Peo v. Farrow ( 2024 )

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<div>23CA0006 Peo v Farrow 10-03-2024 </div>
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<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 23CA0006 </div>
<div>Arapahoe County District Court No. 15CR2605 </div>
<div>Honorable Darren L. Vahle, Judge </div>
<div> </div>
<div> </div>
<div>The People of the State of Colorado, </div>
<div> </div>
<div>Plaintiff-Appellee, </div>
<div> </div>
<div>v. </div>
<div> </div>
<div>Michael Dehawn Farrow, </div>
<div> </div>
<div>Defendant-Appellant. </div>
<div> </div>
<div> </div>
<div>ORDER AFFIRMED </div>
<div> </div>
<div>Division II </div>
<div>Opinion by JUDGE <span>JOHNSON</span> </div>
<div>Fox<span> and Schock, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Philip J. Weiser, Attorney General, <span>Joseph G. Michaels, Assistant </span>Solicitor </div>
<div>General, Denver, Colorado, for Plaintiff-Appellee </div>
<div> </div>
<div>Lucy<span> H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-</span>
</div>
<div>Appellant</div>
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<div>1 </div>
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<div>¶ 1<span> </span><span>Defendant, Michael Dehawn Farrow (Farrow), appeals the </span>
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<div>postconviction <span>court’s </span>order denying without a hearing his Crim. P. </div>
<div>35(b) motion. We affirm.<span> </span> </div>
<div>I.<span> <span>Background </span></span>
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<div>¶ 2<span> </span><span>After attempting to run over his housemates with his car, </span>
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<div>Farrow was convicted by a jury in November 2017 of att<span></span>empted first </div>
<div>degree assault (<span>a </span>class 4 felony), menacing (<span>a </span>class 5 felony), </div>
<div>reckless endangerment (<span>a </span>class 3 misdemeanor), reckless driving (<span>a </span>
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<div>class <span>2 </span>misdemeanor traffic offense), and a crime of violence </div>
<div>sentence enhancer.<span> </span>The jury found that the prosecution had </div>
<div>proved the sentence enhancer, as Farrow had used his car as a </div>
<div>deadly weapon.<span> <span> </span></span>
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<div>¶ 3<span> <span>Farrow’s<span> housemates testified at trial that while they were </span></span></span>
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<div>arguing with Farrow about evicting him<span>, </span>he attempted to kill them </div>
<div>outside the home with his car<span>. </span><span>Farrow</span><span>’s theory of defense was</span> that </div>
<div>he acted in self-defense after a housemate threatened to get a gun </div>
<div>and return<span>ed</span> to the house to retrieve it. <span> </span>Farrow was sentenced to </div>
<div>twelve years in the custody of the Department of Correction<span></span>s (DOC) </div>
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<div>2 </div>
<div>on the attempted assault offense, with the other sentences to run </div>
<div>concurrently. <span> </span>
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<div>¶ 4<span> </span><span>A division of this court affirmed Farrow<span>’s judgment of </span></span>
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<div>conviction on direct appeal. <span>See</span> <span>People v. Farrow</span><span>, </span>(Colo. A<span></span>pp. No. </div>
<div>17CA2352<span>, <span>Aug. 12, 2021) (not published pursuant to C.A.R. 35(e)). </span></span>
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<div>The supreme court denied his petition for certiorari. <span> </span>
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<div>¶ 5<span> </span><span>In<span> September 2022, Farrow filed a Crim. P. 35(b) motion </span></span>
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<div>seeking to reduce his sentence.<span> </span>Providing over 300 pages of </div>
<div>exhibits to support his request, Farrow argu<span>ed</span> that his sentence </div>
<div>should be reduced because he was not receiving sufficient mental </div>
<div>health treatment in DOC<span>. </span>The court ordered a response from the </div>
<div>prosecution and<span>, </span>following briefing, denied the motion, finding that<span></span> </div>
<div>Farrow’s sentence was appropriate.<span> <span> </span></span>
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<div>¶ 6<span> </span><span>In December 2022, Farrow filed <span>a </span>motion to reconsider the </span>
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<div>court’s denial<span>, <span>asserting that he had not been served with either the </span></span>
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<div>prosecution’s<span> response to his Rule 35(b) motion or the c<span>ourt’s o<span></span>rder<span> </span></span></span>
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<div>denying the same<span>. </span>He argued that, due to a clerical error, <span>Farrow’s</span> </div>
<div>counsel had not been listed as counsel of record in <span>the court’s e</span>-</div>
<div>filing system<span>. </span>The court summarily denied the motion to </div>
<div>reconsider.<span> <span> </span></span>
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<div>3 </div>
<div>¶ 7<span> </span><span>On appeal,<span> </span>Farrow contends that the court abused its </span>
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<div>discretion <span>by</span> (1) denying his Crim. P. 35(b) motion and his moti<span></span>on </div>
<div>to reconsider because he had not been given the opportunity to </div>
<div>reply to the prosecution<span>’s response to his </span>Rule 35(b) motion and (2<span>) </span>
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<div>failing to provide a sufficient explanation for denying his request fo<span></span>r </div>
<div>a <span>sentence reduction given the new and substantial information </span>
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<div>concerning his mental health. </div>
<div>II.<span> <span>Standard of Review and Applicable Law </span></span>
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<div>¶ 8<span> <span>We review a district court’s ruling on a Crim. P. 35(b)<span></span> motion </span></span>
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<div>for an abuse of discretion. <span>People v. Chavez</span>, 2020 COA 80M, ¶ 8. <span></span> </div>
<div>A court abuses its discretion when its decision is manifestly </div>
<div>arbitrary, unreasonable, or unfair, or based on a misun<span></span>derstanding </div>
<div>or misapplication of the law<span>. </span><span>People v. Miller</span>, 2024 COA 66, ¶ 40. <span>A </span>
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<div>court fails to exercise its judicial discretion by refusi<span></span>ng to consider </div>
<div>mitigating information and failing to make findings in supp<span></span>ort of its </div>
<div>decision. <span>People v. Busch</span>, 835 P.2d 582, 583 (Colo. App. 1<span></span>992). </div>
<div>¶ 9<span> <span>“A court’s review of a Crim. P. 35(b) motion focuses <span></span>on the </span></span>
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<div>fairness of the sentence in light of the purposes of the sentencing </div>
<div>laws.” <span>People v. Dunlap<span>, 36 P.3d 778, 780 (Colo. 2001). When </span></span>
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<div>presented with such a motion, the court may consider all relevant<span></span> </div>
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<div>4 </div>
<div>and material factors, including new evidence and facts the district </div>
<div>court knew when it imposed the original sentence. <span>Id<span>.</span></span><span> <span>“</span></span>Crim. P. </div>
<div>35(b) does not require the trial court to make findings of fact,<span>”</span> but </div>
<div>the court <span>“should </span>provide a statement of the basic reasons in </div>
<div>support of its ruling.” <span>I<span>d.</span></span><span> at 782. And </span><span>“</span><span>[t]he court may, aft<span></span>er </span>
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<div>considering the motion and supporting documents, <span></span>if any, deny the </div>
<div>motion without a hearing.”<span> <span>Id</span></span><span>. <span>at 780. </span></span>
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<div>III.<span> <span>Analysis </span></span>
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<div>¶ 10<span> </span><span>The Attorney General argues that we do not need to reach the </span>
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<div>merits of Farrow<span>’s</span> two contentions because t<span>he</span>y challenge the </div>
<div>propriety of his sentence. We do not read <span>Farrow’s</span> argument that </div>
<div>narrowly. Nonetheless, we conclude that the court did not abuse </div>
<div>its discretion when it denied his motion. </div>
<div>¶ 11<span> <span>As to Farrow’s first argument<span> </span><span>—</span><span> that the court improperly </span></span></span>
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<div>denied his Rule 35(b) motion and the motion to reconsider because </div>
<div>he could not file a reply <span>—</span> we reject that the district court abu<span></span>sed </div>
<div>its discretion. Crim. P. 35(b) does not provide defendants the right </div>
<div>to reply.<span> </span>Instead, a court may rule on a motion for sentence </div>
<div>reduction based solely on the “motion and supporting <span></span>documents, if </div>
<div>any.” <span>Crim. P. 35(b).<span> <span> </span></span></span>
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<div>5 </div>
<div>¶ 12<span> </span><span>Even so, Farrow argues that he was denied the opportunity t<span></span>o </span>
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<div>request to file a reply because he was not served with <span></span>the </div>
<div>prosecution<span>’s response or the court’s denial of his <span>Rule 35(b) </span></span>
</div>
<div>motion. Acknowledging the clerical error in its order denying </div>
<div>Farrow’s motion to reconsider<span>, <span>the court also noted that it had not </span></span>
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<div>asked Farrow to file a reply to his Rule 35(b) motion. Given that<span></span> </div>
<div>Rule 35(b) does not authorize an automatic right to reply, the </div>
<div>court’s <span>ruling suggests that it would not have accepted such a </span>
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<div>submission (or requested one) <span>even if Farrow’s counsel had been </span>
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<div>served with the prosecution<span>’s response.</span><span> </span><span>Cf. People v. Nozolino</span>, 2023 </div>
<div>COA 39, ¶ 8 (an appellate court reviews a postconvict<span></span>ion court’s </div>
<div>failure to comply with the procedures of Crim. P. 35(<span></span>c) for harmless </div>
<div>error). </div>
<div>¶ 13<span> </span><span>And even assuming Farrow had submitted a reply, we also </span>
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<div>reject his second argument that the district court did not provide </div>
<div>sufficient factual findings in its order denying relief. Farrow asserts </div>
<div>that the court failed to consider the substantial new information </div>
<div>regarding his mental health and treatment that he had submit<span></span>ted in </div>
<div>both motions.<span> </span>Farrow specifically refers to two psychologists<span>’</span> </div>
<div>evaluations in 2022 and their belief that he likely has borderline </div>
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<div>6 </div>
<div>personality disorder (BPD). He explained that for a patient wit<span></span>h </div>
<div>BPD to progress in treatment, the person must <span>re</span>ceive bot<span></span>h </div>
<div>individual and group dialectical behavioral therapy (DBT) sessions </div>
<div>and medications. Farrow outlined in his motion that he had not </div>
<div>been offered DBT or a modified form of treatment for cor<span></span>rectional </div>
<div>environments, such as “DBT<span>-</span>CM,” during his incarceration. <span> </span>
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<div>¶ 14<span> </span><span>Farrow has pointed to <span>no</span>thing in the record to suggest that </span>
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<div>the district court failed to review and consider the new inform<span></span>ation </div>
<div>he submitted. In fact, as required by Crim. P. 35(b), the court </div>
<div>noted that it had reviewed “the file and the pleadings and </div>
<div>considered all relevant and material factors including Defend<span></span>ant’s </div>
<div>actions while incarcerated.” The court also acknowledged that<span></span> it </div>
<div>was “aware of <span>the . . . mental health issues raised by the defense in </span>
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<div>their motion,” indicating that it had considered the att<span>ached </span>
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<div>information as part of its ruling. </div>
<div>¶ 15<span> </span><span>Even so, Farrow contends that the district court<span>’s findings are </span></span>
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<div>in<span>sufficient given the substantial amount of information <span></span>he </span>
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<div>submitted. But the court was not required to make any <span></span>specific </div>
<div>findings of fact about <span>Farrow’s</span> mental health or his treatment </div>
<div>plans.<span> <span>See Dunlap<span>, 36 P.3d at 780. The court laid out its basis for </span></span></span>
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<div>7 </div>
<div>denying the motion when it indicated that Farrow had not </div>
<div>establish<span>ed</span><span> a factual issue warranting a hearing. Although Farrow </span>
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<div>highlighted his struggles to obtain treatment in DOC, this does not </div>
<div>require the court to reduce his sentence. As the postconviction </div>
<div>court reasoned, <span>“</span>[t]he original trial court had sufficient inf<span></span>ormation </div>
<div>prior to sentencing, and the benefit of a full pre-sentence </div>
<div>investigatory report.<span>” The order continued, “</span>The [original trial] </div>
<div>Court weighed the options available and chose a sent<span></span>ence that was </div>
<div>neither the bottom of the range nor the top.<span> </span>The Court finds that </div>
<div>the sentence was [then] and is [now] <span>appropriate.” </span>Based on this </div>
<div>record, we discern no basis to set aside the district court’s rulin<span></span>g.<span> </span>
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<div>See Chavez<span>, ¶ 8.<span> <span> </span></span></span>
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<div>IV.<span> </span><span>Conclusion </span>
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<div>¶ 16<span> </span><span>The order is affirmed. </span>
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<div>JUDGE FOX and JUDGE SCHOCK concur. </div>
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