People v. Xiong
| Decision Date | 26 June 1997 |
| Docket Number | No. 96CA1658,96CA1658 |
| Citation | 940 P.2d 1119 |
| Parties | 21 Colorado Journal 905 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Xue XIONG, Defendant-Appellant. . V |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, for Plaintiff-Appellee.
Clayton & Stone, L.L.C., April Bennett Stone, Heather R. Younger, Boulder, for Defendant-Appellant.
Opinion by Judge TAUBMAN.
Defendant, Xue Xiong, appeals from a trial court order denying his motion for post-conviction relief. We affirm.
Pursuant to a plea agreement, defendant pleaded guilty to one count of second degree assault and one count of crime of violence. On June 15, 1993, he was sentenced to the Department of Corrections for a term of five years.
More than three years later, on July 23, 1996, defendant filed a motion for post-conviction relief seeking to vacate his conviction on the grounds that his guilty plea was involuntary and was the result of the ineffective assistance of his counsel. The trial court denied the motion without a hearing, ruling, in part, that it was "barred by the limitations in C.R.S. 16-5-402," and that it "failed to allege, aver, or otherwise indicate ... any exception to the time limitations such as justifiable excuse or excusable neglect...."
On appeal, defendant contends that the trial court erred in denying his motion without first conducting a hearing to determine whether the untimely filing was a result of justifiable excuse or excusable neglect. We perceive no error.
If a defendant's motion for post-conviction relief is untimely under § 16-5-402, C.R.S. (1986 Repl.Vol. 8A), the trial court may deny the motion without conducting a hearing if the defendant has failed to allege facts which, if true, would establish justifiable excuse or excusable neglect. See People v. Wiedemer, 852 P.2d 424 (Colo.1993). Indeed, it is appropriate for the trial court to raise the timeliness issue sua sponte. People v. Padilla, 878 P.2d 4 (Colo.App.1993).
We recognize that in People v. Lanford, 867 P.2d 50, 52 (Colo.App.1993), a division of this court held that: "If a court raises the time limitation of § 16-5-402 sua sponte, it must offer the defendant the opportunity to show why the motion should not be denied by application of that time limitation." However, as we read Lanford, its holding is limited to situations where the defendant's post-conviction motion was filed before Wiedemer was announced.
In Wiedemer, the supreme court held that, in a Crim. P. 35(c) motion...
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People v. Kadell
...court need not hold a hearing on a defendant's request to invoke the excusable neglect exception in every instance. People v. Xiong , 940 P.2d 1119, 1119 (Colo. App. 1997) (A court may summarily deny an untimely request "if the defendant has failed to allege facts which, if true, would esta......
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People v. Clouse
...excuse or excusable neglect for a belated filing. People v. Wiedemer, 852 P.2d 424, 440 n. 15 (Colo.1993); People v. Xiong, 940 P.2d 1119, 1119-20 (Colo.App.1997). In People v. Wiedemer, supra, 852 P.2d at 441-42, the supreme court set forth the following factors to consider in assessing th......
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People v. Slusher
...justifiable excuse or excusable neglect. Therefore, the court did not err in denying the motion without a hearing. See People v. Xiong, 940 P.2d 1119 (Colo. App.1997). The order is Judge RULAND and Judge ROTHENBERG concur. ...
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People v. Metcalf, s. 97CA1745
...need we remand to allow the trial court to consider such an argument. See People v. Abad, 962 P.2d 290 (Colo.App.1997); People v. Xiong, 940 P.2d 1119 (Colo.App.1997); see also People v. Wiedemer, supra (when the statutory period for filing a Crim. P. 35(c) motion has passed, defendant must......