     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 14, 2019

                               2019COA166

No. 16CA1569, People v. Worosello — Criminal Procedure —

Postconviction Remedies; Criminal Law — Limitation for

Collateral Attack Upon Trial Court Judgment; Courts and Court

Procedure — Limitations for Persons Under Disability — When a

Statute Begins to Run

     A division of the court of appeals considers 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, the division concludes

that it does not. The division also considers whether the defendant

alleged facts that, if true, would constitute justifiable excuse or

excusable neglect so as to entitle him to a hearing. The division

concludes that he did not.
     Because the postconviction court properly denied the

defendant’s Crim. P. 35(c) motion as untimely, the division affirms.
COLORADO COURT OF APPEALS                                      2019COA166


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


The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Worosello,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division II
                         Opinion by JUDGE BROWN
                       Dailey and Richman, JJ., concur

                        Announced November 14, 2019


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
¶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


                                     1
 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.




                                    2
¶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


                                    3
  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.


                                     4
¶ 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 that his plea was not

  knowing, intelligent, and voluntary.

¶ 16    We agree with the postconviction court that Worosello’s motion

  is untimely. Accordingly, we do not address the merits of

  Worosello’s collateral attack on his conviction.

             A.    The Statute of Limitations Was Not Tolled

¶ 17    Worosello first contends that his motion is timely because he

  labors under a disability such that section 13-81-103(1)(a) tolled

  the three-year period within which he had to file his Rule 35(c)

  motion under section 16-5-402(1). We disagree.

   1.   Standard of Review and Generally Applicable Legal Principles

¶ 18    Whether one statute may toll the time limitation in another

  statute presents a matter of statutory interpretation, which we

  review de novo. See Kazadi v. People, 2012 CO 73, ¶ 11.

¶ 19    We interpret the plain language of a statute to give full effect to

  the intent of the General Assembly. People v. Griego, 2018 CO 5,

  ¶ 25. When the statutory language is clear, we apply the plain and

  ordinary meaning of the provision. Id. In doing so, we give


                                      5
  consistent, harmonious, and sensible effect to each part of the

  statute, rendering no words or phrases superfluous. Id.

                              2.    Discussion

¶ 20     A defendant may move to have his judgment of conviction set

  aside on various grounds. See Crim. P. 35(c). A Crim. P. 35(c)

  motion must comply with the time limits set forth in section 16-5-

  402. Crim. P. 35(c)(3)(I); People v. Wiedemer, 852 P.2d 424, 427

  (Colo. 1993). That statute provides that “no person who has been

  convicted as an adult . . . under a criminal statute of this or any

  other state of the United States shall collaterally attack the validity

  of that conviction . . . unless such attack is commenced within the

  applicable time period . . . .” § 16-5-402(1). Because Worosello

  pleaded guilty to a class 4 felony, he had three years from the date

  of sentencing to challenge the validity of his conviction. Id. 1

  Worosello was sentenced in 2006. Therefore, his opportunity to

  collaterally attack the validity of his conviction under Crim. P. 35(c)

  expired in 2009.




  1   Worosello did not directly appeal his conviction or sentence.

                                      6
¶ 21   Section 16-5-402 also sets forth the “only exceptions” to its

  time limits:

             In recognition of the difficulties attending the
             litigation of stale claims and the potential for
             frustrating various statutory provisions
             directed at repeat offenders, former offenders,
             and habitual offenders, the only exceptions to
             the time limitations specified in subsection (1)
             of this section are: (a) [a] case in which the
             court entering judgment of conviction or
             entering adjudication did not have jurisdiction
             over the subject matter of the alleged offense;
             (b) [a] case in which the court entering
             judgment of conviction or entering
             adjudication did not have jurisdiction over the
             person of the defendant or juvenile; (c) [w]here
             the court hearing the collateral attack finds by
             a preponderance of the evidence that the
             failure to seek relief within the applicable time
             period was caused by an adjudication of
             incompetence or by commitment of the
             defendant or juvenile to an institution for
             treatment as a person with a mental health
             disorder; or (d) [w]here 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.

  § 16-5-402(2) (emphasis added).

¶ 22   But Worosello argues that, because he “has been disabled his

  entire life,” the “time limitations of section 16-5-402 . . . should be




                                     7
tolled” pursuant to section 13-81-103(1)(a). That statute provides

as follows:

              When in any of the statutes of the state of
              Colorado a limitation is fixed upon the time
              within which a right of action, right of
              redemption, or any other right may be asserted
              either affirmatively or by way of defense or an
              action, suit, or proceeding based thereon may
              be brought, commenced, maintained, or
              prosecuted and the true owner of said right is
              a person under disability at the time such
              right accrues, then . . . [i]f such person under
              disability is represented by a legal
              representative at the time the right accrues, or
              if a legal representative is appointed for such
              person under disability at any time after the
              right accrues and prior to the termination of
              such disability, the applicable statute of
              limitations shall run against such person
              under disability in the same manner, for the
              same period, and with the same effect as it
              runs against persons not under disability.
              Such legal representative, or his successor in
              trust, in any event shall be allowed not less
              than two years after his appointment within
              which to take action on behalf of such person
              under disability, even though the two-year
              period expires after the expiration of the period
              fixed by the applicable statute of limitations.

§ 13-81-103(1)(a). Worosello contends that, because he did not

have and still does not have an appointed legal representative, the

statute of limitations has not run against him.




                                     8
¶ 23   We are not aware of any authority that has applied this

  general tolling statute to the limitations period that governs Crim.

  P. 35(c) motions. For at least four reasons, we decline to so apply it

  today.2

¶ 24   First, by its plain language, section 16-5-402(2) clearly and

  unambiguously identifies the “only exceptions” to the time

  limitations in section 16-5-402(1), and having a disability as

  recognized by section 13-81-103(1)(a) is not one of them. The

  General Assembly’s use of the word “only” to describe the

  exceptions reflects its intent to create an exclusive list of such

  exceptions. People ex rel. N.R., 139 P.3d 671, 683 (Colo. 2006)

  (“The word ‘only’ in the statute represents an unequivocal statement

  that this list is meant to be exhaustive.”).

¶ 25   Second, although section 16-5-402(2) does include an

  exception that deals explicitly with competence, it does not mirror


  2As another division previously noted, “there is no authority,
  whether statute, rule, or appellate opinion, that recognizes a ‘tolling’
  of the time limit contained in section 16-5-402(1).” People v.
  Stovall, 2012 COA 7M, ¶ 33 n.3. Cf. People v. Ambos, 51 P.3d 1070,
  1071-72 (Colo. App. 2002) (“[T]he timely commencement of a
  collateral attack fails to toll the limitations period with respect to
  additional postconviction claims not contained in the timely filed
  motion.”).

                                     9
  section 13-81-103(1)(a). Instead, it applies where the court hearing

  the Rule 35(c) motion “finds by a preponderance of the evidence

  that the failure to seek relief within the applicable time period was

  caused by an adjudication of incompetence or by commitment of

  the defendant . . . to an institution for treatment as a person with a

  mental health disorder.” § 16-5-402(2)(c). 3 “Under the rule of

  interpretation expressio unius exclusio alterius, the inclusion of

  certain items implies the exclusion of others.” Beeghly v. Mack, 20

  P.3d 610, 613 (Colo. 2001). By specifying one circumstance where

  incompetence excepts a Rule 35(c) motion from the time limits in

  section 16-5-402(1), the General Assembly intended that no other

  competence-related exception exist.

¶ 26   Third, section 13-81-103(1)(a) was enacted before section 16-

  5-402. Dawson v. Reider, 872 P.2d 212, 214 (Colo. 1994) (“[A] later

  statute is given effect over an earlier statute.”). We presume the

  General Assembly was aware of the general tolling provisions of

  section 13-81-103 when it created the time limits for collaterally


  3Notably, Worosello does not argue that this exception applies, nor
  did he allege in his Crim. P. 35(c) motion that he had been
  adjudicated incompetent or committed due to a mental health
  disorder.

                                    10
  attacking convictions set forth in section 16-5-402. Leonard v.

  McMorris, 63 P.3d 323, 331 (Colo. 2003) (“We presume that the

  General Assembly knows the pre-existing law when it adopts new

  legislation or makes amendments to prior acts.”). Had it intended

  the general tolling provision of section 13-81-103(1) to apply to the

  time limits in section 16-5-402(1), it would have said so. Instead, it

  created an expressly exhaustive list of exceptions that does not

  include section 13-81-103(1)(a). § 16-5-402(2).

¶ 27   Fourth, section 16-5-402 applies specifically to collateral

  attacks on conviction, while section 13-81-103 applies generally.

  When a general statutory provision conflicts with a specific

  provision and the conflict is irreconcilable, the specific provision

  prevails as an exception to the general provision. See § 2-4-205,

  C.R.S. 2019;4 Martin v. People, 27 P.3d 846, 852 (Colo. 2001). As

  the Colorado Supreme Court explained,

             The reasoning behind this principle of
             statutory construction is a simple matter of
             logic. A general provision, by definition, covers
             a larger area of the law. A specific provision,

  4This is true unless the general provision is adopted later and the
  manifest intent is that the general provision prevail. See § 2-4-205,
  C.R.S. 2019. As noted, section 16-5-402 was enacted after section
  13-81-103.

                                     11
             on the other hand, acts as an exception to that
             general provision, carving out a special niche
             from the general rules to accommodate a
             specific circumstance. . . . If general
             provisions prevailed over specific ones, then
             specific provisions would cease to function
             entirely.

  Id.

¶ 28    For this reason, Worosello’s reliance on Southard v. Miles, 714

  P.2d 891 (Colo. 1986), is misplaced. In Southard, the Colorado

  Supreme Court considered the statute of limitations and statute of

  repose applicable to a medical malpractice claim. As is relevant

  here, by its own terms, the statute was tolled during any period in

  which the person was “under disability,” which included a “mental

  incompetent.” Id. at 895-96; see § 13-80-105(1), C.R.S. 1985. But

  the statute did not define “mental incompetent” or explain how a

  person under disability due to mental incompetence should be

  treated for purposes of the statute of limitations. Id. at 896.

  Accordingly, the court looked to section 13-81-103(1)(a) for

  guidance. Reading the statutes together, the court concluded that

  the tolling provisions of section 13-81-103(1) applied to both the

  statute of limitations and the statute of repose. Id. at 897-98.




                                    12
¶ 29   In doing so, however, the court explained that section 13-81-

  103(1) “is intended to apply to any statute of limitations in this

  state . . . unless there exists a special statute pertinent to the claim

  that conflicts with the general provisions of section 13-81-103.” Id. at

  897 (emphasis added); see also id. at 897 n.8 (discussing § 2-4-205,

  C.R.S. 1980). In this case, section 16-5-402 is a special statute

  pertinent to collateral attacks on criminal convictions, and it

  conflicts with the general provisions of section 13-81-103(1).

  Because a conflict exists, the special statute prevails over the

  general. See § 2-4-205.

¶ 30   And, unlike the statute in Southard, section 16-5-402 does not

  recognize an exception to its time limitation for a “person under

  disability.” Instead, it provides an exhaustive list of exceptions,

  which does not include those addressed by section 13-81-103(1)(a).

  And, as noted above, section 16-5-402 was the later-enacted

  statute.

¶ 31   For these reasons, we agree with the postconviction court that

  section 13-81-103(1)(a) does not toll the statute of limitations set

  forth in section 16-5-402(1) for collateral attacks on convictions.




                                      13
   B.   Worosello Failed to Establish Justifiable Excuse or Excusable
                                    Neglect

¶ 32    In the alternative, Worosello argues that his untimely motion

  should be accepted because his failure to file for relief before the

  three-year limit expired was due to justifiable excuse or excusable

  neglect. Again, we disagree.

                         1.    Standard of Review

¶ 33    The postconviction court denied Worosello’s Crim. P. 35(c)

  motion without a hearing. Thus, we review de novo whether he

  alleged facts that, if true, would constitute justifiable excuse or

  excusable neglect and merit a hearing. People v. Chavez-Torres,

  2019 CO 59, ¶ 11 (citing Close v. People, 180 P.3d 1015, 1019

  (Colo. 2008)).

                              2.   Discussion

¶ 34    A court may deny a Crim. P. 35 motion without a hearing if

  “the motion, the files, and the record clearly establish that the

  defendant is not entitled to relief.” People v. Osorio, 170 P.3d 796,

  799 (Colo. App. 2007). Additionally, a “trial court may rely on the

  plea agreement or the plea hearing transcript in denying [a] Rule




                                     14
  35(c) motion without a hearing on timeliness grounds.”

  Chavez-Torres, ¶ 17.

¶ 35   As set forth above, one exception to the time bar in section 16-

  5-402(1) is “[w]here 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.” § 16-5-402(2)(d). However, it is well settled that

  “[a] defendant must allege in a Crim. P. 35 motion facts that, if true,

  would establish justifiable excuse or excusable neglect for a belated

  filing.” People v. Clouse, 74 P.3d 336, 340 (Colo. App. 2002). If the

  defendant fails to make this showing, the postconviction court may

  deny the motion without conducting a hearing. People v. Salinas,

  55 P.3d 268, 270 (Colo. App. 2002).

¶ 36   Although section 16-5-402(2)(d) does not define justifiable

  excuse or excusable neglect, our supreme court has identified a

  nonexhaustive list of factors for a postconviction court to consider

  when evaluating whether a defendant has alleged sufficient facts to

  merit a hearing. See Wiedemer, 852 P.2d at 441-42. These factors

  include




                                    15
            (1) whether there are circumstances or outside
            influences preventing a challenge to a prior
            conviction and the extent to which the
            defendant having reason to question the
            constitutionality of a conviction investigates its
            validity and takes advantage of relevant
            avenues of relief that are available; (2) whether
            a defendant had any previous need to
            challenge a conviction and either knew that it
            was constitutionally infirm or had reason to
            question its validity; (3) whether a defendant
            had other means of preventing the
            government’s use of the conviction, so that a
            post-conviction challenge was previously
            unnecessary; and (4) whether the passage of
            time has an effect on the State’s ability to
            defend against the challenge.

  Close, 180 P.3d at 1019-20 (citing Wiedemer, 852 P.2d at 441-42).

¶ 37   Most of Worosello’s argument pertains to the first and second

  Wiedemer factors. In essence, Worosello argues that his “ongoing

  incompetency,” “disability,” and “lack of sufficient mental faculties”

  have resulted in a complete inability to “process the

  unconstitutionality of his conviction,” leading him not to investigate

  or timely pursue postconviction relief. Worosello’s argument rests

  primarily on his contentions that he was not competent to proceed

  when he entered his plea and has not been competent to proceed

  since. Thus, couched as justifiable excuse or excusable neglect,

  Worosello seeks to relitigate his competence.


                                    16
¶ 38   The record, however, contradicts Worosello’s allegations. It

  shows that Worosello underwent multiple competency evaluations

  and was found competent to proceed both before he entered his

  plea and again before he was sentenced. Additionally, neither

  attorney representing Worosello during the probation revocation

  proceedings raised the issue of his competence at that time. 5

¶ 39   And significantly — back in 2005 and 2006 — Worosello’s first

  attorney filed and then withdrew a motion to withdraw his plea

  before sentencing; Worosello’s public defender in the probation

  revocation proceedings indicated an intent to file a motion to

  withdraw the plea but never did; and Worosello hired a private

  attorney for the express purpose of attempting to withdraw the plea

  but proceeded to sentencing without filing such motion. Thus, the

  record reflects that Worosello previously had reason to question and

  took steps to challenge the validity of his plea and, consequently,

  his conviction.




  5Notably, Worosello does not allege ineffective assistance of counsel
  as to the public defender or as to private counsel who entered an
  appearance during the probation revocation proceedings.

                                    17
¶ 40   As to the third Wiedemer factor, Worosello argues that he

  never had reason to seek to prevent the government’s use of his

  conviction. However, his conviction is why he spent the last decade

  of his life in the custody of the Department of Corrections.

¶ 41   As to the fourth Wiedemer factor, Worosello argues that the

  passage of years has not limited the prosecution’s ability to defend

  against the challenge in any meaningful way. However, Worosello’s

  Rule 35(c) motion itself established that the prosecution would be

  adversely affected. It stated that neither of the two teenage girls

  from the swimming pool, who are now adult women, remembers

  being offered beer or being touched by Worosello. As the

  postconviction court correctly stated, “[c]learly the passage of time

  has not inured to the benefit of the People and would only serve to

  negatively affect the ability of the People to respond to the

  challenges now presented by the Defendant.”

¶ 42   In the end, we agree with the postconviction court’s conclusion

  that Worosello failed to allege facts sufficient to warrant a hearing

  on justifiable excuse or excusable neglect.




                                    18
                           III.   Conclusion

¶ 43   Because we conclude that Worosello’s Crim. P. 35(c) motion

  was untimely, we do not reach the merits of his claims. So, we

  affirm the postconviction court’s order denying Worosello’s untimely

  Rule 35(c) motion.

       JUDGE DAILEY and JUDGE RICHMAN concur




                                   19
