Colorado Rule 35(c) Postconviction Proceedings

A Crim. P. 35(c) motion is how a person convicted in Colorado raises constitutional claims that a direct appeal cannot reach. It is filed in the district court where the case was tried, it can require an evidentiary hearing, and, unlike an appeal, it allows a court to consider evidence that is not in the trial record. This page explains what belongs in a 35(c) motion, the deadlines, how the process actually unfolds, and what happens at a hearing.

What a Rule 35(c) proceeding is for

Rule 35(c) provides a way to attack a conviction or sentence that was obtained in violation of the constitution or the laws of Colorado or the United States. The claims that most often belong here include:

• Ineffective assistance of trial or appellate counsel.
• A guilty plea that was not knowing, voluntary and intelligent, including a plea entered on incorrect advice about immigration or sentencing consequences.
• Suppression of favorable evidence by the prosecution.
• Newly discovered evidence that could not have been found earlier with reasonable diligence.
• Juror misconduct or other constitutional defects that depend on facts outside the record.
• A conviction obtained under a statute later held unconstitutional, or a sentence that has since become unlawful.

What are the deadlines?

Section 16-5-402, C.R.S., sets outside limits for collateral attacks, measured from the date of conviction — and, where there was an appeal, from the date the judgment becomes final. The limit depends on the class of offense: there is no time limit for a class 1 felony, while for other felonies it is three years. Misdemeanors, traffic, and petty offenses each carry shorter periods. There is a narrow exception for a defendant who can establish justifiable excuse or excusable neglect.

Two practical points follow. First, the clock is not running during the direct appeal. The clock starts when the appeals court mandates the case back to the district court. But postconviction claims can still be identified and investigated early rather than after the appeal ends. Second, because the exceptions are narrow and heavily litigated, missing the deadline is often fatal even to a strong claim.

How the process works

A 35(c) motion is filed in the district court where the conviction was obtained. The court reviews the motion together with the case file and the record. If the motion, files and record clearly establish that the defendant is not entitled to relief, the court may deny it without a hearing. If it does not, the court ordinarily directs the prosecution to respond, may appoint counsel for an indigent defendant, and then decides whether an evidentiary hearing is required.

Rule 35(c) also bars claims that were already raised and resolved, and claims that could have been presented in an earlier proceeding. That successiveness bar is the reason a first postconviction motion should be thorough and complete: raising claims one at a time, in separate filings, is usually a way to lose all of them. You generally get one bite at the apple.

May a court consider evidence outside the record?

Yes, and that is the central difference between this proceeding and a direct appeal. In a 35(c) case the record is something to be built, not merely read. Depending on the claim, that can involve investigator work, interviews with witnesses who were never called, expert consultation, records that trial counsel never obtained, and statements from trial counsel about what was done and why.

What happens at an evidentiary hearing?

A 35(c) evidentiary hearing is a real hearing with live testimony, exhibits and cross-examination. Trial counsel is frequently called as a witness; when a client alleges ineffective assistance, the attorney-client privilege is generally treated as waived as to the subject of the claim, and the prosecution will use that. The defendant bears the burden of proving the claim, and the district court makes findings of fact that an appellate court will not lightly disturb.

That is why the hearing, not the appeal, is usually where a postconviction case is won or lost. Facts that are not developed at the hearing are effectively gone.

If the motion is denied

An order denying a 35(c) motion can be appealed to the Colorado Court of Appeals, and the appeal deadline is the same as a direct appeal. On appeal, legal conclusions are reviewed de novo, but the district court's factual findings are reviewed deferentially and will be upheld if the record supports them — another reason the hearing record matters so much.

Direct appeal or Rule 35(c)?

Most cases need both, in the right order, with the right claims in each. Getting that allocation wrong is one of the most common and most damaging errors in postconviction practice.

Who does the work?

I read the record, I direct the investigation and work with investigators and experts all over the state that I trust, I write the motion, and I conduct the evidentiary hearing myself. I am a solo practitioner and there is no associate behind the curtain. I also came to this work after seven years as a trial lawyer, which matters when the question at a hearing is what a reasonable defense attorney would actually have done.

Talk with Tillman

Consultations are free, and you will speak with me rather than with staff. Contact me here or call 720-507-5814.

Written by Tillman Patrick Clark, Tillman Patrick Clark, LLC, Denver, Colorado. Last reviewed: July 31, 2026. This page is general information about Colorado postconviction procedure and is not legal advice. Rules, statutes and deadlines change; confirm current requirements with a lawyer about your specific case.