Post-conviction rights in Colorado and how to get relief

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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Getting your criminal record sealed just got easier

Getting your criminal record sealed just got easier

court records sealedIf you live in Colorado, getting your records sealed is much easier than it used to be. Landmark legislation (House Bill 19-1275) made it possible to seal many convictions and other types of criminal justice records that were never eligible for sealing in the past. You can even move to seal multiple convictions in some cases, and the rules allow for the sealing of many types of felonies, not just lower-level offenses. The new law even allows you to get records sealed for some types of sex offenses.

Who is eligible to have their records sealed?

If you have a case that resulted in a complete dismissal, acquittal, or you successfully completed a deferred judgment, then you may be eligible to have your records sealed automatically. This simplified process requires the court to seal your records and is very streamlined. In most of these cases, the prosecution cannot even object. It is your right to have your records sealed.

When can I have conviction records sealed?

The law also allows for the sealing of convictions for many types of offenses. For eligible types of convictions, if you have not been charged with any new crimes after the case you are trying to seal, you can move to have your records sealed after the passage of short waiting periods. Those waiting periods end after your conviction is final or your sentence is complete, whichever happens last. The waiting periods are:

  • Petty offenses: 1 year
  • Class 2 or 3 misdemeanors: 2 years
  • Class 1 misdemeanors: 3 years
  • Level 3 or 4 drug felony: 3 years
  • Class 4, 5, or 6 felony: 3 years
  • All others: 5 years

In addition to having a clean record after the conviction you want sealed, you also must ensure you’ve paid all your fines, costs, and restitution to be eligible. In general, to have conviction records sealed, “the court must determine that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to the conviction records. In making this determination, the court shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records.” C.R.S. §24-72-706(1)(g).  

What are the exceptions?

There are certain convictions that you cannot seal, but careful analysis of each case is necessary to determine eligibility. There is, however, an exception for certain misdemeanors that are normally prohibited from sealing “if the district attorney consents to the sealing or if the court finds, by clear and convincing evidence, that the petitioner’s need for sealing of the record is significant and substantial, the passage of time is such that the petitioner is no longer a threat to public safety, and the public disclosure of the record is no longer necessary to protect or inform the public.” C.R.S. §24-72-706(2)(b).

How can we help get your records sealed?

We help people seal their records in all types of cases, which can make a huge difference the next time a standard background check needs to be conducted, whether for work, housing, financing, or any other purpose. You can also move to seal certain municipal convictions as well. Call us today for a free consultation to determine your eligibility to get your records sealed, 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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Denver, CO 80202

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