20CA0433 Peo v Duran 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0433
Pueblo County District Court No. 13CR1413
Honorable Larry C. Schwartz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Phillip Duran,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE FOX
Schutz and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Phillip Duran, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
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¶ 1 Defendant, Phillip Duran, appeals the denial of his Crim. P.
35(c) motion for postconviction relief. We affirm.
I. Background
¶ 2 Duran pleaded guilty to a single count of distribution of a
controlled substance (heroin) in violation of section 18-18-405,
C.R.S. 2021, then a class 3 felony. As part of the plea agreement,
Duran and the prosecution stipulated to a twenty-four-year
sentence in the Department of Corrections’ (DOC) custody, allowing
the court to determine whether his operative sentence (for case
number 13CR1413) would run concurrently with or consecutively
to his revoked deferred judgment in case number 10CR758
(menacing). On January 28, 2014, the district court sentenced
Duran to twenty-four years in DOC custody and ordered the
sentence to run consecutively to his six-year sentence in the
menacing case.
¶ 3 On April 23, 2014, Duran invoked Crim. P. 35(b) and asked
the court to reconsider the consecutive aspect of his 2014 sentence.
That request was denied. Duran filed another Crim. P. 35(b) motion
in early 2017 seeking sentence reconsideration. The court denied
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that motion for lack of jurisdiction and because Duran had not
established excusable neglect for his untimely filing.
¶ 4 Duran’s next motion, docketed on February 10, 2020, and
filed pursuant to Crim. P. 35(c), asked that the consecutive element
of his sentence be reconsidered in light of Senate Bill 20-076, 72d
Gen. Assemb., 2d Reg. Sess. (Colo. 2020) — concerning Parole
Eligibility for Youthful Offenders — which (1) reflects a softening of
society’s views on some of his predicate offenses and (2) merits a
proportionality review under Wells-Yates v. People, 2019 CO 90M.
Although the court’s order indicated that no action was being
taken, it also stated that the proposed law did not support Duran’s
requested relief and that his sentence was legal at the time of
sentencing.
¶ 5 Duran now appeals the postconviction court’s ruling on his
Rule 35(c) motion.
II. Timeliness of Duran’s Crim. P. 35(c) Claims
¶ 6 The prosecution asserts, and we agree, that Duran’s claim is
untimely.
¶ 7 We review de novo a court’s denial of a Crim. P. 35(c) motion
without a hearing. See People v. Phipps, 2016 COA 190M, ¶ 20. A
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court may deny the motion without a hearing if “the motion, the
files, and the record clearly establish that the defendant is not
entitled to relief.” People v. Osorio, 170 P.3d 796, 799 (Colo. App.
2007).
¶ 8 Generally, a defendant must file a Crim. P. 35(c) motion within
three years after the date of his felony conviction. See § 16-5-
402(1), C.R.S. 2021. The date of Duran’s conviction for purposes of
section 16-5-402(1) was January 28, 2014 — he was sentenced
immediately following his guilty plea and judgment entered. See
People v. Wiedemer, 899 P.2d 283, 284 (Colo. App. 1994); Crim. P.
32(b). The statutory limitations period thus expired on January 28,
2017, but Duran did not file his Crim. P. 35(c) motion until early
2020.
¶ 9 With limited exceptions, the postconviction court “shall deny
any claim that could have been presented in . . . [a] postconviction
proceeding previously brought.” Crim. P. 35(c)(3)(VII). Regardless
of how a criminal defendant captions his pleading, the substance of
a postconviction motion controls its designation. See, e.g., People v.
Collier, 151 P.3d 668, 670 (Colo. App. 2006).
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¶ 10 To the extent Duran again seeks reconsideration of his
sentence, thus replicating the issues resolved in his prior Crim. P.
People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (an appellate
court may affirm the district court on any ground supported by the
record).
III. Conclusion
¶ 11 The postconviction court’s order is affirmed.
JUDGE SCHUTZ and JUDGE GRAHAM concur.