Using Colorado Rule of Criminal Procedure 35(c) more than once during post-trial review is discouraged by the courts . . . but there are exceptions.

As discussed on this page, Article 35(c) is an incredibly valuable tool because “every person convicted of a crime is entitled as a matter of right to make application for post-conviction review.”  (Emphasis added).[1]  However, the courts are not required to entertain a second or successive motion for similar relief on behalf of the same prisoner.[2]  Just as importantly, “[t]he court shall deny any claim that could have been presented in an appeal previously brought or post-conviction proceeding previously brought.[3]  Put simply, if you didn’t bring your issue to the court the first time, you could be out of luck.

There are Exceptions

As with many things in the law, there are exceptions.  Importantly though, how you or your attorney frames the issues could determine whether the court hears a second or successive Rule 35(c) motion.

Under Rule 35(c), there are generally six exceptions to the rule that the courts will not hear multiple motions.  Specifically, the courts may consider your additional motions if the claims are based on:

  1. Evidence that could not have been discovered previously through the exercise of due diligence;
  2. A new rule of constitutional law that was previously unavailable, if that rule has been applied retroactively by the United States Supreme Court or Colorado appellate courts;
  3. Events that occurred after initiation of the prior appeal or post-conviction proceeding;
  4. A new rule of constitutional law that was previously unavailable, if that rule should be applied retroactively to cases on collateral review;
  5. The argument that the sentencing court lacked subject matter jurisdiction; or
  6. Where an objective factor, external to the defense and not attributable to the defendant, made raising the claim impracticable.

So, What Does This Mean?

Taken altogether, what the exceptions stand for is the general rule that, as long as something occurred that was beyond your control that prevented you from raising the issue previously, then the court may consider your successive Rule 35(c) motion.  One example is ineffective assistance of appellate counsel.  Let’s assume for the moment that you have hired an attorney to handle your appeal and the attorney raises a Rule 35(c) motion.  Now let’s assume that your appellate attorney missed something critical to your appeal – something that should not have been missed.  If the appellate court prevented you from raising this issue, then you would be out of luck.  However, if your attorney commits malpractice by not raising a critical issue, there is a good argument that this qualifies as an “event that occurred after initiation of the . . . prior appeal or post-conviction proceeding.”  As such, there is a very good chance the court would be willing to hear the claim.

Likewise, assume you have been improperly convicted of sexual assault.  Also assume that the alleged victim lied on the stand but that this evidence did not come out until your appeal and post-conviction proceeding had been completed.  In addition to an event that occurred after initiation of the post-conviction proceeding, this would also likely qualify as “evidence that could not have been discovered previously through due diligence.”  Here to, there is a strong argument that the court would hear your additional Rule 35(c) motion.

If you have already raised a Rule35(c) motion, you are not precluded from raising more issues, so long as you or your attorney can properly frame those issues before the court.  If you are looking for an experienced criminal appeals attorney, give me a call.  I’d welcome the opportunity to discuss you case and all initial consultations are free of charge.

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[1] C.R.C.P. 35(c).

[2] Henson v. People, 430 P.2d 475, 475 (Colo. 1967).

[3] C.R.C.P. 35(c).


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