationale contemplates a right
to constitutionally effective assistance only for indigent defendants,
or if it would extend the same right to non-indigent defendants who
hire their own counsel for post-conviction proceedings, even without
a corresponding statutory right to counsel.”). We need not decide
whether Vreeland was entitled to effective assistance from his first
postconviction counsel because, even if he was, Vreeland’s claim of
ineffectiveness fails on its merits.
17 ¶ 42 Turning to those merits, Vreeland argues that his first
postconviction counsel provided ineffective assistance by advising
him that counsel couldn’t complete the opening brief a mere seven
days before it was due, forcing Vreeland to complete the brief on his
own. According to Vreeland, counsel then advised this court that
he would prepare a reply brief to “cure any defects” in the opening
brief but then failed to do so, requiring Vreeland to find a new
lawyer to complete the reply brief. The Vreeland II division
ultimately rejected Vreeland’s contentions of error.
¶ 43 Even if we assume that first postconviction counsel’s
performance was deficient, Vreeland hasn’t shown prejudice. To
prove prejudice, Vreeland needed to show a reasonable probability
that, but for his private counsel’s failure to file a merits brief, he
would have prevailed on appeal. See Smith v. Robbins, 528 U.S.
259, 285 (2000). But Vreeland’s second petition for postconviction
relief didn’t identify any potential appellate issues that his first
postconviction counsel should have raised in lieu of, or in addition
to, the issues that Vreeland raised on his own. Nor did he explain
how such issues were stronger or had a better chance of prevailing
18 than the issues he was able to raise.2 See People v. Trujillo, 169
P.3d 235, 238-39 (Colo. App. 2007). In the absence of such
allegations, the postconviction court didn’t err by denying
Vreeland’s ineffective assistance of counsel claim without a hearing.
See id.; see also People v. Villanueva, 2016 COA 70, ¶ 68 (A
“conclusory allegation is insufficient to establish prejudice under
Strickland.”).
¶ 44 Accordingly, the postconviction court didn’t err by rejecting
Vreeland’s ineffective assistance of counsel claim.
VI. Vreeland’s Sentence
¶ 45 Vreeland next contends that the postconviction court erred by
denying his challenge to his illegal sentence. His argument is two-
fold: (1) the sentence on one of his sexual assault convictions (count
nine) should have run consecutively to the sentences on his other
convictions under section 18-1.3-1004(5)(a), C.R.S. 2025;3 and
2 Vreeland suggests that “prejudice can be presumed,” but he
devotes only one sentence of his opening brief to this argument and cites no supporting case law. We decline to address this undeveloped contention. See People v. Romero, 2015 COA 7, ¶ 53. 3 Vreeland acknowledges in his opening brief that his argument on
this issue may result in a longer sentence, explaining that “[e]ven if a longer sentence results, it does not change the fact that [he] is suffering from an illegal sentence.”
19 (2) the trial court failed to exercise judicial discretion when it
declined to impose concurrent sentences on the subset of
convictions related to each of the two victims, with the two
“batches” of sentences running consecutively.
A. Additional Background
¶ 46 In October 2008, the trial court sentenced Vreeland to an
indeterminate sentence of twenty-four years to life on count nine
under the Colorado Sex Offender Lifetime Supervision Act of 1998
(SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2025, and to an aggregate
336-year sentence on the other counts. The court’s indeterminate
sentence on count nine ran concurrently with the sentences on the
other counts. The 336-year sentence included 48 years each on
counts one through six and count ten, all running consecutively to
one another. Vreeland’s determinate sentences on the remaining
counts ran concurrently to the 336-year sentence.
¶ 47 In June 2025, while this appeal was pending in our court, the
postconviction court purported to alter Vreeland’s sentence on
count nine so that it ran consecutively, rather than concurrently, to
his related conviction on count eight for sexual exploitation of
children. The court said it was entering its amended sentence
20 “pursuant to” section 18-1.3-1004(5)(a). The court also
characterized its amended sentence as a “clerical” correction of the
mittimus under Crim. P. 36.
B. Count Nine
¶ 48 We first address whether the postconviction court possessed
jurisdiction in June 2025 to amend Vreeland’s sentence on count
nine while his appeal was pending in this court. See People v.
S.X.G., 2012 CO 5, ¶ 9 (appellate court may raise jurisdictional
defects sua sponte). We conclude that it didn’t. After a party has
perfected an appeal of a final judgment, the trial court lacks
jurisdiction to entertain any motion for an order affecting the
judgment. People v. Dist. Ct., 638 P.2d 65, 66 (Colo. 1981); see also
Molitor v. Anderson, 795 P.2d 266, 269 (Colo. 1990) (“[T]he filing of a
notice of appeal divests a trial court of authority to consider matters
of substance affecting directly the judgment appealed from.”). A
defendant’s sentence is part of the judgment of conviction. Crim. P.
32(b)(3).
¶ 49 In this appeal, Vreeland challenged multiple aspects of his
sentence, including whether the sentence on count nine should run
concurrently with or consecutively to his sentences on the other
21 counts. Given the scope of his challenge, Vreeland’s notice of
appeal, filed well before the postconviction court’s June 2025 order,
divested the court of jurisdiction to consider matters directly
affecting his sentence. See Molitor, 795 P.2d at 269. As a result,
the portion of the June 2025 order amending Vreeland’s sentence
on count nine is void. See People v. Jones, 631 P.2d 1132, 1133
(Colo. 1981).
¶ 50 The postconviction court’s characterization of the amendment
as a “clerical” correction under Crim. P. 36 doesn’t change our
conclusion. Crim. P. 36 doesn’t allow a trial court to amend a
sentence itself; rather, the rule permits the court to make
“perfunctory changes” so that the judgment conforms to the
sentence actually imposed. People v. Wood, 2019 CO 7, ¶ 39
(quoting People v. Emeson, 500 P.2d 368, 369 (Colo. 1972)).
¶ 51 Here, the trial court’s original sentence on count nine ran
concurrently with Vreeland’s sentences on the other counts.
Attempting to alter the sentence on count nine so that it now runs
consecutively to the other sentences doesn’t constitute a mere
perfunctory change, so Crim. P. 36 doesn’t apply. See id.
22 ¶ 52 As to the merits of Vreeland’s sentencing contentions, the
People agree with Vreeland’s first sentencing argument in part.
They assert that section 18-1.3-1004(5)(a) required the trial court to
impose a sentence on count nine that ran consecutively to
Vreeland’s related conviction on count eight for sexual exploitation
of children, reasoning that those two offenses arose from the same
incident. The People disagree, however, that Vreeland’s
indeterminate sentence on count nine must run consecutively to his
remaining sentences.
¶ 53 A sentencing court ordinarily has discretion to impose either
concurrent or consecutive sentences when the defendant is
convicted of multiple offenses. Juhl v. People, 172 P.3d 896, 899
(Colo. 2007). But under section 18-1.3-1004(5)(a), which has
remained unchanged since Vreeland’s offenses, the trial court must
impose consecutive sentences in SOLSA cases involving multiple
convictions arising from the “same incident” if the court imposes an
indeterminate prison sentence for the sex offense.
¶ 54 We decline to disturb the trial court’s sentence on count nine.
Vreeland doesn’t point us to any portions of the record establishing
that his conduct underlying count nine and the remaining counts
23 occurred as part of a single incident. See C.A.R. 28(a)(7)(B)
(appellant’s opening brief must contain “citations to the authorities
and parts of the record on which the appellant relies”).
¶ 55 While the People come closer on the narrower question of
whether Vreeland’s conduct underlying counts eight and nine
occurred as part of a single incident, their supporting record
citations also don’t show an illegal sentence. Instead of pointing us
to evidence introduced at trial, the People rely on the prosecution’s
closing argument, the charging information, pretrial pleadings, and
statements supporting law enforcement’s request for an arrest
warrant. Absent “affirmative evidence” showing otherwise, we
presume that the trial court didn’t err when imposing sentence.
LePage v. People, 2014 CO 13, ¶ 15; cf. Juhl, 172 P.3d at 900
(explaining, in the identical-evidence context, that the “mere
possibility” that identical evidence may support two convictions
isn’t sufficient to remove the trial court’s sentencing discretion; the
evidence must support “no other reasonable inference than that the
convictions were based on identical evidence”).
¶ 56 Accordingly, we discern no basis for disturbing the trial court’s
original sentence on count nine.
24 C. Judicial Discretion at Sentencing
¶ 57 Vreeland’s contention that the trial court failed to exercise
appropriate discretion at sentencing to impose concurrent
sentences on all convictions corresponding to a single victim
constitutes an illegal manner claim under Crim. P. 35(a). See
People v. Swainson, 674 P.2d 984, 986 (Colo. App. 1983), rev’d on
other grounds, 713 P.2d 479, 480 (Colo. 1986).
¶ 58 An illegal manner claim must be filed “within the time
provided [in Crim. P. 35(b)] for the reduction of sentence.”
Crim. P. 35(a). Where, as here, the defendant filed a direct appeal
of the judgment, they must file their illegal manner claim “within
126 days (18 weeks) after entry of any order or judgment of the
appellate court denying review or having the effect of upholding a
judgment of conviction or sentence.” Crim. P. 35(b)(3).
¶ 59 The division in Vreeland I issued its mandate affirming
Vreeland’s convictions on January 28, 2014. But Vreeland didn’t
file his illegal manner claim until March 4, 2021, more than seven
years later. Accordingly, Vreeland’s illegal manner claim is
untimely.
25 VII. Word Limitations
¶ 60 Finally, Vreeland contends that his right to due process has
been violated because courts on direct appeal and during the
postconviction phase have enforced word limits in briefs (including
in this appeal), requiring that he abandon certain arguments.
¶ 61 To the extent Vreeland challenges word limits imposed in
either Vreeland I or Vreeland II, those claims either were brought or
could have been brought in those proceedings. See Vreeland II,
¶ 36. They are therefore barred as successive. Crim. P. 35(c)(3)(VI),
(VII).
¶ 62 To the extent Vreeland challenges restrictions imposed by the
postconviction court related to his most recent petition for
postconviction relief, he fails to identify those restrictions with
specificity, so we don’t address them. See Romero, ¶ 53.
¶ 63 We also aren’t convinced that Vreeland was denied a fair
opportunity to present his contentions of error in this appeal. See
People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003)
(“Procedural due process . . . requires notice and a fair opportunity
to be heard.”). Although this court denied Vreeland leave to file an
oversized 12,708-word opening brief, he doesn’t identify any specific
26 argument that he was forced to abandon as a result. See C.A.R.
28(g) (an opening brief is limited to 9,500 words).
¶ 64 Moreover, having reviewed Vreeland’s briefs in detail, we
conclude that certain portions could have been “editorially revised
to a more concise form without any loss, and probably with
significant gain, in impact.” People v. Galimanis, 728 P.2d 761, 763
(Colo. App. 1986); see also Watts v. Thompson, 116 F.3d 220, 224
(7th Cir. 1997) (appellate court’s enforcement of page limits is a
“rather ordinary practice” and didn’t amount to a due process
violation).
¶ 65 Accordingly, we perceive no due process violation.
VIII. Disposition
¶ 66 We affirm the order.
JUDGE WELLING and JUDGE GOMEZ concur.