Background
In 2014, a jury convicted Jerome C. Gilbert of second-degree burglary, first-degree criminal trespassing, and theft. The trial court adjudicated him a habitual criminal based on five habitual criminal counts and sentenced him to 48 years in the Colorado Department of Corrections. On direct appeal in 2017, a division of the Colorado Court of Appeals affirmed, holding that his sentence was not constitutionally disproportionate.
Gilbert subsequently filed postconviction motions in 2018 and 2022. The 2018 motion was denied by the postconviction court, and Gilbert appealed that denial; a division of the Court of Appeals affirmed in 2021. In 2024, six years after the direct appeal concluded, Gilbert filed another postconviction motion labeled as a Criminal Procedure Rule 35(a) motion to correct an illegal sentence.
In the 2024 motion, Gilbert raised three constitutional claims: (1) his habitual criminal sentences are unconstitutional because his prior convictions stemmed from juvenile offenses; (2) he did not receive required Criminal Procedure Rule 11 advisements before entering guilty pleas in the prior conviction cases, making those pleas involuntary; and (3) one prior conviction for possession of a schedule II controlled substance is no longer a felony under current Colorado law. The postconviction court summarily denied the motion, and Gilbert appealed.
The Court’s Holding
The Court of Appeals affirmed the postconviction court’s denial. The court held that Gilbert’s claims were properly characterized as Criminal Procedure Rule 35(c) constitutional claims, not Rule 35(a) illegal sentence claims, because they challenged his convictions and sentences on constitutional grounds. The substance of a postconviction motion, not its label, determines the applicable procedural route.
The court then applied the procedural bars in Rule 35(c). Gilbert’s claims were barred as successive because he raised them or could have raised them in his 2018 postconviction motion. Additionally, the claims were time-barred under Colorado Revised Statutes § 16-5-402(1), (1.5), because Gilbert filed his 2024 motion seven years after his convictions and sentences became final in 2017, well outside the applicable limitations period.
The court declined to consider Gilbert’s new argument based on Erlinger v. United States, 602 U.S. 821 (2024), because he raised it for the first time on appeal without presenting it to the postconviction court. Colorado appellate procedure requires that constitutional issues be raised in the postconviction motion or hearing, or they are not preserved for appeal. The court also noted that any other claims Gilbert raised in the postconviction motion but did not re-raise on appeal were deemed abandoned.
Key Takeaways
- Postconviction motions are characterized by their substance, not their procedural label; constitutional challenges are properly brought under Criminal Procedure Rule 35(c) regardless of how a defendant frames them.
- Constitutional claims in postconviction motions are subject to the successive motion bar under Rule 35(c)(3)(VI) and (VII)—a defendant generally cannot raise claims that were or could have been raised in prior postconviction motions.
- Postconviction motions are subject to strict time limitations; claims filed well after convictions become final will be time-barred regardless of the substance of the claims.
- New constitutional arguments based on subsequent appellate precedent must be presented to the postconviction court or they will not be considered on appeal.
Why It Matters
This decision reinforces Colorado’s strict procedural requirements for postconviction relief and establishes that defendants cannot circumvent the time-bar and successive-motion rules by relabeling constitutional claims as illegal sentence challenges. For habitual criminal sentences in particular, the decision makes clear that constitutional challenges to the predicate prior convictions—whether based on juvenile adjudications, procedural defects, or changed sentencing law—must be raised within the statutory limitations period, not years later in successive filings.
The ruling also clarifies that while new constitutional arguments may emerge from intervening Supreme Court precedent (like Erlinger), they still must be raised properly in the postconviction process. Parties cannot bypass the postconviction court and introduce new theories on appeal. This maintains finality in criminal judgments and prevents an endless cycle of successive postconviction motions.