Background
Corey Malik Bernard pleaded guilty to second degree murder and conspiracy to commit aggravated robbery. On October 3, 2017, the El Paso County District Court sentenced him to consecutive prison terms of forty-three years and twelve years. Bernard did not file a direct appeal.
In August 2022, Bernard sought counsel to pursue postconviction relief. Appointed counsel filed a Crim. P. 35(c) motion in January 2024. The district court denied the motion without a hearing as untimely, rejecting Bernard’s claims that plea counsel had not told him about the three-year limitations period and that COVID-19-related restrictions prevented timely filing.
The Court’s Holding
The Colorado Court of Appeals affirmed. Because Bernard did not directly appeal, his conviction became final when sentence was imposed on October 3, 2017, and he had until October 3, 2020, to bring his collateral challenge. His 2022 request for counsel and 2024 Rule 35(c) motion were therefore untimely unless he adequately alleged a statutory exception.
Bernard did not sufficiently plead justifiable excuse or excusable neglect. The court held that counsel’s alleged failure to advise him about postconviction remedies or their filing deadline did not establish that exception. His COVID-19 allegations also failed because he did not account for the entire delay: he did not seek counsel until August 2022, and the motion did not explain why counsel then waited until 2024 to file it. With no adequately pleaded exception, Bernard was not entitled to an evidentiary hearing.
Key Takeaways
- A Rule 35(c) challenge to a non-class-1 felony conviction generally must be filed within three years after the conviction becomes final.
- A defendant invoking justifiable excuse or excusable neglect must account for the entire period of delay through the untimely filing.
- Failure to advise a defendant about postconviction deadlines, standing alone, does not establish the timeliness exception.
Why It Matters
The decision underscores the pleading burden for late Colorado postconviction motions. General allegations of pandemic restrictions or unfamiliarity with filing deadlines will not warrant a hearing unless they plausibly explain the full period of delay.