COLORADO COURT OF APPEALS 2016COA169

Court of Appeals No. 15CA1507 

Weld County District Court No. 96CR819 

Honorable Carol Glowinsky, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Israel Chavez-Torres, 

Defendant-Appellant. 

ORDER REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division I 

Opinion by JUDGE DUNN 

Taubman and Casebolt*, JJ., concur 

Announced November 17, 2016 

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, 

Colorado, for Defendant-Appellant 

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2016. 
1 

¶ 1 In People v. Martinez-Huerta, 2015 COA 69, ¶ 18, a division of 

this court concluded that a defendant’s allegation that he pleaded 

guilty based upon his counsel’s “affirmative and erroneous” advice 

regarding the immigration consequences of such a plea warranted a 

hearing to determine whether the defendant could establish 

justifiable excuse or excusable neglect for his late postconviction 

motion. 

¶ 2 Relying on that case, the district court here summarily denied 

the untimely Crim. P. 35(c) motion of defendant, Israel 

Chavez-Torres, concluding as a matter of law that Martinez-Huerta

foreclosed a hearing to determine whether Chavez-Torres’ 

allegations, if true, would establish justifiable excuse or excusable 

neglect. 

¶ 3 Because we do not read Martinez-Huerta the same way, and 

because we further conclude that Chavez-Torres alleged facts that, 

if true, would establish justifiable excuse or excusable neglect, we 

reverse and remand the case for further proceedings. 

I. Background 

¶ 4 Chavez-Torres is a citizen of Mexico who came to the United 

States with his family when he was a child. While in high school, 
2 

Chavez-Torres pleaded guilty to first degree criminal trespass. The 

trial court sentenced him to probation, which he successfully 

completed. 

¶ 5 Seventeen years after his criminal trespass conviction, the 

United States Department of Homeland Security initiated removal 

proceedings, alleging that Chavez-Torres was not legally present in 

the United States and had been convicted of a crime involving moral 

turpitude. 

¶ 6 Chavez-Torres consulted with an immigration attorney who 

advised him that because of his conviction, he was not eligible for 

cancellation of removal from the United States. The immigration 

attorney also advised him that his plea counsel may have been 

ineffective in not advising him of the immigration consequences of 

his guilty plea. 

¶ 7 Chavez-Torres moved for postconviction relief from his 

criminal trespass conviction under Crim. P. 35(c). He alleged that, 

despite the fact that he had informed plea counsel that he was not a 

citizen of the United States, counsel had advised him to accept the 

plea agreement without telling him that the guilty plea carried a 

risk of adverse immigration consequences. He claimed that, had 
3 

plea counsel properly advised him of this risk, he would have 

rejected the plea offer and insisted on going to trial. As a result, he 

asserted that his plea and conviction were constitutionally infirm. 

¶ 8 Chavez-Torres acknowledged that his postconviction motion 

was untimely. But he alleged that the untimeliness resulted from 

circumstances amounting to justifiable excuse or excusable neglect 

because he had no reason to question the constitutional validity of 

his criminal trespass conviction until the initiation of the removal 

proceedings. It was only then, he alleged, that he learned his 

trespass conviction prevented him from remaining in the United 

States and that his plea counsel may have rendered ineffective 

assistance. 

¶ 9 The district court summarily denied Chavez-Torres’ motion. It 

found that (1) the motion was filed beyond the three-year deadline 

for postconviction challenges; (2) given the passage of time, “the 

prejudice to the state’s case would be great”; and (3) Chavez-Torres 

had failed to assert facts “amounting to justifiable excuse or 

excusable neglect.” 
4 

II. Justifiable Excuse or Excusable Neglect 

¶ 10 Chavez-Torres contends that the district court erred in 

summarily denying his postconviction motion based on the 

statutory time bar because (1) he asserted facts that, if true, would 

establish justifiable excuse or excusable neglect; and (2) the finding 

that the State would suffer “great” prejudice has no record support. 

We agree as to both. 

A. Governing Standards 

¶ 11 A defendant has three years to file a Crim. P. 35(c) motion 

challenging a non-class-one felony conviction. § 16-5-402(1), 

C.R.S. 2016. But the deadline may be extended if “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). 

¶ 12 To merit a hearing on the exception to the three-year deadline, 

a defendant must allege facts that, if true, would establish 

justifiable excuse or excusable neglect. Close v. People, 180 P.3d 

1015, 1019 (Colo. 2008); People v. Wiedemer, 852 P.2d 424, 440 

n.15 (Colo. 1993). The defendant need not set forth the evidentiary 

support for his allegations. Close, 180 P.3d at 1019. 
5 

¶ 13 In determining whether justifiable excuse or excusable neglect 

exists, the district court must consider “the particular facts of [the] 

case, so as to give effect to the overriding concern that defendants 

have a meaningful opportunity to challenge their convictions as 

required by due process.” Id. To facilitate such a case-specific 

review, our supreme court has identified a list of non-exhaustive 

factors that a district court must consider in addressing justifiable 

excuse or excusable neglect. Wiedemer, 852 P.2d at 442. In 

particular, the court must take into consideration whether 

1. circumstances or outside influences existed that prevented a 

challenge to the prior conviction;

2. a defendant having reason to question the constitutionality of 

a conviction investigated its validity and took advantage of 

relevant avenues of relief that were available;

3. 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; 

4. a defendant had other means of preventing the government’s 

use of the conviction, so that a postconviction challenge was 

previously unnecessary; and
6 

5. the passage of time affects the State’s ability to defend against 

the challenge. 

Id. at 441-42. 

¶ 14 Whether a defendant can ultimately establish justifiable 

excuse or excusable neglect is a question of fact for the district 

court. Id. at 443. But whether the defendant alleged facts that, if 

true, would constitute justifiable excuse or excusable neglect, and 

therefore merit a hearing on the issue, is a question that we review 

de novo. Martinez-Huerta, ¶ 8; see Close, 180 P.3d at 1019, 1022. 

B. The Postconviction Allegations 

¶ 15 Chavez-Torres’ postconviction motion alleged that (1) he “told 

[his counsel] that he was not a citizen of the United States”; (2) “[o]n 

the advice of his attorney,” he accepted the plea offer; (3) his 

attorney “did not advise him that the plea would prevent him from 

becoming a lawful permanent resident” or “prevent him from 

applying for cancel[l]ation of removal”; (4) he was “unaware” that 

the plea would “prevent him from remaining in the United States”; 

(5) he successfully completed his probation in 1998; and (6) he did 

not learn that his conviction had adverse immigration consequences 

until the removal proceedings were initiated. In support of his 
7 

postconviction motion, Chavez-Torres attached his plea agreement, 

which — unlike some such agreements — contained no notice of 

possible immigration consequences. And he attached his plea 

transcript, which again did not refer to possible immigration 

consequences.1 

¶ 16 The prosecution did not respond to the postconviction motion. 

¶ 17 Despite the uncontested allegations, the district court 

summarily denied the postconviction motion. Specifically, relying 

on Martinez-Huerta, the district court concluded, as a matter of law, 

that an attorney’s failure to advise a client of adverse immigration 

consequences “does not establish justifiable excuse or excusable 

neglect.” And it concluded that the prejudice to the State’s case 

“would be great.” 

C. Martinez-Huerta

¶ 18 Martinez-Huerta did not address the issue presented here. 

That is, it did not consider whether allegations that an attorney 

 

1 The record also contains the district court’s disposition hearing 

checklist. Although the form has check marks next to several boxes 

related to Chavez-Torres’ plea, the box identified as “POZO 

advisement” is not checked. See People v. Pozo, 746 P.2d 523, 529 

(Colo. 1987) (recognizing that counsel has a duty to investigate the 

immigration consequences for a known non-citizen client). 
8 

affirmatively advised her non-citizen client to accept a plea, without 

also advising the client of related possible immigration 

consequences, are sufficient to warrant a hearing on justifiable 

excuse or excusable neglect. Rather, Martinez-Huerta concluded 

that the defendant’s allegation there — that his counsel gave him 

“affirmative and erroneous” advice — was sufficient to warrant a 

hearing to determine whether the defendant could establish 

justifiable excuse or excusable neglect. Id. at ¶ 18. We thus do not 

agree with the district court that Martinez-Huerta stands for the 

general proposition that an attorney’s mere failure to advise a client 

of adverse immigration consequences, under the circumstances 

alleged here, is insufficient, as a matter of law, to establish 

justifiable excuse or excusable neglect. 

¶ 19 To be sure, and as the People stress, Martinez-Huerta observed 

that “[g]enerally, the absence of, or failure to give, advice does not 

establish justifiable excuse or excusable neglect.” Id. at ¶ 17. But 

the cases Martinez-Huerta relied on for this unremarkable 

proposition — People v. Alexander, 129 P.3d 1051 (Colo. App. 

2005), and People v. Slusher, 43 P.3d 647 (Colo. App. 2001) — are 

not immigration consequence cases. And neither involved 
9 

situations — like this one — where an attorney has a legal duty to 

advise a known, non-citizen client of possible immigration 

consequences related to a guilty plea. See People v. Pozo, 746 P.2d 

523, 526 (Colo. 1987) (holding that attorneys have an affirmative 

duty to research relevant immigration law for their non-citizen 

clients, and when the law is clear, to advise their clients regarding 

the immigration consequences of a guilty plea); accord People v. 

Kazadi, 284 P.3d 70, 73 (Colo. App. 2011), aff’d, 2012 CO 73; see 

also Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (recognizing that 

prevailing norms support “the view that counsel must advise her 

client regarding the risk of deportation”). 

¶ 20 In fact, Alexander held that appellate counsel has no duty to 

advise a defendant of the time limitations for seeking postconviction 

relief. 129 P.3d at 1056. As a result, it concluded that the absence 

of such advice was not a justifiable excuse and did not excuse the 

defendant’s neglect. Id. And Slusher concluded that, under the 

circumstances there, an attorney’s failure to advise a defendant of 

his rights under the Uniform Mandatory Disposition of Detainers 

Act (UMDDA) did not constitute justifiable excuse because the 

defendant did not explain why he failed to include his UMDDA 
10 

claim in a prior postconviction proceeding in which he was 

represented by counsel. 43 P.3d at 651. We thus do not agree that 

Alexander or Slusher created a per se rule that an allegation that an 

attorney failed to give advice — which the attorney has an 

affirmative legal duty to give — is insufficient to warrant a hearing 

to determine whether a defendant can demonstrate justifiable 

excuse or excusable neglect. 

¶ 21 The People next argue that Chavez-Torres’ “ignorance of the 

law” should not excuse his failure to file a timely postconviction 

motion. In so arguing, the People rely on People v. White, 981 P.2d 

624, 626 (Colo. App. 1998), and People v. Vigil, 955 P.2d 589, 591-

92 (Colo. App. 1997). But White and Vigil are unhelpful for the 

same reason that Alexander and Slusher are not helpful. These 

cases do not involve counsel’s affirmative legal duty to advise a 

client regarding the risk of immigration consequences. Instead, 

they recognize the principle that a defendant’s ignorance regarding 

the postconviction time bar cannot constitute justifiable excuse or 

excusable neglect. White, 981 P.2d at 626; see Vigil, 955 P.2d at 

591-92. 
11 

¶ 22 But Chavez-Torrez has not alleged he should be excused 

simply because he was unaware of a statutory deadline. He alleged 

that his plea counsel advised him to plead guilty to criminal 

trespass, knowing he was not a citizen and without satisfying her 

legal duty to advise him of the related immigration consequences. 

And until he became aware of plea counsel’s alleged failure to fulfill 

her legal duty, he asserts that he had no reason to question the 

constitutionality of his conviction. Chavez-Torres thus alleged facts 

directly implicating two Wiedemer factors. See Wiedemer, 852 P.2d 

at 441 (whether and when the defendant had reason to question the 

constitutionality of his conviction). Such particular facts are the 

type our supreme court cautioned “must” be considered “so as to 

give effect to the overriding concern that defendants have a 

meaningful opportunity to challenge their convictions as required 

by due process.” Close, 180 P.3d at 1019. 

¶ 23 Under these circumstances and in light of Chavez-Torres’ 

Crim. P. 35(c) allegations, we do not agree that Martinez-Huerta

forecloses a hearing to determine whether Chavez-Torres can 

establish justifiable excuse or excusable neglect for his otherwise 

untimely postconviction motion. 
12 

D. The Remaining Factors 

¶ 24 As a second basis for summarily denying Chavez-Torres’ 

postconviction motion, the district court found that “the prejudice 

to the state’s case would be great” due to the passage of time. The 

record, however, does not support this factual finding. 

¶ 25 Whether relevant files and witnesses exist is a factual 

inquiry that must be determined on a case-by-case basis. See 

Wiedemer, 852 P.2d at 441; Martinez-Huerta, ¶ 13. The answer will 

not always be the same. 

¶ 26 Although it appears that Chavez-Torres’ postconviction motion 

was sent to the district attorney’s office, the prosecution did not 

object or respond. Nor did the district court seek or require a 

response. And — as Chavez-Torres points out — the record here 

includes the plea agreement and the transcripts of the providency 

hearing and sentencing proceedings. He also alleged that plea 

counsel is still a practicing Colorado attorney. Absent a response 

from the prosecution, we cannot say whether this record is 

sufficient for the prosecution to defend the postconviction motion. 

At any rate, the existing record does not support the district court’s 

finding that the State will suffer “great” prejudice. 
13 

¶ 27 Finally, other than the passage of time, it is unclear whether 

the district court considered and weighed the remaining Wiedemer

factors. See Wiedemer, 852 P.2d at 442 n.20 (“[T]he best approach 

for determining whether a defendant satisfies the justifiable excuse 

or excusable neglect standard under § 16-5-402(2)(d) is a weighing 

of the various interests at stake.”). Specifically, Chavez-Torres 

alleged that having followed his counsel’s advice to accept the plea 

offer, without discussion of the immigration consequences, he had 

no reason to question the constitutional validity of his guilty plea 

until he consulted with an immigration attorney about his removal 

proceedings. Chavez-Torres thus alleged facts that implicate the 

second and third Wiedemer factors (whether and when he had 

reason to question the constitutionality of his conviction). But the 

record is silent with respect to whether the district court considered 

and weighed these factors. Cf. People v. Cordova, 199 P.3d 1, 5 

(Colo. App. 2007) (concluding “the trial court appropriately 

considered all the Wiedemer factors to determine justifiable excuse 

or excusable neglect, and that the court’s findings are supported by 

the record”). For this reason too, a remand is needed. 
14 

¶ 28 Given all this, and under these circumstances, we are 

“reluctant to conclude, as a matter of law, that justifiable excuse or 

excusable neglect did not exist.” People v. Clouse, 74 P.3d 336, 341 

(Colo. App. 2002); accord Martinez-Huerta, ¶ 24. And we are 

persuaded that Chavez-Torres has “pleaded facts that warrant a 

hearing on justifiable excuse or excusable neglect.” 

Martinez-Huerta, ¶ 7. 

III. Ineffective Assistance of Counsel 

¶ 29 Even accepting that the allegations could warrant a hearing on 

justifiable excuse or excusable neglect, the People urge us to affirm 

the district court’s denial of Chavez-Torres’ postconviction motion 

on the alternative basis that he has failed to prove the prejudice 

prong of his ineffective assistance of counsel claim. Although we 

may affirm a district court’s order on any basis supported by the 

record, we are not persuaded to do so here. 

¶ 30 The denial of a claim of ineffective assistance of counsel 

without a hearing is justified if, but only if, the existing record 

establishes that the defendant’s allegations, even if proven true, 

would fail to establish either constitutionally deficient performance 

or prejudice. Strickland v. Washington, 466 U.S. 668, 690 (1984); 
15 

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). To demonstrate 

prejudice in the context of a guilty plea, a defendant must show a 

reasonable probability that, but for counsel’s deficient performance, 

he would have rejected the plea offer and insisted on going to trial. 

See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. MoronesQuinonez, 2015 COA 161, ¶ 7. In an immigration consequences 

case, such a showing requires an allegation that rejecting the plea 

“would have been rational under the circumstances.” Padilla, 559 

U.S. at 372. 

¶ 31 Chavez-Torres alleged in his postconviction motion that 

rejecting the plea offer would have been rational under the 

circumstances because his entire immediate family lived in the 

United States and he had no family in, or connections to, Mexico. 

These unrebutted allegations sufficiently assert Strickland

prejudice. See id.; Morones-Quinonez, ¶ 12 (“[I]n the context of a 

decision to forgo a guilty plea based on immigration considerations, 

the defendant need only make some showing that the decision 

would have been rational.”); see also Kazadi, 284 P.3d at 75 (The 

defendant’s “alleged personal circumstances and lack of ties to the 

Congo support[ed] his assertion that he would not have pleaded 
16 

guilty had he received the advice that he was constitutionally 

entitled to receive.”). 

¶ 32 Because Chavez-Torres has alleged facts that support his 

contention that it would have been “rational under the 

circumstances” to reject the plea offer had he been properly advised 

of the immigration consequences, we cannot, on this record, 

conclude otherwise as a matter of law. 

IV. Conclusion 

¶ 33 The order denying the postconviction motion is reversed, and 

the case is remanded to the district court. On remand, the court 

shall hold a hearing to determine whether Chavez-Torres has 

established justifiable excuse or excusable neglect for his untimely 

postconviction motion. If he can, the court must then consider the 

merits of his postconviction motion. 

JUDGE TAUBMAN and JUDGE CASEBOLT concur.