of Appeals No. 16CA1569 Douglas County District Court No.
04CR800 Honorable Paul A. King, Judge
J. Weiser, Attorney General, Brenna A. Brackett, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jason C. Middleton,
Deputy State Public Defender, Denver, Colorado, for
1 In this appeal from the postconviction court's order
denying Defendant James Worosello's Crim. P. 35(c)
motion, we consider whether section 13-81-103(1)(a), C.R.S.
2019, tolls the statute of limitations set forth in section
16-5-402(1), C.R.S. 2019, for collateral attacks on
convictions. As an issue of first impression, we conclude
that it does not. We also conclude that Worosello failed to
allege facts that, if true, would constitute justifiable
excuse or excusable neglect. Because his Crim. P. 35(c)
motion was untimely, we affirm. I. Background
2 In November 2004, the prosecution charged Worosello with
two counts of enticement of a child and two counts of
contributing to the delinquency of a minor arising from his
interactions with two teenage girls at a swimming pool.
3 Because the issue of Worosello's competence is central
to this appeal, we set forth the dates and results of the
competency evaluations, hearings, and determinations in some
4 In December 2004, Worosello underwent a private mental
health evaluation, which determined he was not competent to
proceed. The prosecution requested and was granted an
additional evaluation through the state hospital system. The
state hospital evaluators determined that Worosello was
5 In June 2005, the district court held a competency hearing.
It found that Worosello "suffer[ed] from mental
defect" but that he was competent to proceed.
6 On August 1, 2005, Worosello pleaded guilty to one count of
enticement of a child, a class 4 felony. At that time, the
district court again found that Worosello was competent
considering its observations of Worosello during the plea
hearing and its review of the court file. The plea agreement
included a stipulation to Sex Offender Intensive Supervision
Probation (SOISP). The matter was set over for sentencing so
that probation could complete a presentence investigation
report for Worosello.
7 On October 31, 2005, Worosello's attorney filed a
motion for a new competency evaluation, a motion to withdraw
Worosello's guilty plea, and a motion to withdraw as
Worosello's attorney. After a hearing, the district court
ordered another competency evaluation to be completed at the
state hospital but reserved ruling on the other motions.
8 On April 3, 2006, upon receipt of the new competency
evaluation, the district court made a final determination
that Worosello was competent to proceed. Worosello's
attorney did not object. Worosello's attorney then
withdrew his motion to withdraw Worosello's guilty plea,
as well as his motion to withdraw as Worosello's
attorney. Worosello explicitly agreed on the record to the
withdrawal of both motions.
9 On May 15, 2006, the district court sentenced Worosello to
ten years to life in SOISP.
10 On July 20, 2006, the prosecution moved to revoke
Worosello's probation. Worosello was arrested and the
court appointed a public defender to represent him. The
public defender expressed interest in filing another motion
to withdraw Worosello's guilty plea, but never did.
11 On October 12, 2006, following a contested probation
revocation hearing, the district court found that Worosello
had violated the terms and conditions of his probation. The
matter was set over for sentencing, but the day before the
sentencing hearing, Worosello retained a private attorney to
"attempt to withdraw the guilty plea." Even though
the district court expressed concern over the "11th hour
feel to this maneuvering," it allowed the public
defender to withdraw and allowed the new attorney to enter
his appearance. The district court continued the case for a
sentencing hearing two days later.
12 On November 30, 2006, at the rescheduled sentencing
hearing, Worosello's new private attorney did not seek to
withdraw the plea, and the district court sentenced Worosello
to two years to life in the custody of the Department of
13 Almost ten years later, on December 16, 2015, Worosello
filed a motion entitled "Motion to Vacate Conviction
Pursuant to Rule 35(c)." Worosello attached
documentation from a doctor who opined that Worosello was
incompetent when he entered into the plea agreement in this
case. The postconviction court denied Worosello's Crim.
P. 35(c) motion as untimely. The court also rejected
Worosello's claims on their merits.
14 Worosello first contends that his motion is timely because
he labored under a disability that tolled the statute of
limitations on his filing of a Crim. P. 35(c) motion.
Alternatively, he argues that justifiable excuse or excusable
neglect excuses the late filing.
15 As to the merits, Worosello argues that plea counsel had a
conflict of interest affecting his representation, that plea
counsel provided ineffective assistance of counsel, and ...