Rehearing Denied July 29, 2019
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 15CA1780
Attorneys for Petitioner: Philip J. Weiser, Attorney General,
Joseph G. Michaels, Senior Assistant Attorney General,
for Respondent: The Noble Law Firm, LLC, Antony Noble,
Matthew Fredrickson, Lakewood, Colorado
Is a noncitizen defendant entitled to a hearing on the
timeliness of his Crim. P. 35(c) postconviction motion when
he invokes the justifiable excuse or excusable neglect
exception and alleges that plea counsel provided him
erroneous advice regarding the immigration consequences of
his plea? The answer generally depends on the specific
allegations set forth in the motion. However, when the plea
agreement or the plea hearing transcript is submitted, the
trial court should consider it in conjunction with the
In this case, we hold that Frederico Alvarado Hinojos is not
entitled to a hearing. The factual allegations in his motion
(which we must assume are true), when considered in
conjunction with the plea agreement, are insufficient to
establish justifiable excuse or excusable neglect for failing
to collaterally attack the validity of his misdemeanor
conviction within the applicable eighteen-month limitations
period. The immigration advisement contained in the plea
agreement, at a minimum, gave Alvarado Hinojos reason to
question the accuracy of his plea counsels advice regarding
the immigration consequences of the plea. Thus, even taking
at face value the allegations in his motion, he was on notice
at the time of his plea that he needed to diligently
investigate his counsels advice and, if appropriate, file a
timely motion challenging the validity of his conviction.
In the companion case we announce today, People v.
Chavez-Torres, 2019 CO 59, 442 P.3d 843, we reach the
opposite conclusion because we determine that the allegations
set forth there, when considered together with the plea
agreement and the plea hearing transcript, are sufficient to
establish justifiable excuse or excusable neglect.
Chavez-Torres alleged that his plea counsel provided him no
advice regarding the immigration consequences of the plea and
that he had no reason to question or investigate counsels
omission. Further, although he was not required to do so,
Chavez-Torres submitted the plea agreement and the plea
hearing transcript with his motion, and neither referenced
the immigration consequences of his plea.
The court of appeals ruled in this case that Alvarado
Hinojoss motion merited a hearing on the applicability of
the justifiable excuse or excusable neglect exception. We
disagree and therefore reverse its judgment. We remand for
further proceedings consistent with this opinion.
I. Factual and Procedural History
Alvarado Hinojos, a citizen of Mexico, immigrated to the
United States in 1991 with his wife and two daughters.
Sixteen years later, in 2007, he pled guilty to menacing with
a deadly weapon (a class five felony) and third-degree
assault (a class one misdemeanor). The plea agreement
included the following immigration advisement:
I understand that if I am not a citizen of the United States
and I plead guilty or nolo contendere ("no
contest") to a crime, my plea may result in deportation
and/or exclusion from the United States or denial of
naturalization in the United States.
Consistent with the plea agreement, the trial court imposed a
two-year deferred judgment and sentence on the felony count
and a two-year sentence to probation on the misdemeanor
count. Alvarado Hinojos successfully completed both his
deferred judgment and his probation sentence. Therefore, in
2009, the trial court dismissed the guilty plea to the felony
count and terminated the probation sentence on the
In July 2015, Alvarado Hinojos filed a motion for
postconviction relief in which he collaterally attacked his
third-degree assault conviction under Crim. P.
Hinojos asserted that his plea was invalid because he
received ineffective assistance from his plea counsel. More
specifically, Alvarado Hinojos alleged that: (1) his plea
counsel had advised him that his guilty plea "would not
have adverse immigration consequences"; (2) he pled
guilty based on his plea counsels advice; (3) he had
"recently" consulted an immigration attorney and
had discovered that his guilty plea does have immigration
consequences; (4) his guilty plea "renders him
inadmissible and therefore prevents him from remaining in the
United States"; and (5) had he not pled guilty, "he
could have applied for adjustment to" his current
immigration status. Alvarado Hinojos acknowledged that he
filed his motion after the expiration of the eighteen-month
deadline in section 16-5-402(1), C.R.S. (2018), which governs
collateral attacks on the validity of misdemeanor
convictions. But he maintained that the justifiable excuse or
excusable neglect exception in subsection (2)(d) of the
statute applied. Alvarado Hinojos submitted a copy of the
plea agreement with his motion. The prosecution objected to
the motion, arguing that it was untimely and, if timely, then
meritless, and that, in any event, the trial court lacked
The trial court denied Alvarado Hinojoss Rule 35(c) motion
without a hearing, ruling that it was filed after the
applicable limitations period and that the facts alleged, if
true, would not constitute justifiable excuse or excusable
neglect pursuant to subsection (2)(d). Alvarado Hinojos
appealed, and a division of the court of appeals reversed in
a split decision. People v. Alvarado Hinojos, No.
15CA1780, ¶ 25, 2017 WL 3912757 (Colo.App. Sept. 7, 2017).
The majority reasoned that Alvarado Hinojoss factual
allegations, if true, established that he had received
incorrect advice from plea counsel, that he had no reason to
question the validity of his conviction until he learned from
an immigration attorney that he had been erroneously advised
by plea counsel, and that it would be unreasonable to expect
a defendant who receives incorrect advice to file a
collateral attack on a conviction just in case the plea
results in adverse immigration consequences. Id. at
¶¶ 18, 21-25. Therefore, concluded the majority, Alvarado
Hinojos alleged facts which, if true, "could support a
finding of justifiable excuse or excusable neglect."
Id. at ¶ 25.
In his dissent, Judge Dailey explained that he was persuaded
by the prosecutions contention that "the use of [an
ineffective-assistance-of-counsel] merits argument
to procedurally circumvent the time period
prescribed in section 16-5-402 defeats the very purpose of
section 16-5-402s time limits." Id. at ¶ 32
(Dailey, J., dissenting) (emphases added). Alternatively,
Judge Dailey observed that the immigration advisement in the
plea agreement gave Alvarado Hinojos reason to question the
accuracy of his plea counsels advice. Id. at ¶ 35.
Thus, concluded Judge Dailey, at a minimum, the plea
agreement should have placed Alvarado Hinojos on notice
"that counsels advice may need to be subjected to
further scrutiny" and investigation, and that, if
appropriate, a motion seeking postconviction relief may need
to be filed within the applicable limitations period.
The prosecution petitioned for certiorari review, and we
granted the petition.
We start by setting forth the controlling standard of review.
We then discuss the time bar in section 16-5-402(1) and the
justifiable excuse or excusable neglect exception in section
16-5-402(2)(d). After examining these provisions, we
transition to our decision in People v. Wiedemer,
where we interpreted the subsection (2)(d) exception. 852
P.2d 424, 440-42 (Colo. 1993). We end by applying
Wiedemer to the facts alleged by Alvarado Hinojos,
which we must assume are true, and conclude that, when
considered in conjunction with the plea agreement, they would
not establish justifiable excuse or excusable neglect.
Accordingly, we hold that Alvarado Hinojos is not entitled to
A. Standard of Review
Whether the facts alleged, if true, would constitute
justifiable excuse or excusable neglect pursuant to section
16-5-402(2)(d) so as to entitle the defendant to a hearing is
a question of law. Close v. People, 180 P.3d 1015,
1019 (Colo. 2008). Therefore, our review is de novo.
Section 16-5-402(1) establishes an eighteen-month limitations
period to bring a collateral attack against the validity of a
misdemeanor conviction. Subsection (2) provides four
exceptions to that time bar, one of which is relevant
(d) Where 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.
Hinojos invoked this exception, asserting justifiable excuse
or excusable neglect for filing his motion after the
limitations period expired.
People v. Wiedemer
In Wiedemer, we observed that a defendant who
invokes the justifiable excuse or excusable neglect exception
in subsection (2)(d) is not required to provide evidentiary
support for his allegations. 852 P.2d at 440 n.15. Instead,
his motion must allege facts which, if true, would entitle
him to relief from the time bar. Id. To determine
the applicability of this exception, the trial court has to
consider "the particular facts of [the] case,"
mindful of "the overriding concern" under the Due