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People v. Worosello

Court of Appeals of Colorado, Second Division

November 14, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
James Worosello, Defendant-Appellant.

          Court of Appeals No. 16CA1569 Douglas County District Court No. 04CR800 Honorable Paul A. King, Judge

          Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BROWN JUDGE

         ¶ 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 detail.

         ¶ 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 competent.

         ¶ 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 Corrections.

         ¶ 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.

         II. Analysis

         ¶ 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 ...


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