Background
Robert Otilio Montoya pleaded guilty in 2012 to attempted first degree murder as a crime of violence after being extradited to Colorado. At sentencing, over defense counsel’s objection, the district court allowed the prosecution to play a wiretapped conversation and a jail call for the limited purpose of rebutting assertions in Montoya’s sentencing memorandum. The court imposed a forty-eight-year prison sentence.
Montoya later sought postconviction relief. In 2019, he filed a pro se Crim. P. 35(a) motion alleging that the sentence was illegal because the court considered the recordings. Appointed counsel supplemented the motion, arguing that the recordings impaired counsel’s ability to prepare and defend against them and that the absence of a sentencing transcript, Montoya’s efforts to obtain it, and counsel’s postconviction advice justified the late filing.
The Court’s Holding
The Colorado Court of Appeals affirmed the denial of relief. Montoya’s claim that his sentence was imposed in an illegal manner under Rule 35(a) was untimely because it was filed more than 126 days after sentencing. The court held that section 16-5-402’s justifiable-excuse exception addresses collateral attacks on convictions under Rule 35(c), not illegal-manner sentencing claims under Rule 35(a), and it declined to decide whether another rule could extend that deadline.
Even assuming justifiable excuse or excusable neglect could apply to the Rule 35(a) claim, the record supported the district court’s finding that Montoya did not justify a seven-year delay. His Rule 35(c) claims were likewise untimely: the unavailable transcript did not prevent him from raising his challenge to the recordings, and he waited about a year after learning the transcript could not be produced before filing. His knowledge by 2014 that postconviction relief was available, and counsel’s alleged failure to advise him further, did not excuse the delay.
Key Takeaways
- A Rule 35(a) challenge alleging a sentence was imposed in an illegal manner must be filed within 126 days of sentencing.
- A missing sentencing transcript does not establish justifiable excuse where the defendant can identify and raise the underlying claim without it.
- Claims not raised in the district court’s postconviction proceedings will not be considered for the first time on appeal.
Why It Matters
The decision underscores the strict time limits governing Colorado postconviction litigation. A defendant seeking to excuse a late Rule 35(c) filing must account for the entire period of delay and show more than difficulty obtaining a transcript or lack of legal knowledge.