man leaving prison and seeking post-conviction reliefIf you have been convicted of a crime in Colorado, do you know that you have the right to pursue post-conviction relief to vacate your verdict or sentence? If your constitutional rights were violated during the proceedings, you have a right to file what is known as Rule 35 motion to petition the court for post-conviction relief, regardless of whether you were found guilty or accepted a plea deal. There are several types of post-conviction relief that can be obtained through Rule 35.

Rule 35(c), Ineffective Assistance of Counsel, is the most widely used and important form of post-conviction relief. The Sixth Amendment guarantees all criminal defendants the right to a constitutionally effective attorney. If your attorney’s performance fell below the constitutional standard, you may be eligible for post-conviction relief, which could include setting aside the judgment and conviction in your case.

Other uses of these laws include Rule 35(a), Correction of Illegal Sentence or Rule 35(b) for Sentence Reconsiderations. “The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” This motion is different than filing an appeal in that you are seeking relief from the same court that handled your case as opposed to going to a higher court, or an appellate court, to review the case. And if the court grants your motion, your judgment or sentence may be set aside, lessened, or removed. On Rule 35(b), within 126 days of your sentencing, you are permitted to request that a court change the sentence that it gave you. Whether or not to grant a sentence reconsideration is at the discretion of the court. However, there is no penalty to asking for a sentence reconsideration even if the judge does not grant it. Thus, a sentence reconsideration motion is common in many cases.

How long do I have to file a post-conviction motion?

In Colorado, the statute of limitations to file a post-conviction relief motion depends on the type of offense in your case:

  • Class 1 felonies: No time limit
  • All other felonies: Three years
  • Misdemeanors: 18 months
  • Petty offenses: Six months

If the time limit has passed, there are some limited exceptions to the statute of limitations:

  1. The court entering a judgment of conviction did not have jurisdiction over you or the subject matter of your case.
  2. You were unable to meet the filing deadline because you were determined to be incompetent or were institutionalized for being mentally ill.
  3. The failure to seek relief before the time limit was the result of circumstances amounting to “justifiable excuse or excusable neglect.”


What are the grounds for filing?

Not every type of claim can be raised under Rule 35, but you can still make a claim even if you filed an unsuccessful appeal. However, it’s important to note that this rule does not establish the right to re-try the case or to raise any issues that were previously decided or could have been presented with your initial appeal. The most common grounds for post-conviction relief under Rule 35 include:

  1. Your conviction or sentence violates the U.S. and/or Colorado Constitution or laws.
  2. You were convicted under a law that is illegal or unconstitutional.
  3. Your conduct was legal or constitutionally protected.
  4. Your case was heard by a court that didn’t have proper jurisdiction.
  5. You have new evidence of “material facts” that could not have been reasonably discovered or known prior to the trial.
  6. The sentence has already been fully served, or there has been an unlawful revocation of parole, probation, and/or conditional release.
  7. Other grounds, known as collateral attacks, include ineffective assistance of counsel or prosecutorial misconduct.


What are some Rule 35 post-conviction collateral attacks?

A collateral attack, as opposed to a direct attack, “is a challenge on the validity of a prior judgment through a new case rather than by a direct appeal (Cornell Law).” Ineffective assistance of counsel claims is one of the most common collateral attacks used in post-conviction Rule 35 motions. It can include not only poor representation by your lawyer during a trial but also other facets such as investigation, advising a client, wrong advice to plead guilty, failure to retain experts, etc. The main case setting forth the standard for ineffective counsel is Strickland v. Washington and it requires that you show two things:

  1. Counsel’s performance fell below the constitutional standard and was objectively deficient.
  2. There is a reasonable probability that a competent attorney would have led to a different outcome.


How we can help

Navigating the post-conviction process takes experience from someone who knows the proper steps to take full advantage of the laws involved. The Civil Rights Litigation Group handles both civil rights and criminal defense cases so we are uniquely qualified to help you with your post-conviction relief case. Call us for a free consultation to determine your eligibility for post-conviction relief, and to help us formulate the best strategy for putting your past where it belongs—behind you.

Call 720-515-6165 for a free consultation.


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