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People v. Vargas-Reyes

Court of Appeals of Colorado, Fourth Division

December 27, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Gustavo Adolfo Vargas-Reyes, Defendant-Appellant.

          Gilpin County District Court No. 00CR57 Honorable David C. Taylor, Judge

          Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Dolan Zimmerman LLP, Jennifer Zimmerman, Sydney Dolan, Boulder, Colorado, for Defendant-Appellant

          OPINION

          TOW JUDGE.

          ¶ 1 Defendant, Gustavo Adolfo Vargas-Reyes, appeals the denial of his second Crim. P. 35(c) motion, which he filed seventeen years after the judgment of conviction and eleven years after his first Crim. P. 35(c) motion. However, before resolving Vargas-Reyes's claim, we must first determine whether he has sought relief in the correct court. Because we determine that his motion was resolved by a county court judge, we lack jurisdiction and thus dismiss the appeal.

         I. Background

         ¶ 2 In 2000, the prosecution charged Vargas-Reyes with possession of a schedule II controlled substance, a class 4 felony, and lingering in the gaming area of a casino by a person under twenty-one years of age, a class 2 misdemeanor. The prosecution filed the information in county court, pursuant to section 16-5-101(1)(c), C.R.S. 2018.

         ¶ 3 At the dispositional hearing, Vargas-Reyes, represented by counsel (plea counsel), pleaded guilty to two misdemeanors: the lingering in the gaming area charge and an added count of attempted possession of a schedule V controlled substance, and he received a suspended thirty-day jail sentence and twenty-four hours of community service. Pursuant to the plea agreement, the People filed a motion to dismiss the felony charge, which the court granted.

         ¶ 4 Six years later, Vargas-Reyes, represented by new counsel (first postconviction counsel), filed his first Crim. P. 35(c) motion (the 2006 motion). In it, he asserted that the United States Citizenship and Immigration Services had recently denied his application to adjust his status to a lawful permanent resident because of his misdemeanor drug conviction in this case. He also alleged that, because of that drug conviction, he was subject to deportation from the United States. He claimed that his guilty plea was not voluntary, knowing, and intelligent because his plea counsel never asked him about his immigration status and never informed him of the immigration consequences of his guilty plea.

         ¶ 5 The evidentiary hearing on the motion was presided over by Gilpin County Judge Frederic Rodgers, the same judge who had accepted the plea and imposed the sentence six years earlier. The court determined that it would hold a bifurcated proceeding in which it would first address whether the motion was time barred before addressing the merits. At the conclusion of the first stage of the proceeding, the court denied the motion as time barred on the ground that Vargas-Reyes had not shown justifiable excuse or excusable neglect for the late filing. That order was never appealed.

         ¶ 6 In 2017, Vargas-Reyes hired new postconviction counsel, and filed the Crim. P. 35(c) motion at issue (the 2017 motion). In this new postconviction motion, he alleged that he had recently been charged in federal court with illegal entry into the United States. He reasserted his claim that his plea counsel had been ineffective by not informing him of the immigration consequences of his guilty plea, but this time included an allegation that plea counsel had made "affirmative misrepresentations" to him. He also claimed that his first postconviction counsel had provided ineffective assistance by, among other things, failing to object to the use of a bifurcated proceeding at the 2006 evidentiary hearing.

         ¶ 7 Gilpin County Judge David Taylor summarily denied Vargas-Reyes's second Crim. P. 35(c) motion in a written order on August 2, 2017. Vargas-Reyes then filed this appeal within the time period provided in C.A.R. 4(b).[1]

         II. Appellate Jurisdiction

         ¶ 8 The People suggest that we may not have jurisdiction to hear this appeal because the appeal might be from the county court, rather than the district court, in Gilpin County. This court issued an order to show cause on the jurisdictional issue, and Vargas-Reyes filed a response. The motions ...


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