v. Worosello

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 14, 2019

2019COA166

No. 16CA1569, People v. Worosello — Criminal Procedure —

Postconviction Remedies; Criminal Law — Limitation for

Collateral Attack Upon Trial Court Judgment; Courts and Court

Procedure — Limitations for Persons Under Disability — When a

Statute Begins to Run

A division of the court of appeals considers whether section

13-81-103(1)(a), C.R.S. 2019, tolls the statute of limitations set

forth in section 16-5-402(1), C.R.S. 2019, for collateral attacks on

convictions. As an issue of first impression, the division concludes

that it does not. The division also considers whether the defendant

alleged facts that, if true, would constitute justifiable excuse or

excusable neglect so as to entitle him to a hearing. The division

concludes that he did not.
 Because the postconviction court properly denied the

defendant’s Crim. P. 35(c) motion as untimely, the division affirms.
COLORADO COURT OF APPEALS 2019COA166

Court of Appeals No. 16CA1569
Douglas County District Court No. 04CR800
Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Worosello,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE BROWN
Dailey and Richman, JJ., concur

Announced November 14, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this appeal from the postconviction court’s order denying

Defendant James Worosello’s Crim. P. 35(c) motion, we consider

whether section 13-81-103(1)(a), C.R.S. 2019, tolls the statute of

limitations set forth in section 16-5-402(1), C.R.S. 2019, for

collateral attacks on convictions. As an issue of first impression,

we conclude that it does not. We also conclude that Worosello

failed to allege facts that, if true, would constitute justifiable excuse

or excusable neglect. Because his Crim. P. 35(c) motion was

untimely, we affirm.

I. Background

¶2 In November 2004, the prosecution charged Worosello with

two counts of enticement of a child and two counts of contributing

to the delinquency of a minor arising from his interactions with two

teenage girls at a swimming pool.

¶3 Because the issue of Worosello’s competence is central to this

appeal, we set forth the dates and results of the competency

evaluations, hearings, and determinations in some detail.

¶4 In December 2004, Worosello underwent a private mental

health evaluation, which determined he was not competent to

proceed. The prosecution requested and was granted an additional

1
 evaluation through the state hospital system. The state hospital

evaluators determined that Worosello was competent.

¶5 In June 2005, the district court held a competency hearing. It

found that Worosello “suffer[ed] from mental defect” but that he was

competent to proceed.

¶6 On August 1, 2005, Worosello pleaded guilty to one count of

enticement of a child, a class 4 felony. At that time, the district

court again found that Worosello was competent considering its

observations of Worosello during the plea hearing and its review of

the court file. The plea agreement included a stipulation to Sex

Offender Intensive Supervision Probation (SOISP). The matter was

set over for sentencing so that probation could complete a

presentence investigation report for Worosello.

¶7 On October 31, 2005, Worosello’s attorney filed a motion for a

new competency evaluation, a motion to withdraw Worosello’s guilty

plea, and a motion to withdraw as Worosello’s attorney. After a

hearing, the district court ordered another competency evaluation

to be completed at the state hospital but reserved ruling on the

other motions.

2
¶8 On April 3, 2006, upon receipt of the new competency

evaluation, the district court made a final determination that

Worosello was competent to proceed. Worosello’s attorney did not

object. Worosello’s attorney then withdrew his motion to withdraw

Worosello’s guilty plea, as well as his motion to withdraw as

Worosello’s attorney. Worosello explicitly agreed on the record to

the withdrawal of both motions.

¶9 On May 15, 2006, the district court sentenced Worosello to ten

years to life in SOISP.

¶ 10 On July 20, 2006, the prosecution moved to revoke

Worosello’s probation. Worosello was arrested and the court

appointed a public defender to represent him. The public defender

expressed interest in filing another motion to withdraw Worosello’s

guilty plea, but never did.

¶ 11 On October 12, 2006, following a contested probation

revocation hearing, the district court found that Worosello had

violated the terms and conditions of his probation. The matter was

set over for sentencing, but the day before the sentencing hearing,

Worosello retained a private attorney to “attempt to withdraw the

guilty plea.” Even though the district court expressed concern over

3
 the “11th hour feel to this maneuvering,” it allowed the public

defender to withdraw and allowed the new attorney to enter his

appearance. The district court continued the case for a sentencing

hearing two days later.

¶ 12 On November 30, 2006, at the rescheduled sentencing

hearing, Worosello’s new private attorney did not seek to withdraw

the plea, and the district court sentenced Worosello to two years to

life in the custody of the Department of Corrections.

¶ 13 Almost ten years later, on December 16, 2015, Worosello filed

a motion entitled “Motion to Vacate Conviction Pursuant to Rule

35(c).” Worosello attached documentation from a doctor who

opined that Worosello was incompetent when he entered into the

plea agreement in this case. The postconviction court denied

Worosello’s Crim. P. 35(c) motion as untimely. The court also

rejected Worosello’s claims on their merits.

II. Analysis

¶ 14 Worosello first contends that his motion is timely because he

labored under a disability that tolled the statute of limitations on

his filing of a Crim. P. 35(c) motion. Alternatively, he argues that

justifiable excuse or excusable neglect excuses the late filing.

4
¶ 15 As to the merits, Worosello argues that plea counsel had a

conflict of interest affecting his representation, that plea counsel

provided ineffective assistance of counsel, and that his plea was not

knowing, intelligent, and voluntary.

¶ 16 We agree with the postconviction court that Worosello’s motion

is untimely. Accordingly, we do not address the merits of

Worosello’s collateral attack on his conviction.

A. The Statute of Limitations Was Not Tolled

¶ 17 Worosello first contends that his motion is timely because he

labors under a disability such that section 13-81-103(1)(a) tolled

the three-year period within which he had to file his Rule 35(c)

motion under section 16-5-402(1). We disagree.

1. Standard of Review and Generally Applicable Legal Principles

¶ 18 Whether one statute may toll the time limitation in another

statute presents a matter of statutory interpretation, which we

review de novo. See Kazadi v. People, 2012 CO 73, ¶ 11.

¶ 19 We interpret the plain language of a statute to give full effect to

the intent of the General Assembly. People v. Griego, 2018 CO 5,

¶ 25. When the statutory language is clear, we apply the plain and

ordinary meaning of the provision. Id. In doing so, we give

5
 consistent, harmonious, and sensible effect to each part of the

statute, rendering no words or phrases superfluous. Id.

2. Discussion

¶ 20 A defendant may move to have his judgment of conviction set

aside on various grounds. See Crim. P. 35(c). A Crim. P. 35(c)

motion must comply with the time limits set forth in section 16-5-

402. Crim. P. 35(c)(3)(I); People v. Wiedemer, 852 P.2d 424, 427

(Colo. 1993). That statute provides that “no person who has been

convicted as an adult . . . under a criminal statute of this or any

other state of the United States shall collaterally attack the validity

of that conviction . . . unless such attack is commenced within the

applicable time period . . . .” § 16-5-402(1). Because Worosello

pleaded guilty to a class 4 felony, he had three years from the date

of sentencing to challenge the validity of his conviction. Id. 1

Worosello was sentenced in 2006. Therefore, his opportunity to

collaterally attack the validity of his conviction under Crim. P. 35(c)

expired in 2009.

1 Worosello did not directly appeal his conviction or sentence.

6
¶ 21 Section 16-5-402 also sets forth the “only exceptions” to its

time limits:

In recognition of the difficulties attending the
litigation of stale claims and the potential for
frustrating various statutory provisions
directed at repeat offenders, former offenders,
and habitual offenders, the only exceptions to
the time limitations specified in subsection (1)
of this section are: (a) [a] case in which the
court entering judgment of conviction or
entering adjudication did not have jurisdiction
over the subject matter of the alleged offense;
(b) [a] case in which the court entering
judgment of conviction or entering
adjudication did not have jurisdiction over the
person of the defendant or juvenile; (c) [w]here
the court hearing the collateral attack finds by
a preponderance of the evidence that the
failure to seek relief within the applicable time
period was caused by an adjudication of
incompetence or by commitment of the
defendant or juvenile to an institution for
treatment as a person with a mental health
disorder; or (d) [w]here the court hearing the
collateral attack finds that the failure to seek
relief within the applicable time period was the
result of circumstances amounting to
justifiable excuse or excusable neglect.

§ 16-5-402(2) (emphasis added).

¶ 22 But Worosello argues that, because he “has been disabled his

entire life,” the “time limitations of section 16-5-402 . . . should be

7
tolled” pursuant to section 13-81-103(1)(a). That statute provides

as follows:

When in any of the statutes of the state of
Colorado a limitation is fixed upon the time
within which a right of action, right of
redemption, or any other right may be asserted
either affirmatively or by way of defense or an
action, suit, or proceeding based thereon may
be brought, commenced, maintained, or
prosecuted and the true owner of said right is
a person under disability at the time such
right accrues, then . . . [i]f such person under
disability is represented by a legal
representative at the time the right accrues, or
if a legal representative is appointed for such
person under disability at any time after the
right accrues and prior to the termination of
such disability, the applicable statute of
limitations shall run against such person
under disability in the same manner, for the
same period, and with the same effect as it
runs against persons not under disability.
Such legal representative, or his successor in
trust, in any event shall be allowed not less
than two years after his appointment within
which to take action on behalf of such person
under disability, even though the two-year
period expires after the expiration of the period
fixed by the applicable statute of limitations.

§ 13-81-103(1)(a). Worosello contends that, because he did not

have and still does not have an appointed legal representative, the

statute of limitations has not run against him.

8
¶ 23 We are not aware of any authority that has applied this

general tolling statute to the limitations period that governs Crim.

P. 35(c) motions. For at least four reasons, we decline to so apply it

today.2

¶ 24 First, by its plain language, section 16-5-402(2) clearly and

unambiguously identifies the “only exceptions” to the time

limitations in section 16-5-402(1), and having a disability as

recognized by section 13-81-103(1)(a) is not one of them. The

General Assembly’s use of the word “only” to describe the

exceptions reflects its intent to create an exclusive list of such

exceptions. People ex rel. N.R., 139 P.3d 671, 683 (Colo. 2006)

(“The word ‘only’ in the statute represents an unequivocal statement

that this list is meant to be exhaustive.”).

¶ 25 Second, although section 16-5-402(2) does include an

exception that deals explicitly with competence, it does not mirror

2As another division previously noted, “there is no authority,
whether statute, rule, or appellate opinion, that recognizes a ‘tolling’
of the time limit contained in section 16-5-402(1).” People v.
Stovall, 2012 COA 7M, ¶ 33 n.3. Cf. People v. Ambos, 51 P.3d 1070,
1071-72 (Colo. App. 2002) (“[T]he timely commencement of a
collateral attack fails to toll the limitations period with respect to
additional postconviction claims not contained in the timely filed
motion.”).

9
 section 13-81-103(1)(a). Instead, it applies where the court hearing

the Rule 35(c) motion “finds by a preponderance of the evidence

that the failure to seek relief within the applicable time period was

caused by an adjudication of incompetence or by commitment of

the defendant . . . to an institution for treatment as a person with a

mental health disorder.” § 16-5-402(2)(c). 3 “Under the rule of

interpretation expressio unius exclusio alterius, the inclusion of

certain items implies the exclusion of others.” Beeghly v. Mack, 20

P.3d 610, 613 (Colo. 2001). By specifying one circumstance where

incompetence excepts a Rule 35(c) motion from the time limits in

section 16-5-402(1), the General Assembly intended that no other

competence-related exception exist.

¶ 26 Third, section 13-81-103(1)(a) was enacted before section 16-

5-402. Dawson v. Reider, 872 P.2d 212, 214 (Colo. 1994) (“[A] later

statute is given effect over an earlier statute.”). We presume the

General Assembly was aware of the general tolling provisions of

section 13-81-103 when it created the time limits for collaterally

3Notably, Worosello does not argue that this exception applies, nor
did he allege in his Crim. P. 35(c) motion that he had been
adjudicated incompetent or committed due to a mental health
disorder.

10
 attacking convictions set forth in section 16-5-402. Leonard v.

McMorris, 63 P.3d 323, 331 (Colo. 2003) (“We presume that the

General Assembly knows the pre-existing law when it adopts new

legislation or makes amendments to prior acts.”). Had it intended

the general tolling provision of section 13-81-103(1) to apply to the

time limits in section 16-5-402(1), it would have said so. Instead, it

created an expressly exhaustive list of exceptions that does not

include section 13-81-103(1)(a). § 16-5-402(2).

¶ 27 Fourth, section 16-5-402 applies specifically to collateral

attacks on conviction, while section 13-81-103 applies generally.

When a general statutory provision conflicts with a specific

provision and the conflict is irreconcilable, the specific provision

prevails as an exception to the general provision. See § 2-4-205,

C.R.S. 2019;4 Martin v. People, 27 P.3d 846, 852 (Colo. 2001). As

the Colorado Supreme Court explained,

The reasoning behind this principle of
statutory construction is a simple matter of
logic. A general provision, by definition, covers
a larger area of the law. A specific provision,

4This is true unless the general provision is adopted later and the
manifest intent is that the general provision prevail. See § 2-4-205,
C.R.S. 2019. As noted, section 16-5-402 was enacted after section
13-81-103.

11
 on the other hand, acts as an exception to that
general provision, carving out a special niche
from the general rules to accommodate a
specific circumstance. . . . If general
provisions prevailed over specific ones, then
specific provisions would cease to function
entirely.

Id.

¶ 28 For this reason, Worosello’s reliance on Southard v. Miles, 714

P.2d 891 (Colo. 1986), is misplaced. In Southard, the Colorado

Supreme Court considered the statute of limitations and statute of

repose applicable to a medical malpractice claim. As is relevant

here, by its own terms, the statute was tolled during any period in

which the person was “under disability,” which included a “mental

incompetent.” Id. at 895-96; see § 13-80-105(1), C.R.S. 1985. But

the statute did not define “mental incompetent” or explain how a

person under disability due to mental incompetence should be

treated for purposes of the statute of limitations. Id. at 896.

Accordingly, the court looked to section 13-81-103(1)(a) for

guidance. Reading the statutes together, the court concluded that

the tolling provisions of section 13-81-103(1) applied to both the

statute of limitations and the statute of repose. Id. at 897-98.

12
¶ 29 In doing so, however, the court explained that section 13-81-

103(1) “is intended to apply to any statute of limitations in this

state . . . unless there exists a special statute pertinent to the claim

that conflicts with the general provisions of section 13-81-103.” Id. at

897 (emphasis added); see also id. at 897 n.8 (discussing § 2-4-205,

C.R.S. 1980). In this case, section 16-5-402 is a special statute

pertinent to collateral attacks on criminal convictions, and it

conflicts with the general provisions of section 13-81-103(1).

Because a conflict exists, the special statute prevails over the

general. See § 2-4-205.

¶ 30 And, unlike the statute in Southard, section 16-5-402 does not

recognize an exception to its time limitation for a “person under

disability.” Instead, it provides an exhaustive list of exceptions,

which does not include those addressed by section 13-81-103(1)(a).

And, as noted above, section 16-5-402 was the later-enacted

statute.

¶ 31 For these reasons, we agree with the postconviction court that

section 13-81-103(1)(a) does not toll the statute of limitations set

forth in section 16-5-402(1) for collateral attacks on convictions.

13
 B. Worosello Failed to Establish Justifiable Excuse or Excusable
Neglect

¶ 32 In the alternative, Worosello argues that his untimely motion

should be accepted because his failure to file for relief before the

three-year limit expired was due to justifiable excuse or excusable

neglect. Again, we disagree.

1. Standard of Review

¶ 33 The postconviction court denied Worosello’s Crim. P. 35(c)

motion without a hearing. Thus, we review de novo whether he

alleged facts that, if true, would constitute justifiable excuse or

excusable neglect and merit a hearing. People v. Chavez-Torres,

2019 CO 59, ¶ 11 (citing Close v. People, 180 P.3d 1015, 1019

(Colo. 2008)).

2. Discussion

¶ 34 A court may deny a Crim. P. 35 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). Additionally, a “trial court may rely on the

plea agreement or the plea hearing transcript in denying [a] Rule

14
 35(c) motion without a hearing on timeliness grounds.”

Chavez-Torres, ¶ 17.

¶ 35 As set forth above, one exception to the time bar in section 16-

5-402(1) is “[w]here the court hearing the collateral attack finds that

the failure to seek relief within the applicable time period was the

result of circumstances amounting to justifiable excuse or

excusable neglect.” § 16-5-402(2)(d). However, it is well settled that

“[a] defendant must allege in a Crim. P. 35 motion facts that, if true,

would establish justifiable excuse or excusable neglect for a belated

filing.” People v. Clouse, 74 P.3d 336, 340 (Colo. App. 2002). If the

defendant fails to make this showing, the postconviction court may

deny the motion without conducting a hearing. People v. Salinas,

55 P.3d 268, 270 (Colo. App. 2002).

¶ 36 Although section 16-5-402(2)(d) does not define justifiable

excuse or excusable neglect, our supreme court has identified a

nonexhaustive list of factors for a postconviction court to consider

when evaluating whether a defendant has alleged sufficient facts to

merit a hearing. See Wiedemer, 852 P.2d at 441-42. These factors

include

15
 (1) whether there are circumstances or outside
influences preventing a challenge to a prior
conviction and the extent to which the
defendant having reason to question the
constitutionality of a conviction investigates its
validity and takes advantage of relevant
avenues of relief that are available; (2) whether
a defendant had any previous need to
challenge a conviction and either knew that it
was constitutionally infirm or had reason to
question its validity; (3) whether a defendant
had other means of preventing the
government’s use of the conviction, so that a
post-conviction challenge was previously
unnecessary; and (4) whether the passage of
time has an effect on the State’s ability to
defend against the challenge.

Close, 180 P.3d at 1019-20 (citing Wiedemer, 852 P.2d at 441-42).

¶ 37 Most of Worosello’s argument pertains to the first and second

Wiedemer factors. In essence, Worosello argues that his “ongoing

incompetency,” “disability,” and “lack of sufficient mental faculties”

have resulted in a complete inability to “process the

unconstitutionality of his conviction,” leading him not to investigate

or timely pursue postconviction relief. Worosello’s argument rests

primarily on his contentions that he was not competent to proceed

when he entered his plea and has not been competent to proceed

since. Thus, couched as justifiable excuse or excusable neglect,

Worosello seeks to relitigate his competence.

16
¶ 38 The record, however, contradicts Worosello’s allegations. It

shows that Worosello underwent multiple competency evaluations

and was found competent to proceed both before he entered his

plea and again before he was sentenced. Additionally, neither

attorney representing Worosello during the probation revocation

proceedings raised the issue of his competence at that time. 5

¶ 39 And significantly — back in 2005 and 2006 — Worosello’s first

attorney filed and then withdrew a motion to withdraw his plea

before sentencing; Worosello’s public defender in the probation

revocation proceedings indicated an intent to file a motion to

withdraw the plea but never did; and Worosello hired a private

attorney for the express purpose of attempting to withdraw the plea

but proceeded to sentencing without filing such motion. Thus, the

record reflects that Worosello previously had reason to question and

took steps to challenge the validity of his plea and, consequently,

his conviction.

5Notably, Worosello does not allege ineffective assistance of counsel
as to the public defender or as to private counsel who entered an
appearance during the probation revocation proceedings.

17
¶ 40 As to the third Wiedemer factor, Worosello argues that he

never had reason to seek to prevent the government’s use of his

conviction. However, his conviction is why he spent the last decade

of his life in the custody of the Department of Corrections.

¶ 41 As to the fourth Wiedemer factor, Worosello argues that the

passage of years has not limited the prosecution’s ability to defend

against the challenge in any meaningful way. However, Worosello’s

Rule 35(c) motion itself established that the prosecution would be

adversely affected. It stated that neither of the two teenage girls

from the swimming pool, who are now adult women, remembers

being offered beer or being touched by Worosello. As the

postconviction court correctly stated, “[c]learly the passage of time

has not inured to the benefit of the People and would only serve to

negatively affect the ability of the People to respond to the

challenges now presented by the Defendant.”

¶ 42 In the end, we agree with the postconviction court’s conclusion

that Worosello failed to allege facts sufficient to warrant a hearing

on justifiable excuse or excusable neglect.

18
 III. Conclusion

¶ 43 Because we conclude that Worosello’s Crim. P. 35(c) motion

was untimely, we do not reach the merits of his claims. So, we

affirm the postconviction court’s order denying Worosello’s untimely

Rule 35(c) motion.

JUDGE DAILEY and JUDGE RICHMAN concur

19