County District Court No. 00CR57 Honorable David C. Taylor,
Cynthia H. Coffman, Attorney General, Patrick A. Withers,
Assistant Attorney General, Denver, Colorado, for
Zimmerman LLP, Jennifer Zimmerman, Sydney Dolan, Boulder,
Colorado, for Defendant-Appellant
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.
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
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
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).
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