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Relief in Colorado

Understanding the appeals process in Colorado can be crucial in ensuring justice. This article explores the stages and considerations in the appeals process in Colorado.

When legal disputes are resolved in court, it is not always the end of the story. Sometimes, the parties involved feel that the verdict was not just and wish to challenge the decision. This is where the appeals process comes into play.

In Colorado, as in other states, the appeals process is essential to the judicial system. It ensures that cases are reviewed and that justice is served. This article will provide an in-depth overview of the appeals process in Colorado, including its stages, considerations, and other relevant information.

Colorado Post-Conviction Relief Guide

Are you challenged by a past conviction in Colorado and hoping for relief? The term ‘Colorado post-conviction relief’ might be the beacon of hope you’re looking for.

This guide explains what you need to know, offering a direct path to potentially overturning your sentence or conviction. In clear steps, we’ll walk you through eligibility, procedures, and critical strategies to pursue justice. Start your journey to understanding post-conviction relief right here.

Key Points

  • Colorado post-conviction relief allows for judicial reconsideration of criminal convictions and may result in a new trial, reduced sentence, or overturned verdict. Timing, comprehensive detailing, and inclusion of all grounds in the initial filing are critical to this process.

  • Ineffective legal representation and newly discovered evidence, such as DNA, can support post-conviction relief, and changes in law or constitutional rights violations can justify reevaluating a case.

  • Post-conviction relief involves several stages, including the District Court’s review and potential appeal to the Appellate Court. Other remedies, including habeas corpus petitions and conditional release, offer additional avenues for challenging wrongful convictions.

Understanding Post-Conviction Relief in Colorado

Post-conviction relief in Colorado allows for the reevaluation of the validity of criminal convictions. Through a Rule 35 motion, a court is requested to reconsider a judgment or sentence. A successful motion could lead to various outcomes, including setting aside the judgment, reducing the sentence, or securing a new trial. To pursue post-conviction relief, one must follow legal procedures and guidelines.

However, this is only one of the options; alternatives include appeals to higher courts, new trial motions, sentence reconsideration motions, and federal writs of habeas corpus. 

The Essence of Post Conviction Relief

Post-conviction relief, often referred to as a Rule 35 motion in Colorado, is a legal procedure that allows convicted individuals to challenge their verdicts or sentences.

This process allows asserting that someone’s constitutional rights were violated during their trial or sentencing. It opens doors for those who argue that an error within the judicial system impacted their conviction or punishment.

This form of relief can be pursued on several grounds, including illegal convictions or sentences, erroneous application of the law, lack of jurisdiction by the court over a case, newly discovered evidence with material significance, and fully served sentences, among others, ineffective assistance of counsel, and prosecutorial misconduct.

These provisions offer a ray of hope for rectifying injustices post-conviction.

Outcomes of Pursuing Relief

In the pursuit of justice, judges in Colorado have the authority to grant post-conviction relief, with options ranging from vacating the judgment to granting a new trial or imposing a new sentence. The district court plays an instrumental role in these proceedings, granting powers to vacate a judgment, set aside a sentence, or even conduct a new trial.

Thus, defendants can file motions for a new trial or motions for sentence reconsideration, potentially leading to conditional release if it’s deemed that the original trial was unjust, the sentence excessive, or an illegal sentence was imposed.

Filing Your Motion for Relief

Submitting a post-conviction relief motion in Colorado requires accurate and comprehensive detailing of the reasons for seeking judicial review on a specific application form. The stakes are high; presenting all grounds for relief in a single motion is critical, as subsequent motions are likely to be denied if the grounds could have been included in the initial filing.

Preparing Your Motion

The journey to post-conviction relief starts with a detailed four-page application, the primary document required to file a post-conviction relief motion in Colorado. This application can be accompanied by additional pages that comprehensively explain the grounds for judicial review.

Remember, every detail matters; it’s crucial to list all applicable grounds for relief in one motion, as failing to do so might lead to denying any grounds omitted.

Meeting the Filing Deadline

Time waits for no one, and this is particularly true when it comes to filing a 35(c) petition for post-conviction relief in Colorado. Whether it’s a class 1 felony, with no time limit for filing, or petty offenses with a 6-month window, meeting the filing deadlines is crucial to avoid losing the opportunity for relief. Punctuality is indeed a virtue when it comes to filing post-conviction relief motions.

Grounds for Seeking Post Conviction Relief

Judges weigh several factors before granting a 35(c) motion in Colorado. They consider the timeliness of the filing, whether there are adequate factual or legal grounds for relief, and if the claims made have merit based on the case’s files and records.

The judge also looks at whether granting relief serves the interests of justice, guiding their decision to potentially vacate judgments, order new trials, modify sentences, or discharge individuals.

The time frame for a judge to make a decision varies. However, statute limitations dictate that petitions must be filed within specific periods post-conviction: six months for petty offenses, eighteen months for misdemeanors, three years for felonies excluding class 1 offenses which may be filed at any time.

Once submitted within these deadlines, judges take time necessary to thoroughly review each case’s particulars before making their rulings. This process ensures decisions are fair and justly serve both public interest and individual rights under Colorado law.

Ineffective Assistance of Counsel

Ineffective assistance of counsel is a common ground for post-conviction relief in Colorado, as well as in other jurisdictions.

To succeed on a claim of ineffective assistance of counsel in Colorado, a defendant must satisfy the two-pronged test established by the U.S. Supreme Court in Strickland v. Washington.

This test evaluates whether the defendant’s counsel’s performance was deficient and whether this deficiency prejudiced the defense. Here’s a detailed explanation of how this applies in Colorado appeals:

Strickland Test for Ineffective Assistance of Counsel

  1. Deficient Performance:

    • Objective Standard of Reasonableness: The defendant must show that their attorney’s performance fell below an objective standard of reasonableness, meaning that the attorney’s actions or inactions were not within the range of competence demanded of attorneys in criminal cases. This can include:

      • Failing to investigate the facts of the case adequately.

      • Failing to interview or call crucial witnesses.

      • Failing to file necessary motions or objections.

      • Providing incorrect legal advice or misinformation.

      • Not preparing adequately for trial or sentencing.

    • Professional Norms: The evaluation of the attorney’s performance must be made in light of prevailing professional norms and practices.

  2. Prejudice:

    • Reasonable Probability of Different Outcome: The defendant must demonstrate that there is a reasonable probability that, but for the attorney’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

    • Impact on Fair Trial: The errors must be shown to have deprived the defendant of a fair trial, which is one whose result is reliable.

Application in Colorado Appeals

In Colorado, an ineffective assistance of counsel claim can be raised in various stages of the criminal process:

1. Direct Appeal: Record-Based Claims: 

  • If the claim of ineffective assistance is based on the trial record, it can be raised on direct appeal. However, these claims are often not raised at this stage because the trial record usually does not contain sufficient information to establish ineffective assistance.

2. Post-Conviction Relief (Rule 35(c)):

  • Fact-Based Claims: Most ineffective assistance of counsel claims are raised through a Rule 35(c) motion for post-conviction relief. This allows for the development of a factual record through an evidentiary hearing.

  • New Evidence: The defendant can present new evidence, such as affidavits or testimony, that was not part of the original trial record. This is essential for claims involving failures to investigate, call witnesses, or pursue certain defenses.


3. Evidentiary Hearing:

  • Detailed Examination: The court may hold an evidentiary hearing where both the defendant and the attorney can testify about the alleged deficiencies. This hearing allows the court to assess the credibility of the witnesses and the validity of the claims.

  • Expert Testimony: In some cases, expert testimony on prevailing professional norms and the reasonableness of the attorney’s performance may be presented.

Common Scenarios of Ineffective Assistance

  • Failure to Investigate: The attorney did not investigate the case thoroughly, missing critical evidence or failing to interview important witnesses.

  • Failure to Communicate: The attorney did not adequately communicate with the defendant about the case strategy, plea offers, or other important decisions.

  • Trial Errors: The attorney failed to make crucial objections during trial, did not request necessary jury instructions, or inadequately cross-examined witnesses.

  • Sentencing Issues: The attorney did not properly advocate for the defendant during sentencing, such as failing to present mitigating evidence or argue for a lesser sentence.

Judicial Review

  • Court’s Role: The court will review the entire record, including any new evidence presented during the post-conviction proceedings, to determine whether the defendant has met the Strickland standard.

  • Burden of Proof: The defendant bears the burden of proving both deficient performance and prejudice by a preponderance of the evidence.

  • An ineffective assistance of counsel claim in Colorado requires demonstrating both a deficiency in the attorney’s performance and that this deficiency resulted in prejudice to the defendant. This claim is typically raised through a Rule 35(c) motion for post-conviction relief, where a detailed factual record can be developed to support the allegations.

Newly Discovered Evidence

Imagine uncovering new evidence that could prove your innocence after a conviction. Cases of DNA evidence exonerations have shown that newly discovered evidence can significantly alter post-conviction relief outcomes. The admissibility of such evidence is determined by a four-part test assessing whether the evidence could have been obtained with reasonable diligence before the trial, among other factors.


DNA evidence or another individual’s confession could effectively cast doubt on a defendant’s guilt, mainly if the original conviction rested on circumstantial evidence. Such new evidence obligates prosecutors to disclose it and rectify the conviction if necessary. This situation is expressly provided for in C.R.S. 16-23-101.

The Role of the District Court and Appellate Court

The journey of post-conviction relief in Colorado moves through two critical stages: the District Court and the Appellate Court. The District Court initially reviews and rules on post-conviction relief motions, examining the evidence and legal arguments presented. If the District Court denies the motion, the defendant has the right to appeal to the Appellate Court.

The Appellate Court then reviews the District Court’s decision for any legal errors, focusing on the application of the law rather than the facts of the case.

District Court's Involvement

The District Court plays a central role in the post-conviction relief process. The hearings are conducted in the same court with general criminal jurisdiction, commonly the court where the conviction and sentencing were initially pronounced.

Appellate Court Review

If the District Court’s decision doesn’t go in your favor, all is not lost. This development is where the Appellate Court comes into play. The Appellate Court reviews the District Court’s decision for any legal errors, offering a second chance at justice.

This review focuses on the application of the law rather than the facts of the case, necessitating an attorney with specialized skills in appellate advocacy.

What Happens After Filing: The Court's Decision Process

What happens next after you file your motion for post-conviction relief? The court’s decision process involves a hearing phase where both the prosecution and the defense present their arguments and evidence in court.

Following the court’s acceptance of the 35(c) motion, the prosecution has 35 days to provide a written response. After that, the defendant has 21 days to submit a written reply. Typically, the court reaches a final decision within 63 days after the post-conviction relief hearing.

The Hearing Phase

The hearing phase of post-conviction relief in Colorado is a critical stage. During this phase, the applicant (petitioner) and the legal representative of the respondent (state/government) participate in arguing the case. Both the prosecution and the defense are allowed to present their arguments and evidence in court.

This phase is crucial as it allows the court to evaluate the motion’s merits and make an informed decision.

Judge's Decision-Making Criteria

In Colorado, when considering a post-conviction appeal, judges typically evaluate several criteria to determine whether relief should be granted. These criteria are guided by Colorado’s Rules of Criminal Procedure and relevant case law. Here are some key considerations:

  1. Jurisdiction and Timeliness:

    • Whether the court has jurisdiction to hear the appeal.

    • Whether the petition for post-conviction relief was filed within the statutory time limits.

  2. Grounds for Relief:

    • Whether the motion asserts valid grounds for relief, such as constitutional violations, ineffective assistance of counsel, newly discovered evidence, or other claims that could warrant a new trial or sentence modification.

  3. Merits of the Claims:

    • Whether the claims presented are substantively valid and supported by credible evidence.

    • Whether there is a reasonable probability that the outcome of the original trial would have been different if the alleged errors had not occurred.

  4. Procedural Default:

    • Whether the petitioner failed to raise the issues during the original trial or direct appeal, and if so, whether there is a justifiable reason for this failure (e.g., newly discovered evidence or ineffective assistance of counsel).

  5. Exhaustion of Remedies:

    • Whether the petitioner has exhausted all available remedies in the state courts before seeking post-conviction relief.

  6. Factual Basis:

    • Whether the motion includes a sufficient factual basis to support the claims made.

    • Whether an evidentiary hearing is necessary to resolve disputed facts.

  7. Prejudice:

    • Whether the petitioner can demonstrate that any errors or constitutional violations resulted in actual prejudice affecting the trial’s outcome.

  8. Legal Standards:

    • Whether the petitioner has met the burden of proof required under the relevant legal standards for post-conviction relief.

  9. Interests of Justice:

    • Whether granting relief serves the interests of justice and ensures a fair trial process.

  10. State and Federal Law Compliance:

    • Whether the decision complies with both state and federal constitutional standards and precedents.


These criteria help ensure that post-conviction appeals are considered carefully and fairly, providing a mechanism for correcting potential miscarriages of justice while maintaining the integrity of the judicial process.

Additional Remedies Beyond Rule 35(c) Motions

In Colorado, beyond a Rule 35(c) motion, several additional remedies are available for individuals seeking relief from their convictions or sentences. These remedies provide alternative or supplementary avenues to challenge the legality of their detention or address other issues related to their cases. Here are some of the key remedies:

  1. Rule 35(a) Motion:

    • Correction of an illegal sentence. This rule allows for the correction of a sentence that is illegal or imposed in an illegal manner.

  2. Rule 35(b) Motion:

    • Reduction of sentence. This rule permits a defendant to request a reduction in their sentence within 126 days after the sentence is imposed or probation is revoked.

  3. Direct Appeal:

    • Challenging the conviction or sentence on direct appeal to a higher court, usually focusing on errors that occurred during the trial or sentencing.

  4. Habeas Corpus (C.R.C.P. 106):

    • A petition for habeas corpus challenges the legality of the petitioner’s detention. It is often used when other remedies are unavailable or have been exhausted.

  5. Crim. P. 32.2 Motion:

    • A motion for a new trial based on newly discovered evidence or other grounds such as juror misconduct or ineffective assistance of counsel, which must typically be filed within a specific time frame after the verdict.

  6. Motion to Reconsider Sentence:

    • A request to the court to reconsider the sentence imposed, often based on new information or changes in circumstances since the original sentencing.

  7. Writ of Error Coram Nobis:

    • An uncommon remedy that allows the court to correct its original judgment due to a fundamental error that did not appear in the record and would have likely resulted in a different outcome if known at the time of trial.

  8. Federal Habeas Corpus (28 U.S.C. § 2254):

    • After exhausting state remedies, a prisoner can file a federal habeas corpus petition challenging the constitutionality of their state court conviction or sentence.

  9. Motion for Expungement or Sealing of Records:

    • Requests to expunge or seal criminal records, which can provide relief by limiting public access to the conviction records under certain conditions.

  10. Clemency or Pardon:

    • An application for executive clemency, including a pardon, commutation of sentence, or reprieve, which is granted at the discretion of the governor.


These remedies provide multiple pathways for addressing potential injustices or errors in the criminal justice process, ensuring that individuals have opportunities to seek relief and challenge the legality of their convictions or sentences.

Habeas Corpus and Its Role

Habeas corpus, a Latin term meaning ‘you may have the body,’ provides a legal pathway to challenge wrongful convictions or illegal imprisonment in Colorado. A federal writ of habeas corpus, filed in Colorado, functions similarly to a Rule 35(c) motion but is addressed in federal court.

Thus, understanding eligibility criteria, adhering to filing deadlines, and preparing necessary documents without error becomes crucial when filing a habeas corpus petition.

Legal Representation

Navigating the complex post-conviction relief process can be daunting. Having a legal expert by your side can make all the difference. Legal representation is crucial for understanding the complexities of the process, ensuring the protection of rights, and increasing chances of success.

Post-conviction attorneys, with their detailed knowledge of state and federal laws, can advocate on behalf of their clients and rectify past case errors. The complex and costly nature of the post-conviction relief process makes dedicated and skilled legal representation all the more necessary.

McClintock Law Firm, LLC offers free consultations, providing invaluable insights into legal options and the potential success of the case in criminal appeals.

Choosing the Right Attorney

The choice of an attorney can significantly influence the outcome of your post-conviction relief case. An attorney who specializes in post-conviction relief can provide:

  • Expert guidance

  • Representation

  • Advice on gathering evidence

  • Constructing a compelling legal argument


Choosing a law office specializing in Colorado criminal appeals will connect you with the specific legal experience you need. During consultations, you can evaluate the cost and expertise of the appellate attorneys under consideration to make a financially informed decision.

Benefit of Free Consultations

Free consultations offer a vital opportunity to:

  • Discuss the specifics of your case with a legal expert

  • Gain insight into potential outcomes and the likelihood of achieving a successful result

  • Assess the strength of your claim for post-conviction relief

  • Make informed decisions about pursuing legal action without initially investing resources


These consultations provide valuable information and help you make the best decisions for your case. They allow individuals to understand their options and take the first step toward justice without initial financial commitment.


Navigating the post-conviction relief process in Colorado may seem like navigating a labyrinth. However, with the right guidance, understanding, and legal representation, it can be a journey that can lead to justice. Whether through a 35(c) motion, habeas corpus petition, or conditional release, there are multiple paths to challenging convictions or sentences.

Remember, seeking professional legal help isn’t just a choice; it’s necessary in this complex process. We invite you to take advantage of a free consultation with our law office to understand your legal options fully. So, take that first step, arm yourself with knowledge, and remember that every fight for justice, no matter how daunting, is worth fighting.


  • Take your completed form to the court and give it to the clerk to file your case. There is no filing fee. If the court does not deny your request immediately, the court will send a copy of your motion to the prosecuting attorney and they will have an opportunity to respond.

  • The most common type of post-conviction relief is a series of motions, including a Motion for a New Trial and a Motion to Vacate Judgment. These motions are filed to challenge a conviction or sentence.

  • In Colorado, post-conviction relief is a legal process that reevaluates the validity of criminal convictions, typically through a 35(c) motion requesting the court to reconsider a judgment or sentence.

  • Post-conviction relief deals with new issues not raised during the trial or previous appeals, while a direct appeal requests a higher court to review the original case for legal errors. Understanding the distinction between the two processes is essential.

  • A habeas corpus petition is a legal tool used to challenge wrongful convictions or illegal imprisonment, filed in federal court to address such concerns.

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