Background
Donny Anthony Lopez pleaded guilty in 2012 to aggravated robbery and second degree murder as a crime of violence after a fight ended in a fatal shooting. The district court imposed an aggregate 64-year prison sentence, and Lopez did not directly appeal.
In October 2024, Lopez sought to rescind his plea agreement, claiming he had been coerced into a plea that lacked a factual basis. After the court returned that filing for failure to comply with the required postconviction form, Lopez filed a Rule 35(c) motion in January 2025 raising 34 claims, including ineffective assistance, prosecutorial misconduct, and judicial error.
Lopez acknowledged that the motion came outside Colorado’s three-year limitations period. He asserted justifiable excuse or excusable neglect because he had not known of the filing deadline or postconviction remedy, and because the victim’s wife allegedly had new information suggesting he was imprisoned for conduct he did not commit.
The Court’s Holding
The Colorado Court of Appeals affirmed the summary denial of Lopez’s Rule 35(c) motion as time barred. His assertions that counsel did not advise him about postconviction relief or its deadline, without further supporting facts, did not establish justifiable excuse or excusable neglect. Nor did he explain the delay after learning of Rule 35(c) relief.
The court also held that Lopez’s alleged new-evidence claim was conclusory. Although he identified the victim’s wife as a potential witness, he did not specify what testimony she would provide, when he learned of it, or why he could not have discovered it earlier. His own allegations indicated that he knew of the potential evidence when he entered his plea.
Because the motion was properly summarily denied and contained no potentially meritorious claim, the court held that Lopez was not entitled to appointed postconviction counsel.
Key Takeaways
- A late Rule 35(c) motion requires specific facts showing justifiable excuse or excusable neglect throughout the period of delay.
- A claimed lack of advice about postconviction deadlines or remedies, standing alone, does not excuse an untimely filing.
- A newly discovered evidence theory must identify the evidence and explain why it could not have been discovered earlier.
Why It Matters
The decision underscores that Colorado courts may summarily deny untimely postconviction motions when a defendant offers only generalized explanations for delay. Defendants must plead concrete facts supporting an exception to the statutory time bar.
It also confirms that appointment of postconviction counsel does not precede a factually sufficient claim: a motion that is wholly unfounded may be denied without counsel or a hearing.