Am I Entitled to a Hearing on My Colorado 35(c)?

Posted by Kimberly Penix - March 17, 2020 - 35(c), Appeals, Colorado Appeals, Criminal Appeals, Ineffective Assistance - No Comments

After a Colorado criminal defendant has exhausted the direct appeal process, he may turn to filing a pro se motion for relief pursuant to Colo. Crim. P. 35(c). Often, this is where he alleges that his trial counsel was ineffective.

Upon receipt of a 35(c) motion, the reviewing court must consider whether “the motion and the files and record of the case show to the satisfaction of the court that the defendant is not entitled to relief.” Colo. Crim. P. 35(c)(3)(IV). If not, the court must appoint counsel to represent the defendant and order briefing from both parties. Colo. Crim. P. 35(c)(3)(V). After briefing, the district court “shall grant a prompt [evidentiary] hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law.” Colo. Crim. P. 35(c)(3)(V).

To obtain the hearing contemplated in Colo. Crim. P. 35(c)(3)(V), a “defendant need only assert facts that if true would provide a basis for relief under Crim. P. 35.” White v. Denver Dist. Court, Div. 12, 766 P.2d 632, 635 (Colo. 1988). The reviewing court must accept as true the factual allegations contained in the 35(c) motion, and a defendant need not set forth evidentiary support for his allegations or show how he intends to prove them. White, 766 P.2d at 635. If there is any doubt about whether “the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief,” an evidentiary hearing must be held. See People v. Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993); see also People v. Germany, 674 P.2d 345, 350 (Colo. 1983) (explaining that constitutional due process requires a meaningful opportunity to challenge an allegedly unconstitutional conviction).

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.