20CA1349 Peo v Nardello 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1349
Larimer County District Court No. 09CR1781
Honorable Juan G. Villasenor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Andrew Charles Nardello,
Defendant-Appellant.
ORDER AFFIRMED
Division VII
Opinion by JUDGE PAWAR
Navarro and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Andrew Charles Nardello, Pro Se
1
¶ 1 Defendant, Andrew Charles Nardello, appeals the district
court’s order denying his most recent postconviction motion. We
affirm.
I. Background
¶ 2 In 2011, Nardello pleaded guilty to two counts of attempted
first degree murder and one count of first degree burglary, and the
district court sentenced him to consecutive sentences on each
count for an aggregate sentence of 108 years in the custody of the
Department of Corrections.
¶ 3 Since then, Nardello filed two postconviction motions claiming,
among other things, that his sentences were unconstitutionally
aggravated in violation of Blakely v. Washington, 542 U.S. 296
(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000); the court
imposed aggravating sentences without findings of aggravation; his
plea was not knowingly, voluntarily, and intelligently entered; and
he received ineffective assistance from his plea counsel. The district
court summarily denied the first motion, and a division of this court
affirmed that order on appeal. See People v. Nardello, (Colo. App.
No. 13CA0815, May 14, 2015) (not published pursuant to C.A.R.
35(f)) (Nardello I). As for the second motion, the district court
2
denied it after a hearing, and another division of this court affirmed
that order. See People v. Nardello, (Colo. App. No. 16CA1031, Sept.
14, 2017) (not published pursuant to C.A.R. 35(e)) (Nardello II).
¶ 4 Undeterred, Nardello filed his most recent postconviction
motion in 2020 alleging various claims of ineffective assistance from
his plea counsel, trial court errors, an invalid plea, and ineffective
assistance from his postconviction counsel for failing to investigate
the improper entry of a restitution order in his absence. The
district court denied that motion without a hearing finding that it
was time barred pursuant to section 16-5-402(1), C.R.S. 2021, and
that Nardello had not alleged justifiable excuse or excusable neglect
to overcome the time bar.
II. Discussion
¶ 5 Reviewing de novo the district court’s summary denial of
Nardello’s postconviction motion, see People v. Gardner, 250 P.3d
1262, 1266 (Colo. App. 2010), we perceive no error.
A. Procedural Bars
¶ 6 Crim. P. 35(c)(2)(I) authorizes postconviction motions alleging
that a conviction or sentence was obtained or imposed in violation
of the Constitutions or laws of the United States or Colorado.
3
However, Crim. P. 35(c) claims are subject to the following
procedural bars: (1) absent justifiable excuse or excusable neglect,
postconviction challenges to non-class 1 felonies must be brought
within three years of the conviction becoming final, see § 16-5-
402(1), (2)(d); and (2) subject to certain exceptions, the court is
required to deny any claim that either was raised and resolved, or
could have been presented, in a previous postconviction proceeding,
see Crim. P. 35(c)(3)(VI), (VII).
1. Time Barred Claims
¶ 7 Because Nardello did not pursue a direct appeal, his
convictions became final in 2011 when the deadline for filing a
direct appeal expired. See People v. Chavez-Torres, 2019 CO 59, ¶
12 n.4. In his most recent motion, filed in 2020, Nardello raised
numerous claims regarding ineffective assistance from his plea
counsel, trial court errors, and the validity of his plea agreement.
However, because he raised those claims more than eight years
after his conviction became final, and did not allege facts that, if
true, would establish justifiable excuse or excusable neglect for the
late filing, the postconviction court did not err in denying those
claims as time barred. See Crim. P. 35(c)(2)(I) (any motion filed
4
outside the time limits of section 16-5-402 must allege facts that, if
true, would establish an exception to the time bar); see also Chavez-
Torres, ¶ 13 (the motion must allege facts which, if true, would
entitle the defendant to relief from the time bar) (citing People v.
Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993)).
¶ 8 To the extent Nardello’s motion alleged ineffective assistance of
postconviction counsel, he raised that claim more than three years
after his conviction became final and, thus, was required to assert
specific facts that, if true, would establish justifiable excuse or
excusable neglect for the untimely filing. See People v. Clouse, 74
P.3d 336, 341 (Colo. App. 2002) (the timeliness of postconviction
counsel claims will almost always be assessed under a justifiable
excuse or excusable neglect rubric because the postconviction
proceedings will generally consume and even exceed the limitation
period as measured from the date of conviction). Although Nardello
asserts in his motion that ineffective assistance of postconviction
counsel can provide justifiable excuse or excusable neglect, he
waited more than eighteen months from the mandate of Nardello II
to file his most recent motion. And, because his motion did not
allege specific facts that, if true, would explain why he waited so
5
long to file this postconviction counsel claim, the district court did
not err in denying that claim as untimely. See Chavez-Torrez, ¶ 13.
Even so, as discussed in part II.B below, his ineffective
postconviction counsel claim fails.
2. Successive Claims
¶ 9 Other than his ineffective assistance of postconviction counsel
claim, Nardello’s claims are also successive because they either
were raised and resolved, or could have been presented, in his prior
postconviction motions. Thus, because the exceptions outlined in
Crim. P. 35(c)(3)(VI) and (VII) are not applicable here, the
postconviction court was required to deny those claims as
successive. Crim. P. 35(c)(3)(VI)(a)-(b) (excludes claims based on
newly discovered evidence or new rules of constitutional law that
apply retroactively), (VII)(a)-(e) (excludes claims based on newly
discovered evidence, new rules of constitutional law that apply
retroactively, events occurring after the prior postconviction
proceeding, or the court lacking subject matter jurisdiction, and
any claim that could not have been raised earlier due to an
objective factor not attributable to the defendant); see also Dunlap
v. People, 173 P.3d 1054, 1062 n.4 (Colo. 2007); People v. Houser,
6
2020 COA 128, ¶ 15; see also People v. Aarness, 150 P.3d 1271,
1277 (Colo. 2006) (holding that an appellate court may affirm the
trial court on any grounds supported by the record).
B. Ineffective Assistance of Postconviction Counsel Claim Is Bare
and Conclusory
¶ 10 Finally, even if we assume that Nardello’s ineffective
assistance of postconviction counsel claim is not procedurally
barred, we nevertheless conclude that the district court did not err
in summarily denying it.
¶ 11 A district court may deny a postconviction motion without a
hearing if the claims are bare and conclusory in nature and lack
(Colo. App. 2005).
¶ 12 As presented in Nardello’s motion, the claim that
postconviction counsel provided ineffective assistance merely states
that postconviction counsel failed to investigate trial counsel’s
ineffectiveness for failing to object to restitution. However, Nardello
does not allege facts to establish that the restitution order was
erroneously entered or that there was some defense to the
restitution amount. Thus, this allegation is bare and conclusory,
7
and the district court did not err in summarily denying it. See id.;
see also Aarness, 150 P.3d at 1277.
¶ 13 To the extent Nardello’s opening brief on appeal alleges an
additional claim regarding postconviction counsel’s failure to
provide record support for his invalid guilty plea claim, we decline
to address that issue because it is raised for the first time on
appeal. See DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996)
(“Issues not raised before the district court in a motion for
postconviction relief will not be considered on appeal of the denial of
that motion.”); People v. Goldman, 923 P.2d 374, 375 (Colo. App.
1996) (allegations not raised in a postconviction motion aren’t
properly before this court for review).
III. Conclusion
¶ 14 The order is affirmed.
JUDGE NAVARRO and JUDGE GROVE concur.
