Full Opinion

25CA1062 Peo v Lopez 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1062 El Paso County District Court No. 11CR3490 Honorable Frances Johnson, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Donny Anthony Lopez, Defendant-Appellant. ORDER AFFIRMED Division I Opinion by JUDGE SULLIVAN J. Jones and Schock, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Donny Anthony Lopez, Pro Se ¶1 Donny Anthony Lopez appeals the district court’s order denying his Crim. P. 35(c) motion without a hearing. We affirm. I. Background ¶2 Lopez was involved in a fight that ended in a deadly shooting. He pleaded guilty to aggravated robbery, a class 3 felony, and second degree murder as a crime of violence, a class 2 felony. In August 2012, the district court imposed an aggregate sentence of sixty-four years in the custody of the Department of Corrections. Lopez didn’t appeal. ¶3 Twelve years later, in October 2024, Lopez filed a “Motion to Rescind Plea Deal.” He asserted that he “was coerced by the judge and the DA into a plea agreement that was not factual.” He further stated, “If the Court feels this motion is time barred or finds any other reason for denial, I ask you to take into account that the defendant was not afforded an opportunity to demonstrate excusable neglect based upon ineffective assistance of his trial counsel.” ¶4 The district court noted that Lopez’s motion appeared to be making a claim for relief under Crim. P. 35(c). But because the 1 motion didn’t substantially comply with Form 4, the court returned it to Lopez along with a blank Form 4. ¶5 Lopez then filed a Crim. P. 35(c) motion in January 2025 in which he asserted thirty-four claims, including claims of ineffective assistance of counsel and prosecutorial and judicial misconduct or error. Though he recognized that his motion wasn’t filed within the limitations period set forth in section 16-5-402(1), C.R.S. 2026, he asserted that his failure to timely file it was the result of circumstances amounting to justifiable excuse or excusable neglect. Specifically, he claimed that (1) he “was never made aware of [the] time limits” for filing “a petition for relief for an attack on [his] conviction”; (2) his plea counsel never “told [him] of any such relief”; and (3) he “was informed of such an avenue” a “little over a year ago.” ¶6 Also in support of his justifiable excuse or excusable neglect arguments, Lopez asserted that he had become aware of new evidence. Though he didn’t state what this new evidence was in arguing justifiable excuse or excusable neglect, he indicated elsewhere in the motion that the victim’s wife had corresponded with him and said (1) she “has been wanting to tell the courts the 2 truth about that night”; (2) “she is tired of living a lie”; (3) she “feels horrible for me getting a bunch of time for something I didn’t do”; (4) “she tried telling the DA and was told nothing”; and (5) “she is willing to do whatever it takes to set the record straight.” ¶7 The district court denied the motion as time barred, concluding that Lopez had failed to state sufficient facts in support of justifiable excuse or excusable neglect: Mr. Lopez makes bare assertions that he was unaware of the ability to attempt to challenge his convictions sooner and that his attorney did not tell him he could attempt to challenge his convictions. These are insufficient without more facts to justify the Court setting a hearing or making a finding of justifiable excuse or excusable neglect. As to Lopez’s “new evidence” claim, the court ruled as follows: [Lopez has] assert[ed] that the victim’s wife is willing to do what it takes to set the record straight. But [his] petition does not assert what the alleged different facts are. The Court finds that this bare assertion that an unidentified victim’s wife has unspecified information that would change the outcome of this case is insufficient to constitute justifiable excuse or excusable neglect. All the more so when [Lopez] does not specify when he learned of the alleged new evidence. 3 II. Discussion ¶8 Lopez contends that the district court erred by denying his Crim. P. 35(c) motion without a hearing or the appointment of counsel. Reviewing the matter de novo, People v. Cali, 2020 CO 20, ¶ 14, we disagree. A. Lopez’s Motion Was Time Barred ¶9 Lopez concedes that his Rule 35(c) motion was filed outside the applicable three-year time limitation set forth in section 16-5-402(1) but argues that he proffered adequate allegations of justifiable excuse or excusable neglect. See § 16-5-402(2)(d) (codifying exception to time bar for “circumstances amounting to justifiable excuse or excusable neglect”). ¶ 10 In his motion, Lopez first claimed that he “was never made aware of” the time limits for filing a Crim. P. 35(c) petition and his plea counsel never told him about such relief. Without more, these allegations don’t amount to justifiable excuse or excusable neglect. See People v. Martinez-Huerta, 2015 COA 69, ¶ 17 (“Generally, the absence of, or failure to give, advice does not establish justifiable excuse or excusable neglect.”), disagreed with on other grounds by People v. Chavez-Torres, 2019 CO 59; People v. Alexander, 129 P.3d 4 1051, 1056 (Colo. App. 2005) (counsel’s failure to advise regarding the time limitations for seeking postconviction relief doesn’t constitute justifiable excuse or excusable neglect); see also People v. Chang, 179 P.3d 240, 245 (Colo. App. 2007) (lack of knowledge about how to protect legal rights doesn’t constitute justifiable excuse or excusable neglect). Further, Lopez offered no facts accounting for his delay after he allegedly learned of Crim. P. 35(c) as a potential avenue for relief a “little over a year” before he filed his motion. See People v. Wiedemer, 852 P.2d 424, 441 (Colo. 1993) (noting that, in determining justifiable excuse or excusable neglect, courts should “consider the circumstances existing throughout the entire period from the inception of the conviction”). Thus, we perceive no error in the district court’s conclusion that Lopez’s assertions were insufficient to establish justifiable excuse or excusable neglect. ¶ 11 The “new evidence” allegations contained in Lopez’s motion fare no better. While Crim. P. 35(c)(2)(V) authorizes relief based upon newly discovered evidence, see People v. Schneider, 25 P.3d 755, 760 (Colo. 2001), such a claim is still subject to the time bar in section 16-5-402. And, as the district court concluded, Lopez’s 5 assertions related to “new evidence” were bare. Though he adequately alleged the identity of the witness who had allegedly reached out to him with purported new evidence, he didn’t allege what specific testimony she would offer. Instead, he made only bare and conclusory allegations that she had told him that she felt badly “for [him] getting a bunch of time for something [he] didn’t do.” ¶ 12 Likewise, Lopez’s motion didn’t explain why he couldn’t have previously discovered this information. See People v. Clouse, 74 P.3d 336, 340 (Colo. App. 2002) (the defendant’s motion failed to allege facts establishing justifiable excuse or excusable neglect because he didn’t offer an explanation as to why he couldn’t have discovered the new evidence earlier). Indeed, Lopez alleged in his motion that he had asked his plea counsel to talk to the victim’s wife “about what really happened,” which indicates that he knew of the evidence that he now posits is “new” at the time he entered his plea. ¶ 13 Under these circumstances, we can’t conclude that Lopez adequately alleged justifiable excuse or excusable neglect for his late filing. Though he adds substantial factual allegations in his 6 opening brief on appeal, we will not consider these belated attempts to fortify his allegations. See People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996). B. Appointment of Counsel ¶ 14 Although Lopez’s Rule 35(c) motion requested counsel, the statutory right to postconviction counsel is only triggered when the motion or petition isn’t wholly unfounded. People v. Nozolino, 2023 COA 39, ¶ 34. Only when a motion survives summary denial under Crim. P. 35(c)(3)(IV) because it contains at least one potentially meritorious claim is the motion not wholly unfounded. Id.; see Townsell v. People, 2026 CO 11M, ¶ 23. ¶ 15 Having concluded that the district court didn’t err by summarily denying Lopez’s Crim. P. 35(c) motion, we necessarily conclude that the district court didn’t err by declining to appoint counsel. To the extent Lopez asserts that he should have been appointed counsel to investigate his “new evidence” claim, we disagree. Absent factually sufficient grounds in support of a defendant’s claims, the limited statutory right to postconviction counsel isn’t triggered. See Silva v. People, 156 P.3d 1164, 1168 (Colo. 2007); People v. White, 981 P.2d 624, 626 (Colo. App. 1998); 7 see also Townsell, ¶ 23 (Crim. P. 35(c)(3)(IV) “requires the defendant to provide adequate factual or legal grounds, which if true, would entitle the defendant to relief.”). III. Disposition ¶ 16 We affirm the district court’s order. JUDGE J. JONES and JUDGE SCHOCK concur. 8