Colo. R. Crim. P. 35
Petition for Postconviction Relief Pursuant to Crim. P. 35(c)
. See Appendix to Chapter 29.If the court finds that defendant is entitled to postconviction relief, the court shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant. The court may stay its order for discharge of the defendant pending appellate court review of the order. If the court orders a new trial, and there are witnesses who have died or otherwise become unavailable, the transcript of testimony of such witnesses at the trial which resulted in the vacated sentence may be used at the new trial.
Colo. R. Crim. P. 35
Annotation I. General Consideration. Law reviews. For comment on Madrid v. People, 148 Colo. 149, 365 P.2d 39 (1961), appearing below, see Rocky Mtn. L. Rev. 400 (1962). For note, "Habeas Corpus Procedure", see 41 Den. L. Ctr. J. 111 (1964). For comment on Hackett v. People, 158 Colo. 304, 406 P.2d 331 (1965), appearing below, see 38 U. Colo. L. Rev. 417 (1966). For note, "Federal Habeas Corpus Confronts the Colorado Courts: Catalyst or Cataclysm?", see 39 U. Colo. L. Rev. 83 (1966). For note, "Colorado Appellate Procedure", see 40 U. Colo. L. Rev. 551 (1968). For note, "Defects in Ineffective Assistance Standards Used by State Courts", see 50 U. Colo. L. Rev. 389 (1979). For article, "Attacking Prior Convictions in Habitual Criminal Cases: Avoiding the Third Strike", see 11 Colo. Law. 1225 (1982). For article, "Crim. P. 35(c): Colorado Law Regarding Postconviction Relief", see 22 Colo. Law. 729 (1993). Defendant not entitled to relief where sentence legal and constitutional. Where the sentence is within statutory limits and does not infringe upon the defendant's constitutional rights, he is not entitled to relief under this rule. People v. Mieyr, 176 Colo. 90, 489 P.2d 327 (1971). Previously, this rule provided in resentencing for credit for time already served. Stafford v. People, 165 Colo. 328, 438 P.2d 696 (1968). And made filing a motion under this rule a prerequisite to habeas corpus. Ralston v. People, 161 Colo. 523, 423 P.2d 326 (1967). This rule establishes postconviction remedies and is not an appropriate means to challenge rulings made in extradition proceedings. Hodges v. Barry, 701 P.2d 1240 (Colo. 1985). A habeas corpus petition seeking relief available under section (c) should be treated as a section (c) motion. Leske v. Golder, 124 P.3d 863 (Colo. App. 2005). Article II, § 16, of the Colorado Constitution does not create a constitutional right to counsel in a hearing under this rule. People v. Duran, 757 P.2d 1096 (Colo. App. 1988). The district court was not obliged to consider a subsequent motion that plainly treated the same issues as the original motion filed pursuant to section (c). People v. Adams, 905 P.2d 17 (Colo. App. 1995). A defendant may not use a proceeding under this rule to relitigate issues that were fully and finally resolved in an earlier appeal. People v. Johnson, 638 P.2d 61 (Colo. 1981); People v. Reali, 950 P.2d 645 (Colo. App. 1997). A hand-written letter that does not assert any claims for defendant's section (c) motion does not toll the time limit in § 16-5-402 . People v. Stovall, 2012 COA 7, __ P.3d __. Defendant needs only "assert", not necessarily "establish", a right to be released before being entitled to relief under section (c). People v. Gallegos, 975 P.2d 1135 (Colo. App. 1998). Defendant does not have a constitutional right to counsel in a Crim. P. 35 postconviction proceeding but does have a limited statutory right to counsel. An attorney appointed to assist defendant with a Crim. P. 35 proceeding who determines that defendant's claims are without merit may inform the court that he or she believes the claims are without merit and request permission to withdraw. If counsel is permitted to withdraw, defendant is not entitled to appointment of new counsel. People v. Starkweather, 159 P.3d 665 (Colo. App. 2006). A limited statutory right to counsel exists for a hearing pursuant to §§ 21-1-103 and 21-1-104 and the waiver of such right to counsel must be made voluntarily but need not be knowingly and intelligent. People v. Duran, 757 P.2d 1096 (Colo. App. 1988). No constitutional right to postconviction counsel exists; however, a limited statutory right exists. The statutory right to postconviction counsel is neither automatic nor unlimited. It is limited to cases where a defendant's section (c) petition is not wholly unfounded and has arguable merit, as determined by the court and the state public defender's office. Silva v. People, 156 P.3d 1164 (Colo. 2007). If postconviction counsel is required according to the limited statutory right, that counsel must provide effective assistance as measured by the two-pronged Strickland v. Washington test. Silva v. People, 156 P.3d 1164 (Colo. 2007). "Collateral attack" as used in § 16-5-402 includes relief sought pursuant to Crim. P. 35. People v. Robinson, 83 P.2d 832 (Colo. App. 1992). Collateral attack on an adjudication of habitual criminality includes relief sought under this rule. People v. Hampton, 876 P.2d 1236 (Colo. 1994). Defendant is not precluded from filing both a timely Crim. P. 35(b) motion and a Crim. P. 35(c) motion after conclusion of the direct appeal. People v. Metcalf, 979 P.2d 581 (Colo. App. 1999). The limitation period cannot commence until there is a right to pursue a collateral attack. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003). Petitioner not entitled to appointed counsel when asserted claim for relief is wholly unfounded. Brinklow v. Riveland, 773 P.2d 517 (Colo. 1989); People v. Collier, 151 P.3d 668 (Colo. App. 2006). Plain error occurs if waiver of statutory right to counsel in postconviction proceeding is involuntary. People v. Duran, 757 P.2d 1096 (Colo. App. 1988). Without alleging specific facts in Crim. P. 35(c) motion that might appear in record to substantiate general allegations, defendant not entitled to have trial record provided to him at correctional facility. People v. Manners, 878 P.2d 71 (Colo. App. 1994). Trial court has no authority to retain jurisdiction over a defendant after sentencing for the reason that the law may be changed by a subsequent court decision even though the court, at the time of sentencing, is aware of a case appealed to the state supreme court which may change the interpretation of statute regarding credit against the sentence for presentence confinement. People v. Mortensen, 856 P.2d 45 (Colo. App. 1993). Motions under this rule are subject to statutory limitations in § 16-5-402 . People v. Robinson, 833 P.2d 832 (Colo. App. 1992); People v. Wiedemer, 852 P.2d 424 (Colo. 1993); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Rodriguez, 914 P.2d 230 (Colo. 1996); People v. Ambos, 51 P.3d 1070 (Colo. App. 2002); People v. Collier, 151 P.3d 668 (Colo. App. 2006). The time limits in § 16-5-402(1) are specifically categorized by level of offense, so, in a case in which defendant is convicted of a class 1 felony and other felonies, the time limit for the class 1 felony does not control the time limit for all of the convictions that are not class 1 felonies. Defendant's challenges to the non-class 1 felonies in a section (c) motion were subject to the three-year statute of limitations. People v. Stovall, 2012 COA 7, __ P.3d __. Statutory limitations in § 16-5-402 do not usurp the supreme court's rulemaking authority. While the statute has an incidental effect on judicial procedure, it is primarily an expression of public policy, and therefore it prevails over terms of subsection (c)(3) of this rule stating that motion may be filed "at any time". People v. Robinson, 833 P.2d 832 (Colo. App. 1992). Justifiable excuse or excusable neglect would be established if the public defender's conflict of interest was the reason for not filing a motion for post-conviction relief on behalf of defendant. People v. Chang, 179 P.3d 240 (Colo. App. 2007). Justifiable excuse or excusable neglect would be established if the public defender's failure to file a motion for post-conviction relief on behalf of defendant was the result of ineffective counsel. People v. Chang, 179 P.3d 240 (Colo. App. 2007). In a hearing pursuant to this rule, the burden rests on the defendant to show that (1)counsel's performance was deficient, and (2)counsel's deficient performance prejudiced the defense of the defendant. People v. Duran, 757 P.2d 1096 (Colo. App. 1988); People v. Valdez, 789 P.2d 406 (Colo. 1990). Evidentiary hearing was required on defendant's claim of ineffective assistance of counsel, although not every such motion requires an evidentiary hearing. People v. Thomas, 867 P.2d 880 (Colo. 1994). Defendant could not be deprived of opportunity to prove counsel's choices lacked sound strategic motive unless the existing record clearly established otherwise or those choices could not have been prejudicial in any event. Ardolino v. People, 69 P.3d 73 (Colo. App. 2003). Defendant entitled to evidentiary hearing as long as the allegations of his motion, in light of the existing record, were not clearly insufficient to undermine confidence in the outcome of the trial by demonstrating a reasonable probability that but for counsel's challenged conduct, the defendant would not have been convicted. Ardolino v. People, 69 P.3d 73 (Colo. App. 2003). A second Crim. P. 35(c) motion cannot be used procedurally to raise mere ineffective assistance of counsel in a prior Crim. P. 35(c) proceeding. The ineffectiveness of appointed postconviction counsel does not constitute a statutory violation, because a defendant has no statutory right to such counsel. People v. Silva, 131 P.3d 1082 (Colo. App. 2005). Rule does not provide a method for reviewing the punishment assessed in a punitive contempt proceeding. In order to seek relief under this rule, a person must have been convicted of a crime. Conduct that results in punitive sanctions being imposed for contempt is not a common law or statutory crime. Benninghoven v. Dees, 849 P.2d 906 (Colo. App. 1992). Subsection (c)(3) requires a hearing and the entry of findings of fact and conclusions of law where defendant who was mistakenly released from custody before serving second sentence sought credit for time spent at liberty. People v. Stark, 902 P.2d 928 (Colo. App. 1995). Failure to review motion within 60 days as required by subsection (c)(3)(IV) does not entitle defendant to relief nor deprive the court of subject matter jurisdiction. The time limit is properly categorized as directory rather than jurisdictional. People v. Osorio, 170 P.3d 796 (Colo. App. 2007). Requirement that a copy of a motion be served on public defender is triggered when the court finds it necessary to consider matters outside of the motion, files, and record of the case. People v. Davis, 2012 COA 14, 272 P.3d 1167. The district court is required to make findings of fact and conclusions of law in every determination of a motion made pursuant to subsection (c)(3). People v. Breaman, 939 P.2d 1348 (Colo. 1997). A defendant cannot bring an illegal sentence claim under Crim. P. 35(a) if the sentence is consistent with the statutory scheme but imposed in an unconstitutional manner. Instead, the defendant must bring the claim under Crim. P. 35(c)(2)(I). People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006). Prosecution may file a Crim. P. 35(a) motion to correct illegal sentence. People v. White, 179 P.3d 58 (Colo. App. 2007). The court simply stating, in denying a motion made pursuant to subsection (c)(3), that it "accepted appointed counsel's status report" was contrary to the requirement that the court make its own finding of facts and conclusions of law. People v. Breaman, 939 P.2d 1348 (Colo. 1997). Motion for post-conviction relief was timely when filed less than three years after the final decision on defendant's appeal. People v. Rivera, 964 P.2d 561 (Colo. App. 1998). For purposes of the time limit within which a section (c) motion must be filed, a defendant's conviction is final when his or her appeal rights have been exhausted. More specifically, it is final when the supreme court denies defendant's petition for a writ of certiorari and the mandate issues. People v. Stanley, 169 P.3d 258 (Colo. App. 2007). Trial court did not err in denying a section (c) motion as untimely where defendant did not raise a direct appeal or collateral attack of his Virginia conviction until almost 14 years after his conviction had entered. People v. Landis, 9 P.3d 1165 (Colo. App. 2000). A defendant cannot use this rule to relitigate matters fully and finally resolved in an earlier appeal. Moreover an argument will be precluded if its review is nothing more than a second appeal on the same issues on some recently contrived constitutional theory. People v. Rodriguez, 914 P.2d 230 (Colo. 1996); People v. Martinez, 36 P.3d 201 (Colo. App. 2001); Leske v. Golder, 124 P.3d 863 (Colo. App. 2005). A properly filed section (b) motion tolls the one-year limitation period in § 2244(d)(1) of the federal Antiterrorism and Effective Death Penalty Act of 1996. Robinson v. Golder, 443 F.3d 718 (10th Cir.), cert. denied, 549 U.S. 867, 127 S. Ct. 166, 166 L. Ed. 2d 118 (2006). Pro se defendant's failure to file a Crim. P. 35(c) motion on form 4 does not deprive the trial court of subject matter jurisdiction. Section (c)(3)(II) requires only that pro se motions substantially comply with form 4. People v. Stanley, 169 P.3d 258 (Colo. App. 2007). Applied in Sides v. Tinsley, 333 F.2d 1002 (10th Cir. 1964); Sepulveda v. Colo., 335 F.2d 581 (10th Cir. 1964); Watson v. Patterson, 358 F.2d 297 (10th Cir.), cert. denied, 385 U.S. 876, 87 S. Ct. 153, 17 L. Ed. 2d 103 (1966); Terry v. Patterson, 372 F.2d 480 (10th Cir. 1967); Ralston v. People, 161 Colo. 523, 423 P.2d 326 (1967); Roberts v. People, 169 Colo. 115, 453 P.2d 793 (1969); Neighbors v. People, 171 Colo. 349, 467 P.2d 804 (1970); Ward v. People, 172 Colo. 244, 472 P.2d 673 (1970); Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970); People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972); People v. Seymour, 182 Colo. 262, 512 P.2d 635 (1973); People v. Griswold, 190 Colo. 136, 543 P.2d 1251 (1975); People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Lewis, 193 Colo. 203, 564 P.2d 111 (1977); People v. Mendoza, 195 Colo. 19, 575 P.2d 403 (1978); People v. Lipinski, 196 Colo. 50, 580 P.2d 1243 (1978); Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. McKnight, 41 Colo. App. 372, 588 P.2d 886 (1978); Mullins v. Evans, 473 F. Supp. 132 (D. Colo. 1979); Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979); People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979); People v. Calvaresi, 198 Colo. 321, 600 P.2d 57 (1979); People v. Jones, 198 Colo. 578, 604 P.2d 679 (1979); People v. Medina, 199 Colo. 1, 604 P.2d 682 (Colo. 1979); People v. Calloway, 42 Colo. App. 213, 591 P.2d 1346 (1979); People v. West, 42 Colo. App. 217, 592 P.2d 22 (1979); People v. Quintana, 42 Colo. App. 477, 601 P.2d 637 (1979); People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980); Wiggins v. People, 199 Colo. 341, 608 P.2d 348 (1980); People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980); People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980); People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Aragon, 44 Colo. App. 550, 622 P.2d 579 (1980); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981); People v. Loggins, 628 P.2d 111 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Trujillo, 631 P.2d 146 (Colo. 1981); People v. Small, 631 P.2d 148 (Colo. 1981); People v. Macias, 631 P.2d 584 (Colo. 1981); People v. District Court, 636 P.2d 689 (Colo. 1981); People v. Schultheis, 638 P.2d 8 (Colo. 1981); People v. Cushon, 631 P.2d 1164 (Colo. App. 1981); People v. Boivin, 632, P.2d 1038 (Colo. App. 1981); People v. Lawson, 634 P.2d 1019 (Colo. App. 1981); People v. Moore, 636 P.2d 1290 (Colo. App. 1981); People v. Martinez, 640 P.2d 255 (Colo. App. 1981); People v. Mascarenas, 643 P.2d 786 (Colo. App. 1981); People v. Lowery, 642 P.2d 515 (Colo. 1982); People v. Aragon, 643 P.2d 43 (Colo. 1982); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. Montoya, 647 P.2d 1203 (Colo. 1982); People v. Cushon, 650 P.2d 527 (Colo. 1982); People v. Coyle, 654 P.2d 815 (Colo. 1982); People v. Peterson, 656 P.2d 1301 (Colo. 1983); People v. Turman, 659 P.2d 1368 (Colo. 1983); People v. Chavez, 659 P.2d 1381 (Colo. 1983); People v. Martinez, 660 P.2d 1292 (Colo. 1983); People v. McCall, 662 P.2d 178 (Colo. 1983); People v. Giles, 662 P.2d 1073 (Colo. 1983); People v. Brandt, 664 P.2d 712 (Colo. 1983); People v. Lesh, 668 P.2d 1362 (Colo. 1983); People v. Smith, 827 P.2d 577 (Colo. App. 1991); People v. Collier, 151 P.3d 668 (Colo. App. 2006). II. Correction of Illegal Sentence. When an original sentence is illegal, resentencing does not constitute double jeopardy even if the subsequent sentence is longer than the original, and even though the defendant has begun serving the original sentence. People v. District Court, 673 P.2d 991 (Colo. 1983). Court may correct an error in sentencing, and double jeopardy is not implicated when trial court corrects a sentencing error and imposes a longer sentence. People v. White, 179 P.3d 58 (Colo. App. 2007). Where sentence is illegal, sentencing court may correct it at any time. People v. Bradley, 169 Colo. 262, 455 P.2d 199 (1969); Mulkey v. Sullivan, 753 P.2d 1226 (Colo. 1988); Downing v. People, 895 P.2d 1046 (Colo. 1995). The imposition of an illegal sentence may be reviewed and corrected at any time. People v. Favors, 42 Colo. App. 263, 600 P.2d 78 (1979). When an illegal sentence is corrected pursuant to section (a), it renews the three-year deadline for collaterally attacking the original judgment of conviction pursuant to section (c). Leyva v. People, 184 P.3d 48 (Colo. 2008). When original judgment of conviction contains an illegal sentence on one count, the entire sentence is illegal. Leyva v. People, 184 P.3d 48 (Colo. 2008). The sentence is therefore subject to correction and the judgment of conviction is subject to amendment, making the judgment of conviction not final or fully valid. Leyva v. People, 184 P.3d 48 (Colo. 2008). Court has right and duty to set aside void sentence at any time. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972). So long as court retains jurisdiction. Where a trial court has jurisdiction of a person of the defendant and of the subject matter, and has imposed a sentence in error, the court retains jurisdiction to correct the sentence. Conversely, if the original sentence is a valid one, the trial court loses jurisdiction to change the sentence. Smith v. Johns, 187 Colo. 388, 532 P.2d 49 (1975). And where statutory provision changes erroneous sentence automatically, court loses jurisdiction. There is no irreconcilable inconsistency between § 16-11-303 which deals with a person wrongfully sentenced to a definite term in the state reformatory, and section (a) of this rule. Section 16-11-303 , changes the erroneous sentence automatically and a court, in altering the original sentence, acts in excess of jurisdiction. Smith v. Johns, 187 Colo. 388, 532 P.2d 49 (1975). The term "illegal sentence" no longer appears in section (a). That sentence was replaced with "a sentence that was not authorized by law". Under the current version of section (a), the only circumstance in which a sentence is "not authorized by law" is when it is inconsistent with the statutory scheme outlined by the legislature. People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006); People v. Collier, 151 P.3d 668 (Colo. App. 2006). Illegal sentence is a sentence not in full compliance with sentencing statutes. Delgado v. People, 105 P.3d 634 (Colo. 2005); People v. White, 179 P.3d 58 (Colo. App. 2007). The sentence included an illegal parole term, therefore, it was an illegal sentence in its entirety. The imposition of an illegal sentence does not commence the 120-day deadline for filing a section (b) motion; only legal sentences trigger the rule's timeliness requirement. Delgado v. People, 105 P.3d 634 (Colo. 2005). Because an illegal sentence represents a type of jurisdictional defect, the trial court retains the authority to correct its own error. The 120-day time limit applies only if the court is asked to "correct a sentence imposed in an illegal manner". If the sentence itself is illegal, the court may act at any time. People v. White, 179 P.3d 58 (Colo. App. 2007). Defendant's claim that he was not given complete range of testing required by statute prior to sentencing is, in essence, a claim that the sentence was imposed in an illegal manner under section (a), and should have been asserted within 120 days of sentencing. People v. Collier, 151 P.3d 668 (Colo. App. 2006). Jurisdiction of appellate court. Where the district attorney claims that the trial court improperly considered the presumptive sentencing law and the defendant's conduct in prison as factors in evaluating a motion under section (b) for reduction of sentence, and that the trial court gave no consideration to the aggravated nature of the crimes for which the defendant was convicted, these claims are questions of law implicating the propriety of the proceeding itself and are sufficient to invoke appellate jurisdiction. People v. Bridges, 662 P.2d 161 (Colo. 1983). Matter of illegal sentence need not be raised on appeal. There is no requirement contained in this rule that the matter of an illegal sentence must be raised on appeal from the conviction or be thereafter waived. People v. Bradley, 169 Colo. 262, 455 P.2d 199 (1969). Successive postconviction motions under subsection (a) subject to law of the case doctrine. Under law of the case doctrine, where appropriate, a court may overlook the doctrine and grant relief where manifest injustice would result. People v. Tolbert, 216 P.3d 1 (Colo. App. 2007). Sentence to mandatory parole for attempted sexual assault committed between July 1, 1996 and July 1, 2002 is illegal. People v. Tolbert, 216 P.3d 1 (Colo. App. 2007). Action of judge in changing sentence without notice and hearing improper. The action of the sentencing judge in changing an original sentence without notice to the defendant and without opportunity for a hearing is improper, for while this rule permits a judge to correct a sentence of his own motion, where proper grounds exist, it does not permit him to do so without notice to the prisoner and an opportunity afforded for a hearing. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). Inmate had a protected liberty interest in a suspended sentence where his original sentence mandated a 10-year suspension when and if defendant could show successful completion of sex offender treatment. Defendant was entitled to due process protections before the trial court could modify the sentence. The court's order vacating the 10-year sentence reduction, sua sponte, denied defendant due process of law. The court erred in denying defendant's section (a) motion to correct the illegal sentence. People v. Sisson, 179 P.3d 193 (Colo. App. 2007). Upon defendant commencing sentence, judge cannot change sentence upon parole board's recommendation. The sentencing judge does not have the authority on the recommendation of the parole board to change a sentence he imposed upon a defendant after he commences serving his sentence, for such authority is present only when the sentence is erroneous or void under section (a), and not where the original sentence imposed is legal. Guerin v. Fullerton, 154 Colo. 142, 389 P.2d 84 (1964). And trial court cannot alter or amend commuted sentence imposed by the governor, because he has the exclusive power to grant reprieves, commutations, and pardons after conviction under § 7 of art. IV, Colo. Const. People ex rel. Dunbar v. District Court, 180 Colo. 107, 502 P.2d 420 (1972). Where several sentences concurrent, argument that some of sentences invalid falls. Where the defendant assumes that his sentences for several crimes are to run consecutively, but the governing judgments made the serving of all the sentences concurrent, the argument that some, but not all, sentences are invalid falls. Santistevan v. People, 177 Colo. 329, 494 P.2d 75 (1972). Sentence illegal where defendant not afforded benefit of amendatory legislation. A sentence imposed by the trial court which does not afford the defendant the benefit of amendatory legislation is not a valid and legal sentence. As such, it was subject to correction by the trial court at any time. People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977). But defendant convicted of theft by receiving does not receive ameliorative benefit when retroactive application of amendatory legislation is clearly not intended by its own terms. Legislation that amended theft by receipt statute to provide that amendment shall apply to acts committed on or after July 1, 1985 makes it clear that amendment is to be applied prospectively only. People v. McCoy, 764 P.2d 1171 (Colo. 1988). Court may correct sentence to conform to "nolo contendere" plea. Error is harmless where after a court corrects a sentence it conforms to the advisement given a defendant pursuant to a plea of "nolo contendere". People v. Baca, 179 Colo. 156, 499 P.2d 317 (1972). Sentence in error because extraordinary aggravating circumstances not found. Judge erred in sentencing a 19-year old beyond the presumptive range because extraordinary aggravating circumstances justifying the sentence were not found even though the defendant was accused of committing five felonies in a nine-month period, including an arrest while on probation. People v. Jenkins, 674 P.2d 981 (Colo. App. 1983), rev'd on other grounds, 687 P.2d 455 (Colo. 1984). An unlawful sentence may be corrected by a sentencing court at any time. People v. Reynolds, 907 P.2d 670 (Colo. App. 1995). Court may correct the mittimus where the trial court neglected to specify that its sentence included a mandatory period of parole. People v. Mayes, 981 P.2d 1106 (Colo. App. 1999). Post-conviction motions that challenge the manner in which a plea is taken, such as whether the person was properly advised about the plea, are not challenges to the legality of the sentence and are properly brought pursuant to section (c), not section (a). People v. Green, 36 P.3d 125 (Colo. App. 2001); People v. Salinas, 55 P.3d 268 (Colo. App. 2002). Post-conviction motion challenging revocation of probation without a determination of ability to pay restitution should be brought under section (c), not section (a). People v. Shepard, 151 P.3d 580 (Colo. App. 2006). There is no constitutional right to credit of presentence jail time against sentence imposed. People v. Coy, 181 Colo. 393, 509 P.2d 1239 (1973). There is no constitutional right to credit for time spent in jail before sentence. People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). But credit for presentence jail time presumed. Wherever it is possible, as a matter of mechanical calculation, that credit could have been given for presentence jail time, it will be conclusively presumed that it was given. This means that where the actual sentence imposed plus the time spent in jail prior to sentence do not exceed the maximum sentence which could be imposed, it will be conclusively presumed that the sentencing court gave the defendant credit for the presentence time spent in confinement. Maciel v. People, 172 Colo. 8, 469 P.2d 135 (1970). Where sentencing judge states only that he is taking time spent in jail prior to sentencing into consideration and thereafter gives the maximum, it must be presumed that he acted properly; that is, that he took the time spent into consideration and determined, as he had the right to do, not to grant the credit. People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973). And such rule outweighs any possible unfairness. The problems and expenditure of resources which would be caused by allowing each prisoner to attempt to demonstrate that in his particular case credit for presentencing confinement was not given outweighs any possible unfairness. Maciel v. People, 172 Colo. 8, 469 P.2d 135 (1970). Defendants found not entitled to credit for presentence jail time. People v. Puls, 176 Colo. 71, 489 P.2d 323 (1971). Use of polygraph results precluded at hearing to correct sentence. A jury determination of a defendant's guilt, which is upheld on appeal, precludes the use of the results of a polygraph examination on the issue of the defendant's guilt at a hearing to correct a sentence. People v. Reynolds, 638 P.2d 43 (Colo. 1981). Department of corrections may not intervene in a criminal case in order to file a motion to correct an illegal sentence. People v. Ham, 734 P.2d 623 (Colo. 1987). Appellate review precluded by the failure of the people to object at the sentencing hearing to the imposition of a sentence within the presumptive range when the defendant was convicted of possession of contraband while in a correctional institution, or to request the trial court, pursuant to this rule, to correct the sentence. People v. Gallegos, 764 P.2d 76 (Colo. 1988). If court determines sentence must be vacated, if original sentence was based at least in some important part upon the testimony of witnesses at original sentencing hearing, and if original sentencing judge unavailable, there must be a new evidentiary hearing granted before a new sentence can be imposed. People v. Chetelat, 833 P.2d 771 (Colo. App. 1991). Rule does not provide a method for reviewing the punishment assessed in a punitive contempt proceeding. In order to seek relief under this rule, a person must have been convicted of a crime. Conduct that results in punitive sanctions being imposed for contempt is not a common law or statutory crime. Benninghoven v. Dees, 849 P.2d 906 (Colo. App. 1992). Claim that trial court's amended judgment and mittimus unlawfully increased defendant's sentence should have been brought as a motion to correct an illegal sentence. Graham v. Cooper, 874 P.2d 390 (Colo. 1994) (decided prior to 2004 amendment). A claim that the trial court aggravated a sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is cognizable under section (c) and not section (a). People v. Collier, 151 P.3d 668 (Colo. App. 2006). Court order that changed sentence by eliminating suspended portion of it constituted an imposition of a sentence within the meaning of section (a) of this rule. Defendant was entitled, therefore, to proceed under section (a) to obtain relief. People v. Sisson, 179 P.3d 193 (Colo. App. 2007). Where defendant's challenge alleges that department of corrections (DOC) sentenced him under the wrong discretionary parole statute, section (a) does not give the trial court the authority to decide the issues raised in the defendant's motion because defendant's challenge was not to his sentence, but rather to an act of the DOC. People v. Huerta, 87 P.3d 266 (Colo. App. 2004). The court properly corrected illegal sentence, pursuant to a motion under section (c), but preserved provisions of valid and legal plea agreement. People v. Antonio-Antimo, 29 P.3d 298 (Colo. 2000). By entering into a plea agreement, defendant waives his or her Apprendi right to have any fact (the crime of violence charge) that increases the penalty beyond the prescribed maximum submitted to a jury and proved beyond a reasonable doubt. The plea agreement stated defendant waived his right to a jury trial and the right to have every element proven beyond a reasonable doubt. Thus, by pleading guilty the defendant waived the right to a factual basis for the charge and in effect admitted beyond a reasonable doubt the elements of the offense. People v. Munkus, 60 P.3d 767 (Colo. App. 2002); People v. Andracki, 68 P.3d 526 (Colo. App. 2002). In the case of the defendant's plea agreement, the term "illegal sentence" should be given its plain and ordinary meaning. Defendant's plea agreement did not use that term in the sense that it is used in this rule. In interpreting a plea agreement, the court focuses on the meaning a reasonable person would have attached to the agreement at the time the agreement was entered into. A reasonable person would understand the term "illegal sentence" as used in defendant's plea agreement to mean a sentence that is unlawful in some way. Defendant did not violate her plea agreement because the agreement did not waive her right to raise a challenge under Blakely v. Washington, 542 U.S. 296, 24 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to her aggravated sentence on appeal. Because defendant did not violate her plea agreement, the prosecution cannot withdraw from it. People v. Barton, 174 P.3d 786 (Colo. 2008). Failure to consider and fix amount of restitution at sentencing results in illegal sentence. People v. Dunlap, 222 P.3d 364 (Colo. App. 2009). Finality of judgment of conviction not affected by illegal sentence due to failure to consider and fix restitution at time of sentencing in circumstances where defendant has already directly appealed conviction and lost and, likewise, has failed to obtain postconviction relief from trial court and review by appellate court. Defendant may neither appeal anew from original conviction or the denial of a postconviction motion, nor may defendant seek application of cases announced after the conclusion of the direct appeal. People v. Dunlap, 222 P.3d 364 (Colo. App. 2009). Exclusion of DNA evidence not required. Where DNA evidence was obtained from defendant as a condition of probation as part of a plea bargain that resulted in an illegal sentence, the case does not implicate the judicially created exclusionary rule: (1) Constitutional error did not involve the police; and (2) the conduct failed the "assessment of flagrancy" test in that the conduct was not sufficiently deliberate that exclusion could meaningfully deter it. People v. Glasser, __ P.3d __ (Colo. App. 2011). Defendant's claim that the trial court erred in determining the amount of restitution is timed barred. Defendant is neither challenging the statutory basis for the award of restitution nor the court's subject matter jurisdiction to enter the order, but the manner in which the restitution hearing was conducted. A claim that the sentence was imposed in an illegal manner must be brought within 120 days. People v. Bowerman, 258 P.3d 314 (Colo. App. 2010). Guilty verdicts for both attempted after deliberation first degree murder and attempted extreme indifference first degree murder did not require inconsistent findings of fact; therefore, the sentences were not illegal. The information alleged different victims for the different charges, so it is not inconsistent to conclude that defendant had the specific intent to take the life of the specific targets and also showed an extreme indifference to life in general to the other persons. People v. Stovall, 2012 COA 7, __ P.3d __. III. Reduction of Sentence. A. In General. Rule constitutional. Section (b) is a valid procedural rule promulgated pursuant to the rule-making power of the supreme court under § 21 of art. VI, Colo. Const., and it does not encroach upon the governor's exclusive power of commutation under § 7 of art. IV, Colo. Const. People v. Smith, 189 Colo. 50, 536 P.2d 820 (1975). As section (b), which suspends the finality of the conviction for a period of 120 days from the time sentence is imposed, or for 120 days after final disposition on appeal, to allow the filing of a motion for a reduction of sentence in the trial court, suspends the concept of finality of a criminal judgment of conviction, the rule does not offend the separation of powers doctrine under art. III, Colo. Const., nor the executive power of commutation. The court retains jurisdiction during the 120-day period for the filing of a motion for reduction of sentence. People v. Smith, 189 Colo. 50, 536 P.2d 820 (1975). Rule allows court to reconsider, in interests of justice, the sentence previously imposed, in the light of all relevant and material factors in the particular case which may or may not have been initially considered by the court and, in its sound discretion, to resentence the defendant to a lesser term within the statutory limits. People v. Smith, 189 Colo. 50, 536 P.2d 820 (1975); People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980). This rule provides the trial court an opportunity to reconsider, in the interest of justice, a sentence previously imposed. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). The purpose of section (b) is to permit the trial court to reexamine the propriety of a sentence previously imposed. People v. Lyons, 44 Colo. App. 126, 618 P.2d 673 (1980). But section (b) cannot expand the trial court's authority in resentencing beyond that which it had initially. Death penalty statute, as it existed in 1993, mandated that a death sentence shall be binding unless the court, pursuant to the statute, determines the verdict was clearly erroneous. The trial court's determination that the sentence was not clearly erroneous, therefore, precludes granting postconviction relief under section (b) of this rule. People v. Dunlap, 36 P.3d 778 (Colo. 2001), cert. denied, 534 U.S. 1095, 122 S. Ct. 884, 151 L. Ed. 2d 722 (2002). But failure to appeal initial sentence forecloses later challenge. A defendant who fails to appeal an initial sentence is foreclosed from challenging that sentence later by means of motion under section (b). People v. Boykin, 631 P.2d 1149 (Colo. App. 1981) (but see Mikkleson v. People, 199 Colo. 319, 618 P.2d 1101 (1980)); Swainson v. People, 712 P.2d 479 (Colo. 1986). More than one sentence reduction is not permitted by former § 16-11-309 when read in conjunction with this rule. Although multiple sentence reductions are permitted under this rule if the sentence is reduced to a term within statutory limits, more than one sentence reduction under former § 16-11-309 would be outside the statutory limits. People v. Belgard, 58 P.3d 1077 (Colo. App. 2002). Jurisdiction to modify sentence retained only until conviction final. A trial court retains jurisdiction to take a "second look" at a sentence previously imposed only before the judgment of conviction underlying the sentence has become final. People v. Lyons, 44 Colo. App. 126, 618 P.2d 673 (1980); Swainson v. People, 712 P.2d 479 (Colo. 1986). If an illegal sentence is imposed, the time for filing a Crim. P. 35(b) motion does not start to run. The time period is triggered only by the imposition of a legal sentence. People v. Dean, 894 P.2d 13 (Colo. App. 1994). And conviction final 120 days after sentence imposed or appellate process concluded. For purposes of the rule's sentence reduction provisions, a conviction is final 120 days after the imposition of sentence when that conviction is not appealed, and 120 days after the conclusion of the appellate process if the conviction or sentence is directly appealed. People v. Lyons, 44 Colo. App. 126, 618 P.2d 673 (1980); Swainson v. People, 712 P.2d 479 (Colo. 1986). Where the defendant does not appeal his conviction but, some years later, challenges his conviction by a motion under section (c), which motion is denied by the trial court, the court of appeals' affirmance of the trial court's denial is not a "judgment" of that court "having the effect of upholding a judgment of conviction" and, thus, does not trigger a new 120-day period for filing a section (b) motion for reduction of sentence. People v. Akins, 662 P.2d 486 (Colo. 1983). Timely filing of a Crim. P. 35(b) motion suspends finality of sentence while the court reconsiders the original sentence. There is no support for the view that a sentence is final once a mandate is received. Ghrist v. People, 897 P.2d 809 (Colo. 1995). Framework for review of motions under section (b). First, the reviewing court must determine the timeliness of the motion, considering both when it is filed and when it is heard. The defendant's motivation for any delay attributable to the defendant is relevant to this determination, but delays that result from the court's inability to hear the matter should not be assessed against the defendant. Second, the court may consider all evidence presented at the hearing. Ghrist v. People, 897 P.2d 809 (Colo. 1995). Section (b) of this rule does not limit the evidence the trial court may consider. Ghrist v. People, 897 P.2d 809 (Colo. 1995). Decision to reduce a sentence is entrusted to the sound discretion of the trial court. Ghrist v. People, 897 P.2d 809 (Colo. 1995). Defendant required to file motion for reduction of sentence within 120 days after the date of successful completion of regimented inmate training program. This rule provides a 120-day time limitation for the filing of a motion for reduction of sentence, and § 17-27.7-104 requires that a motion to reduce sentence must be brought pursuant to Crim. P. 35(b). People v. Campbell, 75 P.3d 1151 (Colo. App. 2003). Jurisdiction retained after 120 days. If the defendant was unconstitutionally deprived of the opportunity to file his motion because of ineffective assistance of counsel, the trial court would have jurisdiction 120 days after the sentence is imposed and could extend the time limit for filing. Swainson v. People, 712 P.2d 479 (Colo. 1986). Therefore, it was error for the district court to dismiss defendant's motion without making any factual findings, on his claim of ineffective assistance of counsel. Swainson v. People, 712 P.2d 479 (Colo. 1986). One hundred twenty days to file a motion is not extended by Crim. P. 45 based upon family considerations or lack of knowledge of the law. The only excusable neglect recognized for extending the time to file a rule 35 motion is ineffective assistance of counsel. People v. Delgado, 83 P.3d 1144 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 634 (Colo. 2005). Defendant should not be penalized for pursuing his right of appeal, or for any delay in deciding that matter. Ghrist v. People, 897 P.2d 809 (Colo. 1995). But, change in parole board policy not grounds for modification of defendant's sentence under subsection (c)(2)(v), and section (b) does not provide basis for review of a sentence if motion filed beyond 120-day time period required by rule. People v. Sorenson, 824 P.2d 38 (Colo. App. 1991). When defendant has filed a motion for reduction of sentence within 120 days after the imposition of sentence, this rule vests the court with jurisdiction to rule on the motion for a reasonable period of time after the expiration of the 120-day filing period. If the court fails to rule within a reasonable period of time, and the defendant fails to take reasonable efforts to secure an expeditious ruling on the motion, the motion may be deemed abandoned. People v. Fuqua, 764 P.2d 56 (Colo. 1988); People v. Cagle, 807 P.2d 1233 (Colo. App. 1991); Herr v. People, 198 P.3d 108 (Colo. 2008). Delay for the purpose of establishing a record of good behavior in the department of corrections is impermissible. A Crim. P. 35(b) motion is not a license to wait and reevaluate the sentencing decision in the light of subsequent developments. People v. Piotrowski, 855 P.2d 1 (Colo. App. 1992); Ghrist v. People, 897 P.2d 809 (Colo. 1995). Burden of going forward with motion pursuant to section (b) is on the defendant and a delay of 532 days is unreasonable and indicates that defendant abandoned the motion. Mamula v. People, 847 P.2d 1135 (Colo. 1993). Appeal of final judgment terminates trial court jurisdiction and does not restore it until the events described in subsections (2) and (3) of section (b) take place. People v. District Court, 638 P.2d 65 (Colo. 1981). Executive branch authorized to modify sentence after conviction final. The executive branch of government, not the judiciary, has the sole authority to modify a legally imposed criminal sentence after the conviction upon which it is based has become final. People v. Lyons, 44 Colo. App. 126, 618 P.2d 673 (1980). Power to alter sentence at time of revocation of probation is explicitly recognized in § 16-11-206(5), Crim. P. 32(f)(5), and section (b) of this rule. People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977) (decided prior to 1979 amendment of this rule). Court obligated to exercise discretion in deciding whether to modify previously imposed sentence. The court has an affirmative obligation to exercise judicial discretion in deciding whether to modify the sentence previously imposed and to base the decision on relevant evidence, not personal whim. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977); People v. Culbertson, 198 Colo. 153, 596 P.2d 1200 (1979); People v. Dunlap, 36 P.3d 778 (Colo. 2001), cert. denied, 534 U.S. 1095, 122 S. Ct. 884, 151 L. Ed. 2d 722 (2002). Implicit in a proceeding pursuant to section (b) is the duty of the trial court to use its discretion when considering the defendant's motion. Mikkleson v. People, 199 Colo. 319, 618 P.2d 1101 (1980); People v. Ellis, 873 P.2d 22 (Colo. App. 1993). Where evidence in support of defendant's section (b) motion was nearly identical to that presented at the sentencing hearing, trial court effectively considered all relevant evidence, and the findings it made at the sentencing hearing were sufficient to support its later exercise of discretion in denying defendant's motion. People v. Busch, 835 P.2d 582 (Colo. App. 1992); People v. Dunlap, 36 P.3d 778 (Colo. 2001), cert. denied, 534 U.S. 1095, 122 S. Ct. 884, 151 L. Ed. 2d 722 (2002). And is trial court's duty to consider all relevant and material factors, including new evidence, as well as facts known at the time the original sentence was pronounced. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977); People v. Culbertson, 198 Colo. 153, 596 P.2d 1200 (1979); People v. Ellis, 873 P.2d 22 (Colo. App. 1993). The trial court in proceedings pursuant to section (b) must consider all relevant and material factors which may affect the decision on whether to reduce the original sentence. Mikkleson v. People, 199 Colo. 319, 618 P.2d 1101 (1980). But judicial discretion is not personal discretion. Judicial discretion cannot be distorted to camouflage or insulate from appellate review a decision based on the judge's personal caprice, hostility, or prejudice. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). Personal whim, hostility, or prejudice must not be basis for trial court's decision. People v. Culbertson, 198 Colo. 153, 596 P.2d 1200 (1979). Court considering a motion for reduction of sentence filed pursuant to § 17-27.7-104 must give complete consideration to all pertinent information provided by the offender, the offender's attorney, and the district attorney. People v. Smith, 971 P.2d 1056 (Colo. 1999). Trial court properly exercised judicial discretion under this section and complied with requirements of § 17-27.7-104 where, after careful review of case file, pre-sentence report, recommendation from regimented training program, and documents submitted by defendant, defendant's attorney, and prosecution, the court concluded that crime of vehicular assault was serious enough to warrant denial of motion for sentence reduction after completion of regimented inmate training program under § 17-27.7-103 . People v. Ellis, 873 P.2d 22 (Colo. App. 1993). Trial court gave complete consideration to defendant's Crim. P. 35(b) motion even though the record did not contain any information provided by defendant, his attorney, or the district attorney after defendant's acceptance into the regimented inmate training program. The court should not be precluded from ruling on defendant's motion simply because none of those entitled to provide additional information to the court chose to do so. People v. Morales-Uresti, 934 P.2d 856 (Colo. App. 1996). Defendant's argument that his denial for sentence reduction was based on race was without merit. Although defendant alleged that because he was African-American, he had been treated more harshly than a Caucasian inmate whose sentence had been modified, the two offenders were convicted of different offenses. People v. Ellis, 873 P.2d 22 (Colo. App. 1993). District attorney may withdraw from plea agreement when judge modifies sentence imposed. If a trial judge in the exercise of his discretion under this rule modifies or reduces a sentence imposed pursuant to a plea agreement, the district attorney must be permitted, in his discretion, to withdraw from the plea agreement, reinstate the charges which were dismissed, and proceed to trial as though no agreement had been made. People ex rel. VanMeveren v. District Court, 195 Colo. 34, 575 P.2d 4 (1978). But district attorney not permitted to withdraw from plea agreement when sentence reduced pursuant to the regimented inmate training program in § 17-27.7-104 . Because the plea agreement did not foreclose the future possibility of a reduction in sentence, the court-ordered sentence reduction could not amount to a substantial and material breach of the agreement between the parties. Keller v. People, 29 P.3d 290 (Colo. 2000). Generally, ruling on section (b) motion deemed final judgment, reviewable on appeal. When the trial court rules on a defendant's motion, filed pursuant to section (b), it is a final judgment as to the issue raised, and such ruling, except where the issue is propriety of sentence, is reviewable on appeal to the appropriate court. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980). There is no right of appeal as to a trial court's denial of a motion for reduction of sentence under this rule when the issue presented to and resolved by the court concerns the propriety of the sentence. People v. Busch, 835 P.2d 582 (Colo. App. 1992). Standard of review of sentencing by trial court is whether court abused discretion. People v. Mikkleson, 42 Colo. App. 77, 593 P.2d 975 (1979), rev'd on other grounds, 199 Colo. 314, 618 P.2d 1101 (1980); People v. Hudson, 709 P.2d 77 (Colo. App. 1985). And decision not reversed on appeal absent abuse. Absent an abuse of discretion, the decision of the reviewing court on a motion for the reduction of sentence under this rule will not be reversed. People v. Sundstrom, 638 P.2d 831 (Colo. App. 1981). American bar association standards relating to appellate review of sentences were used by court of appeals to review sentence imposed by trial court. People v. Hudson, 709 P.2d 77 (Colo. App. 1985). Disjunctive provisions of section (b) intended to recognize the different times at which a sentence might become final. People v. Cagle, 807 P.2d 1233 (Colo. App. 1991). Defendant cannot appeal motion's denial where issue one of propriety of sentence. A defendant has no right to appeal a denial of his motion filed pursuant to section (b) where the issue before the appellate court is the propriety of his sentence. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980); McKnight v. People, 199 Colo. 313, 607 P.2d 1007, cert. denied, 449 U.S. 873, 101 S. Ct. 214, 66 L. Ed. 2d 94 (1980); People v. Kerns, 629 P.2d 102 (Colo. 1981). Where the intrinsic fairness of defendants' sentence is reviewed by the trial court in proceedings pursuant to section (b), those determinations are not reviewed again on appeal. People v. Lopez, 624 P.2d 1301 (Colo. 1981). An argument challenging the intrinsic fairness of the sentence imposed and not the sentencing procedure utilized by the trial court will not be reconsidered on appeal to the supreme court. People v. Nemnich, 631 P.2d 1121 (Colo. 1981). There is no right of appeal to the denial by a trial court of a section (b) motion where the issue presented and resolved concerns the propriety of the sentence. People v. Dennis, 649 P.2d 321 (Colo. 1982). Or where issue treated as such. An appeal of the trial court's reduction of the defendant's sentence pursuant to this rule, seeking a further reduction of the sentence, is treated as an appeal of the "denial" of a section (b) motion raising the issue of the "propriety of the sentence", and is therefore dismissed. People v. Foster, 200 Colo. 283, 615 P.2d 652 (1980). Court may not sua sponte treat section (b) proceeding as section (c) proceeding. People v. Guitron, 191 Colo. 284, 552 P.2d 304 (1976). Failure of trial court to exercise any discretion renders proceeding defective. The failure of a trial court to exercise any discretion at all in reviewing a section (b) motion in effect renders the proceeding itself defective, and an appeal therefrom directly raises the issue of the propriety of that proceeding. Mikkleson v. People, 199 Colo. 319, 618 P.2d 1101 (1980). Such as where court refuses to consider mitigation information or make findings. It is only in such situations where the trial court has refused to consider any information in mitigation and does not make findings in support of its decision, that an error in denying a section (b) motion is sufficient to invoke appellate jurisdiction. Mikkleson v. People, 199 Colo. 319, 618 P.2d 1101 (1980). Where trial judge acts arbitrarily or capriciously, judgment vacated. Where the trial court exercises its discretion arbitrarily or capriciously, basing its decision to deny the petitioner's motion under section (b) on personal considerations rather than on the evidence, the trial court's judgment is vacated, and the motion is remanded for a prompt hearing before a different trial judge. Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). Facts constituting abuse of discretion regarding court denial of work-release program. People v. Morrow, 197 Colo. 244, 591 P.2d 1026 (1979). Court may not increase an offender's original sentence unless it was erroneously imposed or is void. Downing v. People, 895 P.2d 1046 (Colo. 1995). Term of imprisonment that was longer than offender's original sentence constituted an increase in the sentence for purposes of section (b), regardless of whether the sentence was served in a community corrections facility under less severe conditions. Downing v. People, 895 P.2d 1046 (Colo. 1995). Since the granting of probation greatly reduces the level of restraint imposed on defendant, essentially allowing him to remain at liberty while complying with the terms of his probation, it does constitute a reduction under section (b), even when the length of the sentence increased. People v. Santana, 961 P.2d 498 (Colo. App. 1997). B. Proportionality Review. Proportionality determinations are reviewed de novo on appeal, because an appellate court is not bound by a trial court's conclusions of law. People v. Medina, 926 P.2d 149 (Colo. App. 1996). Three-part test adopted by U.S. supreme court in Solem v. Helm applies when reviewing proportionality of sentences under habitual-criminal statutes: (1) The gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the same crime in other jurisdictions. People v. Cisneros, 855 P.2d 822 (Colo. 1993). Request for proportionality review alleging that sentence violates the eighth amendment to the U.S. constitution is subject to the limitation period set forth in § 16-5-402 . People v. Moore-El, 160 P.3d 393 (Colo. App. 2007). Concurrent life sentences held disproportionate where underlying crimes were relatively minor, none posed a major threat to society, and although defendant had a lengthy record, approval of a life sentence under the circumstances would drastically lower the "grave and serious" threshold. People v. Medina, 926 P.2d 149 (Colo. App. 1996). IV. Other Postconviction Remedies. A. General Purpose and Scope of Postconviction Review. Postconviction relief is founded upon constitutional principles. People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). Rule is concerned with the validity of a sentence and judgment. Saiz v. People, 156 Colo. 43, 396 P.2d 963 (1964). A request for return of property is not within the scope of this rule, which is limited to challenges to a defendant's conviction or sentence. People v. Wiedemer, 692 P.2d 327 (Colo. App. 1984). Court may not sua sponte treat section (b) proceeding as section (c) proceeding. Where the proceeding is simply a proceeding under section (b) for the reduction of sentence, it is not within the province of the court, sua sponte, to treat it as a proceeding under section (c) and pass upon whether the defendant's guilty plea should be set aside, even though it is argued that the reduction was a part of a plea bargaining. People v. Guitron, 191 Colo. 284, 552 P.2d 304 (1976). Unless motion clearly raises section (c) issues. Where the defendant's motion seeks relief under section (b), but in substance it clearly raises issues and seeks relief available under section (c), the motion should be considered a motion for postconviction relief under section (c). People v. Ivery, 44 Colo. App. 511, 615 P.2d 80 (1980). Rule sets forth standards and procedure for postconviction relief. This rule sets the applicable standards and procedure required of a court when a motion to vacate, set aside, or correct a sentence is filed. Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965). And this rule similar to federal provision. Section (c) of this rule provides a method for postconviction relief to those sentenced by state courts in Colorado which is substantially the same as that of 28 U.S.C. § 2255. Henry v. Tinsley, 344 F.2d 109 (10th Cir. 1965); Ruark v. Tinsley, 350 F.2d 315 (10th Cir. 1965); Saxton v. Patterson, 370 F.2d 112 (10th Cir. 1966); Breckenridge v. Patterson, 374 F.2d 857 (10th Cir. 1967), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19 L. Ed. 2d 56 (1967). Section (c) of this rule authorizes postconviction relief without regard to time limitations for any sentence that "exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law". People v. Emig, 676 P.2d 1156 (Colo. 1984). Rule creates entirely new postconviction remedy. Section (c) of this rule is intended to fill the void created by the narrowness of the Colorado concept of "habeas corpus" by creating an entirely new postconviction remedy. Peters v. Dillon, 227 F. Supp. 487 (D. Colo. 1964), aff'd, 341 F.2d 337 (10th Cir. 1965). And attains same purpose as obsolete "habeas corpus" writ. The writ of "habeas corpus coram nobis" being obsolete, its purpose now is attained by the filing of a motion to set aside judgment. Grandbouche v. People, 104 Colo. 175, 89 P.2d 577 (1939); Hackett v. People, 158 Colo. 304, 406 P.2d 331 (1965). This rule affords all remedies which are available through writ of "habeas corpus". People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972); People v. Santisteven, 868 P.2d 415 (Colo. App. 1993). Section (c) affords a convicted person all the remedies which are available through a writ of habeas corpus. People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). An improperly filed pro se habeas corpus petition should be treated as a Crim. P. 35(c) motion in order to provide review on the merits of the claims raised by a petitioner. Chatfield v. Colo. Court of Appeals, 775 P.2d 1168 (Colo. 1989). Pro se habeus corpus petition was improperly filed in case where an invalid judgment of conviction and sentence were rendered since relief was available under this rule and Crim. P. 36 and the district court should have treated petition as motion under subsection (c)(2) of this rule. Kailey v. Colo. Dept. of Corr., 807 P.2d 563 (Colo. 1991). Rather than dismissing an improper habeas corpus petition, the court should convert such petition into a motion under section (c) of this rule where the petitioner is acting pro se, the petitioner raises issues in the habeas corpus petition which should have been raised in a motion under section (c) of this rule, and the petitioner's claims are not barred by the statute of limitations. Graham v. Gunter, 855 P.2d 1384 (Colo. 1993). "Habeas corpus" is not proper remedy to gain review of purported constitutional violations. Breckenridge v. Patterson, 374 F.2d. 857 (10th Cir. 1967), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19, L. Ed. 2d 56 (1967). Rather, the proper procedure is motion under this rule, followed by an appeal. Breckenridge v. Patterson, 374, F.2d 857 (10th Cir.), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19 L. Ed. 2d 56 (1967). And "habeas corpus" petition raising constitutional questions treated as motion under this rule. Where the issues before a trial court in a "habeas corpus" proceeding raise substantive constitutional questions, the issues are within the purview of postconviction remedy, and the petition for "habeas corpus" will be treated as a motion under section (c). Dodge v. People, 178 Colo. 71, 495 P.2d 213 (1972). Under subsection (c)(3), the court must hold an evidentiary hearing unless the motion, the files, and the record of the case clearly establish that the allegations presented in the motion are without merit and do not warrant postconviction relief. White v. Denver District Court, 766 P.2d 632 (Colo. 1988). A habeas corpus petition that seeks relief available under this rule should be treated as a Crim. P. 35 motion based upon the substantive constitutional issues raised therein, rather than upon the label placed on the pleading. White v. Denver Dist. Ct., 766 P.2d 632 (Colo. 1988); DePineda v. Price, 915 P.2d 1278 (Colo. 1996). Defendant's challenges to procedures by which he was sentenced rather than the legality of his confinement may be raised by means of a motion under section (c) but not by means of a habeas corpus petition. Jones v. Zavaras, 926 P.2d 579 (Colo. 1996). Prisoner required to pursue remedies under rule before petitioning for "habeas corpus". The requirement that a prisoner must pursue his remedies under this rule before petitioning for "habeas corpus" does not constitute a suspension of the writ of "habeas corpus". People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972). So trial court judge abuses discretion when prematurely proceeds with "habeas corpus" hearing. When a motion for postconviction relief is heard and denied by one trial court judge and an appeal is pending, if the defense attorney files a "habeas corpus" petition on the same grounds, it is an abuse of discretion for a second trial court judge to proceed with a hearing on the "habeas corpus" petition. People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972). A motion under section (c) must be filed in the sentencing court because that court maintains the records relating to the conviction and sentence. Jones v. Zavaras, 926 P.2d 579 (Colo. 1996). Defendant may proceed pro se during postconviction proceedings pursuant to this rule. People v. Jones, 665 P.2d 127 (Colo. App. 1982). Contention that defendant has been wrongfully deprived of confinement credit is properly put forward in a motion under this rule at the time when defendant claims a right to be released. People v. Lepine, 744 P.2d 81 (Colo. 1987). An order of a trial court granting or denying a motion filed under section (c) of this rule is a final order reviewable on appeal. Such order becomes final after the period in which to perfect an appeal expires. People v. Janke, 852 P.2d 1271 (Colo. App. 1992). This rule governing postconviction remedies did not provide basis for granting habeas corpus relief where petition was not filed under postconviction rule, even though petition was assigned case number of petitioner's original criminal action. People v. Calyer, 736 P.2d 1204 (Colo. 1987). Defendant's motion does not seek relief from the judgment and sentence of the trial court but rather against the department of corrections. Therefore, it is not a claim cognizable under section (c). People v. Carrillo, 70 P.3d 529 (Colo. App. 2002). This rule does not address postconviction claim that defendant is being unconstitutionally denied the opportunity to be considered for parole. Naranjo v. Johnson, 770 P.2d 784 (Colo. 1989). Former clients are not required to obtain postconviction relief before bringing a malpractice action against their criminal defense attorneys. Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005). The doctrine of issue preclusion can be used under appropriate circumstances to prevent a criminal defendant from relitigating issues that have been decided against him or her in a motion under section (c) in a subsequent malpractice suit. Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005). Failure to seek or obtain postconviction relief is not a bar to bringing a malpractice suit. Smith v. Truman, 115 P.3d 1279 (Colo. 2005). When a postconviction claim is properly presented for evaluation on the merits, but is premised on trial error that was not preserved, the court must review the claim for plain error, employing the prejudice test articulated in Wilson v. People, 743 P.2d 415 (Colo. 1987). People v. Versteeg, 165 P.3d 760 (Colo. App. 2006). B. When Review Available. Previously, this rule was entitled "Post Conviction Remedy for Prisoner in Custody". Hudspeth v. People, 151 Colo. 5, 375 P.2d 518 (1962), cert. denied, 375 U.S. 838, 84 S. Ct. 82, 11 L. Ed. 2d 66 (1963). And previously limited to prisoner in custody. This rule was once expressly limited to where a prisoner was attacking a sentence under which he was "then" in custody. Hackett v. People, 158 Colo. 304, 406 P.2d 331 (1965). Such as person to whom probation granted. A person to whom probation has been granted is considered to be in "custody under sentence" and may raise a question as to whether his plea was voluntary. People v. Burger, 180 Colo. 415, 505 P.2d 1308 (1973). Presently, court cannot deny motion for sole reason petitioner not in custody. At the present time, on a sufficient section (c) motion, a trial court would not be justified in summarily denying the motion for the sole reason that a petitioner is not in custody under sentence pursuant to a conviction which he seeks to vacate. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970). And this rule now applies to one who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970). A defendant who enters a guilty plea is entitled to file a Crim. P. 35(c) motion based on newly discovered evidence, and the rule does not limit postconviction review to those who have been convicted after trial or after entering an Alford plea. People v. Mason, 997 P.2d 1245 (Colo. App. 1999), aff'd on other grounds, 25 P.3d 764 (Colo. 2001). Postconviction relief is presently available where constitutional rights have been violated during trial. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Where defendant contended that the trial court imposed its sentence in an illegal manner, and not that it was an illegal sentence, defendant was required to file his motion within 120 days of the imposition of sentence. People v. Swainson, 674 P.2d 984 (Colo. App. 1983). Motion to dismiss may be treated as one filed pursuant to this rule. Where a motion to dismiss is filed after the defendant has pleaded guilty to and is sentenced for the charge involved, the trial court may elect to treat the motion as one filed pursuant to this rule. Wixson v. People, 175 Colo. 348, 487 P.2d 809 (1971). And review provided subsequent to appeal. The very purpose of a section (c) motion is to provide a postconviction remedy subsequent to an appeal to review constitutional errors made at trial. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970). Or where time for appeal has passed. This rule provides for postconviction remedies to attack an unconstitutionally conducted trial although the time for appeal has passed. Baca v. Gobin, 165 Colo. 593, 441 P.2d 6 (1968). And in spite of fact appeal was dismissed for failure to file the requisite motion for new trial, and that the alleged error could have been raised had such an appeal been properly brought, nevertheless, where the error asserted would be a violation of a constitutionally protected right, it may be raised in a section (c) motion. Sackett v. People, 176 Colo. 18, 488 P.2d 885 (1971). Motion based upon change in law may be filed before conviction becomes "final". Motions pursuant to section (c) and § 18-1-410(1)(f) may be filed at any time before the conviction becomes "final", which does not take place until the date when a petition for rehearing, timely filed, has been denied. Litsey v. District Court, 193 Colo. 341, 565 P.2d 1343 (1977) (decided prior to 1979 amendment). Where an appellant files a motion for a postconviction review of his sentence based on a significant change in the law before his conviction becomes "final", the court has jurisdiction to entertain his motion for relief. People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974). Relief from a validly imposed sentence because of amendatory legislation is only available if requested before a conviction becomes final. People v. Johnson, 638 P.2d 61 (Colo. 1981). Authority to modify sentence after conviction final. After a conviction has become final, relief from a validly imposed sentence cannot be obtained through the judiciary but must instead be sought through the executive department by way of commutation. People v. Akins, 662 P.2d 486 (Colo. 1983); People v. Piotrowski, 855 P.2d 1 (Colo. App. 1993). The limitations of § 16-5-402 are applicable to a proportionality review of a sentence imposed pursuant to the habitual criminal statutes. People v. Talley, 934 P.2d 859 (Colo. App. 1996). Because § 16-5-402 (1.5) is discretionary and because defendant's motion was premised on recent authority of constitutional magnitude, appellate court addressed the motion despite its untimeliness. People v. Gardner, 55 P.3d 231 (Colo. App. 2002). Defendant need not affirmatively assert that relief sought has not been previously denied, although an appeal duplicating an appeal previously denied may be dismissed. People v. Robinson, 833 P.2d 832 (Colo. App. 1992). Issue raised on appeal may be reviewed when Crim. P. 35(b) motion was inadvertently excluded from remainder of record transmitted to court and exclusion was not appellant's fault. People v. Olivas, 911 P.2d 675 (Colo. App. 1995). Review is appropriate when issues concern the sentencing proceeding and not the propriety of sentence itself. People v. Olivas, 911 P.2d 675 (Colo. App. 1995). Claims related to the department of corrections' sex offender classification are not reviewable under Crim. P. 35(c)(2). The proper claim is suit against the department of corrections. People v. McMurrey, 39 P.3d 1221 (Colo. App. 2001). Ripeness of claim for review. Subsections (c)(2) and (3) require an allegation that the applicant has a present right to be released because the sentence was imposed in violation of the constitution or laws of the United States or of Colorado and the sentence imposed was not in accordance with the sentence authorized by law. People v. Shackelford, 729 P.2d 1016 (Colo. App. 1986). Convict, who alleged that the department of corrections was incorrectly computing good-time credits for purposes of parole eligibility but who did not assert any defect in the sentence imposed upon him, and who presented his claim prior to the time when, even by his own calculations, he would be eligible for parole, did not present a dispute that was ripe for adjudication and did not state a cognizable claim. People v. Shackelford, 729 P.2d 1016 (Colo. App. 1986). State waived time bar to Crim. P. 35(c) motion by not raising it in trial court. People v. St. John, 934 P.2d 865 (Colo. App. 1996). When defendant entitled to review even though sentence served. When a defendant has completed service of a sentence and belatedly seeks postconviction relief, he may be charged with the burden of showing a present need for such relief. A sufficient showing is made when the defendant establishes that he is facing prosecution or has been convicted and the challenged conviction or sentence may be, or has been, a factor in sentencing for the current offense. People v. Montoya, 667 P.2d 1377 (Colo. 1983). A claim under this rule is not barred by a failure to challenge the conviction earlier as long as a postconviction motion states a claim cognizable under this rule, such as where the motion asserts facts which, if true, would invalidate a previously entered guilty plea, and the claim has not been fully and finally resolved in a prior judicial proceeding, the defendant is entitled to judicial review of the asserted error. People v. Montoya, 667 P.2d 1377 (Colo. 1983). A person seeking postconviction relief must allege with particularity in his motion that present need exists for relief sought and the present need must continue to exist until the time of the hearing on motion and, if a new present need arises prior to a hearing on motion for postconviction relief, defendant may amend his original pleading to reflect the change. Moland v. People, 757 P.2d 137 (Colo. 1988). Appellate court cannot review allegations not raised in a motion or hearing under section (c). People v. Goldman, 923 P.2d 374 (Colo. App. 1996). Constitutional error alleged need no longer be of sort not subject to appellate review. There is no longer any adherence to the rule that the constitutional error alleged must be of a sort not effectively subject to review on appeal from a conviction. People v. Bradley, 169 Colo. 262, 455 P.2d 199 (1969); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969). The fact that defendant did not raise a constitutional claim on direct appeal does not preclude the defendant from raising the claim in a motion under section (c) or from seeking appellate review of the trial court's denial of such a motion. The defendant is entitled to review of a motion under this rule so long as the motion states a claim cognizable under this rule and the claim has not been fully and finally resolved in a prior judicial proceeding. People v. Corichi, 18 P.3d 807 (Colo. App. 2000). Defendant who has voluntarily and knowingly waived right to contest validity of prior convictions cannot apply for postconviction relief under section (c). People v. Gurule, 748 P.2d 1329 (Colo. App. 1987). But this rule is not a substitute for appeal or writ of error. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). A motion under this rule is not a substitute for a writ of error. People v. Crawford, 183 Colo. 166, 515 P.2d 631 (1973). And constitutional error previously disposed of on appeal cannot be raised again. An error consisting of a violation of constitutional rights of a defendant may be raised in a section (c) proceeding so long as it was not previously raised and disposed of on appeal. People v. Bradley, 169 Colo. 262, 455 P.2d 199 (1969); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969). Where various matters raised in a motion under this rule have been considered on appeal and no constitutional issues are raised, the motion should be denied without hearing, as provided in this rule. McKenna v. People, 160 Colo. 369, 417 P.2d 505 (1966). Where a question is reviewed in depth in connection with the defendant's appeal, the matter is not subject to further review under section (c). Moore v. People, 174 Colo. 570, 485 P.2d 114 (1971). Once an issue has been reviewed on appeal it cannot be raised again by a petition to vacate judgment and sentence. Gallegos v. People, 175 Colo. 553, 488 P.2d 887 (1971). Unless otherwise required in the interests of justice, any grounds for postconviction relief which have been fully and finally litigated on a writ of error should not be relitigated. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972). This rule is a vehicle for correcting errors of constitutional magnitude which were not previously raised and ruled upon. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). An issue can be raised by a section (c) motion only when the alleged error involves a constitutional right and was not previously the subject of review on a writ of error. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973). Equitable principles permit a motion for postconviction relief to be denied without a hearing when the ground for postconviction relief relied upon has been fully and finally litigated in the proceedings leading to judgment of conviction, including an earlier appeal, and the interests of justice do not otherwise require another hearing. People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976). Once a claim has been raised and disposed of by the supreme court in an earlier appeal, it cannot be raised again in a later section (c) motion. People v. Johnson, 638 P.2d 61 (Colo. 1981); People v. Davis, 759 P.2d 742 (Colo. App. 1988). As there must be some finality in reviewing process. Although section (c) is primarily intended to provide procedure which will permit judicial review of alleged constitutional infirmities in criminal proceedings, it is couched in language which recognizes that there must be some finality in the reviewing process. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Rule not intended to establish perpetual review. This rule was not intended to establish a procedure which would allow continuing review of issues previously decided against the defendant. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Generally, this rule is not intended to provide a repetitive review of alleged errors. Buckles v. People, 162 Colo. 51, 424 P.2d 774 (1967). Postconviction proceedings are provided as a method of preventing injustices from occurring after a defendant has been convicted and sentenced, but not for the purpose of providing a perpetual right of review to every defendant in every case. People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974). Second appellate review of the propriety of a sentence is prohibited. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980); People v. Jenkins, 687 P.2d 455 (Colo. 1984). A defendant is prohibited from using a proceeding under this rule to relitigate issues fully and finally resolved in an earlier appeal. People v. Johnson, 638 P.2d 61 (Colo. 1981); DePineda v. Price, 915 P.2d 1278 (Colo. 1996). A defendant is precluded from raising an issue under this rule if its review would be nothing more than a second appeal. DePineda v. Price, 915 P.2d 1278 (Colo. 1996). But if a significant change in the interpretation of the law, of constitutional magnitude, is determined after the defendant's direct appeal is affirmed, and if the change is binding precedent, then it is proper for the court of appeals to exercise its discretion to review the defendant's claims raised under this rule in a subsequent appeal. People v. Close, 22 P.3d 933 (Colo. App. 2000), rev'd on other grounds, 48 P.3d 528 (Colo. 2002). Rights of accused balanced against right to have final court determination. It is necessary to balance the rights of the accused to review a trial with postconviction proceedings against the right of society to have finality in court determinations. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). Thus, American Bar Association Standards for Criminal Justice are to be followed. In balancing the rights of the accused in postconviction proceedings against the recurring problems which face the courts and society, the supreme court of Colorado has elected to follow the American Bar Association Standards for Criminal Justice relating to delayed applications for relief. People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974). When appeal time expires, petitioner must show entitlement to relief. When the time for appeal has expired, there must be a showing by the petitioner that he would be entitled to relief under section (c). Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970). As must defendant who has completed challenged sentence. Where the defendant seeking postconviction relief has completed the sentences which were imposed on his challenged convictions, he has the burden of establishing a present need for relief under this rule. People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974). Where the defendant has long since served his sentence, time has dimmed memories, and court records are misplaced or unavailable, the defendant has the burden of demonstrating a present need for section (c) relief. People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). A defendant who has fully discharged the sentence imposed against him and any parole obligation associated with the sentence, but who has made no further showing of the present need for relief, is not entitled to relief under section (c) of this rule. People v. Graham, 793 P.2d 600 (Colo. App. 1989). Motions under section (c) are subject to § 16-5-402(1), which prohibits a person convicted under a criminal statute from collaterally attacking the validity of the conviction unless the attack is commenced within three years of the conviction. People v. Green, 36 P.3d 125 (Colo. App. 2001); People v. Salinas, 55 P.3d 268 (Colo. App. 2002); People v. Collier, 151 P.3d 668 (Colo. App. 2006). However, an exception to the time limit in § 16-5-402(1), exists if a defendant demonstrates that the failure to seek timely relief was the result of justifiable excuse or excusable neglect. People v. Green, 36 P.3d 125 (Colo. App. 2001); People v. Salinas, 55 P.3d 268 (Colo. App. 2002). But the allegation that there was "justifiable excuse or excusable neglect" without specificity is insufficient and time barred. People v. Salinas, 55 P.3d 268 (Colo. App. 2002). Because there is no requirement that appellate counsel advise a defendant of time limitations for seeking postconviction relief, the absence of such advice is not a justifiable excuse for defendant's neglect. People v. Alexander, 129 P.3d 1051 (Colo. App. 2005). Postconviction motions that challenge the manner in which a plea is taken, such as whether the person was properly advised about the plea, are not challenges to the legality of the sentence and are properly brought pursuant to section (c), not section (a). People v. Green, 36 P.3d 125 (Colo. App. 2001); People v. Salinas, 55 P.3d 268 (Colo. App. 2002). When a deferred judgment and sentence agreement remains unrevoked, review under this rule is not available as it establishes postconviction remedies, and no conviction has entered. People ex rel. K.W.S., 192 P.3d 579 (Colo. App. 2008). Defendant who pleads guilty may not bring an as-applied equal protection postconviction challenge. People v. Ford, 232 P.3d 260 (Colo. App. 2009). C. Grounds Justifying Relief. 1. In General. Previously, this rule specifically limited the trial court's power to grant relief to situations where: (1) The sentence was imposed in violation of the constitution or laws of Colorado or of the United States; or (2) the court imposing the sentence was without jurisdiction to do so; or (3) the sentence was in excess of the maximum sentence authorized by law; or (4) the statute for the violation of which the sentence was imposed was unconstitutional or was repealed before the prisoner contravened its provisions. Saiz v. People, 156 Colo. 43, 396 P.2d 963 (1964); Hammons v. People, 156 Colo. 484, 400 P.2d 199 (1965). 2. Change of Law. Subsection (c)(1) appropriate where change intervenes before imposition of sentence. A defendant is given the right to make application for postconviction review when there has been a significant change in the law, applied to defendant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard. Hence, subsection (c)(1) is especially appropriate where a change in the law intervenes before conviction is had and sentence is imposed. People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974). Where amendatory legislation mitigating the penalty for the offense became effective prior to imposition of the sentence, the defendant is entitled as a matter of law to be sentenced thereunder, although probation is imposed before the legislation and revocation with sentencing afterwards. People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977). Standing to challenge conviction based upon change of law. Section (c) is proper motion for obtaining postconviction relief in circumstance in which one of the statutes under which the defendant was charged was later held unconstitutional, and therefore defendant had standing to bring such a motion. People v. Crespin, 682 P.2d 58 (Colo. App. 1984), rev'd on other grounds, 721 P.2d 688 (Colo. 1986). But where court overrules prior fourth amendment holding, suppression issues become moot upon entry of a guilty verdict and relief properly denied. People v. Waits, 695 P.2d 1176 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 724 P.2d 1329 (Colo. 1986). Retroactive application of amendments to § 17-2-103(12), providing that a parole officer shall request that parole revocation proceedings be deferred pending a disposition of a criminal charge, denied under this rule because subsection (c)(1) provides a remedy to an offender whose conviction or sentence is affected by a change in the law during the pendency of a direct appeal of such conviction or sentence, but not to an offender claiming the benefit of changes in the law that occur during the pendency of other postconviction proceedings. People v. White, 804 P.2d 247 (Colo. App. 1990). 3. Constitutionally Infirm Judgment. Section (c) provides procedural mechanism to attack a conviction which is constitutionally infirm. People v. Ivery, 44 Colo. App. 511, 615 P.2d 80 (1980). Sufficiency of the evidence is a constitutional issue, cognizable under subsection (c)(2). People v. Nunez, 673 P.2d 53 (Colo. App. 1983). Postconviction questions pertaining to constitutionality of judgment of conviction are solely within rule. Shearer v. Patterson, 159 Colo. 319, 411 P.2d 247 (1966). A claim that the trial court aggravated a sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is cognizable under section (c) and not section (a). People v. Collier, 151 P.3d 668 (Colo. App. 2006). Contention that sentence violates double jeopardy prohibition of the fifth amendment of the U.S. constitution is cognizable under section (c). People v. Collier, 151 P.3d 668 (Colo. App. 2006). Contention that sentencing scheme set forth in Colorado Sex Offender Lifetime Supervision Act violates equal protection is cognizable under section (c) of this rule. People v. Collier, 151 P.3d 668 (Colo. App. 2006). Contention that Colorado Sex Offender Lifetime Supervision Act violates due process because it does not provide for a continuing opportunity to be heard and does not give offenders a meaningful chance to demonstrate their rehabilitation is cognizable under section (c) of this rule. People v. Collier, 151 P.3d 668 (Colo. App. 2006). Contention that trial court used an unreliable test in sentencing defendant in violation of due process is cognizable under section (c) of this rule. People v. Collier, 151 P.3d 668 (Colo. App. 2006). If motion specifies violation of constitutional rights, hearing required. If a defendant's motion to vacate, or any attachments thereto, specify matters which are deemed to have violated his constitutional rights, then it would be incumbent upon the trial court to treat this motion in the nature of a section (c) motion and conduct a hearing to determine if there was a violation of any of the constitutional rights of the defendant. DeBaca v. People, 170 Colo. 415, 462 P.2d 496 (1969). Submission of the constitutionally infirm crime of extreme indifference murder under a general verdict to jury was not harmless error beyond a reasonable doubt. Crespin v. People, 721 P.2d 688 (Colo. 1986). 4. Unlawful Revocation of Sentence. Rule provides remedy for revocation of deferred sentence. A defendant may either appeal an order revoking a deferred sentence, pursuant to C.A.R. 1, or file a motion for postconviction review, pursuant to section (c) of this rule. People v. Boykin, 631 P.2d 1149 (Colo. App. 1981). As an order revoking deferred sentence is equivalent of revocation of conditional release for purposes of subsection (c)(2)(VII). People v. Boykin, 631 P.2d 1149 (Colo. App. 1981). Offender is not entitled to relief under section (c) of this rule when record demonstrates that offender was given statutorily required administrative review prior to termination from a community corrections program by the trial court in its role as the referring agency. People v. Rogers, 9 P.3d 371 (Colo. 2000). 5. Invalid Guilty Plea. State courts empowered to determine validity of pleas. Section (c) confers jurisdiction upon the state courts to hear and determine allegations which go to the validity of a petitioner's plea of guilty. Patterson v. Hampton, 355 F.2d 470 (10th Cir. 1966). As such allegations raise no question justiciable in "habeas corpus". Allegations of a petition which go to the validity of petitioner's plea of guilty are properly brought under this rule and raises no question properly justiciable in "habeas corpus". Stewart v. Tinsley, 157 Colo. 441, 403 P.2d 220 (1965); Martinez v. Tinsley, 158 Colo. 236, 405 P.2d 943 (1965). Defendant entitled to opportunity to prove allegations of coercion. No matter how improbable allegations of coercion may be, so long as they are not completely incredible, a defendant is entitled to the opportunity of trying to prove them at a hearing. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). And entitled to withdraw plea made under influence of drugs. If the defendant can show that he was under the influence of tranquilizing drugs at the time he changed his plea to guilty, to the extent that the guilty plea was not a free and voluntary act, he would be entitled to withdraw that plea and go to trial on a plea of not guilty, particularly where he alleges that he has a valid defense to the charges against him. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). Failure of court to advise or make inquiry precludes treating plea as voluntary. Failure of the trial court to advise or to make a proper inquiry precludes treating the defendant's plea of guilty as a voluntary and intelligent waiver of his constitutional rights, so defendant may withdraw his plea of guilty and be permitted to plea anew. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972). And elements of crime charged must be explained in understandable terms. A guilty plea cannot stand as voluntarily and knowingly entered unless the defendant understands the nature of the crime charged, and this requirement is not met unless the critical elements of the crime charged are explained in terms which are understandable to the defendant. People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979). But a defendant may plead guilty to a crime which does not exist and for which he could not be convicted at trial, and because the defendant receives a substantial benefit by pleading guilty to the lesser charges, postconviction relief will be denied. People v. Waits, 695 P.2d 1176 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 724 P.2d 1329 (Colo. 1986). Defendant need not be advised on right to remain silent in competency evaluation for a postconviction motion under section (c) if the evaluation is not being used to establish guilt. No self-incrimination issue exists, and procedural safeguards of § 16-8-117 do not apply because defendant already confessed, pleaded guilty, and was sentenced. People v. Karpierz, 165 P.3d 753 (Colo. App. 2006). The defendant must receive advisement of mandatory parole requirement when entering into a plea agreement so that the defendant has the requisite knowledge of the consequences of the plea agreement. Without sufficient advisement, the plea agreement can be withdrawn. People v. Seaney, 36 P.3d 81 (Colo. App. 2000). Hearing granted where no showing defendant aware of difference between felony and misdemeanor. Where the record fails to show defendant was aware of difference between felony and misdemeanor offenses when pleading guilty, he should be granted a hearing on his petition for postconviction relief. People v. Rivera, 185 Colo. 337, 524 P.2d 1082 (1974). Existence of prejudice resulting from ineffective assistance of counsel is not determined by underlying "truth" of a guilty plea, but rather by whether there is a reasonable probability that defendant would not have pleaded guilty but for counsel's failure to make him aware of the consequences of such plea. People v. Garcia, 799 P.2d 413 (Colo. App. 1990). Defendant who pleaded guilty to first degree sexual assault was resentenced to reflect terms of plea bargain as interpreted by court. Defendant's plea was based on court's interpretation of plea bargain that, if qualified under "good time law", he would serve no more than one-half of sentence agreed upon, but after defendant entered his plea, parole board determined that parole was discretionary, not mandatory, for sex offenders and that defendant may be required to serve the full sentence on his conviction. People v. Wilbur, 873 P.2d 1 (Colo. App. 1993). Trial court did not cause defendant's plea to be involuntarily made, where neither the People nor the trial court represented that defendant would be released on parole at any particular time, the court specifically stated to defendant that it would not be bound by any representations made to defendant concerning the penalty to be imposed or the granting or denial of probation, and neither the trial court nor the prosecutor referred to the parole board's early release policy. People v. Lustgarden, 914 P.2d 488 (Colo. App. 1995). Trial court's failure to advise defendant of the possibility of being sentenced pursuant to the Sex Offenders Act, former §§ 16-13-201 to 16-13-216 , was not grounds to set aside defendant's guilty plea entered a decade earlier; the failure to so advise was harmless since the defendant was not originally sentenced under the Act. People v. Lustgarden, 914 P.2d 488 (Colo. App. 1995). Defendant's postconviction motion based on the voluntariness of his guilty plea as it related to the quality of his counsel was properly denied as successive under subsection (c)(3)(VII) of this rule, where lengthy evidentiary hearing was held on defendant's Crim. P. 32(d) motion claiming that his plea was not knowing, voluntary, and intelligent due to ineffective assistance of counsel. People v. Vondra, 240 P.3d 493 (Colo. App. 2010). 6. Deprivation of Appellate Rights. Constitutional violation where deprivation of appellate rights by fraud or deception. A deprivation of constitutional rights has been held to exist where factors such as fraud or deception imposed upon a convicted person by his attorney deprive him of his appellate rights. Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969). Otherwise, meritorious grounds for appellate review must be shown. Where a motion for postconviction relief is based on an alleged deprivation of the right to appeal, meritorious grounds for appellate review must be shown. Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969). Indigent defendant is entitled to obtain a free transcript when necessary to exercise the right of appeal. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). So long as furnishing of free transcript not "vain and useless" gesture. To warrant the furnishing of a free transcript, the petitioner must make some showing that the furnishing of such would not be just a "vain and useless" gesture, but that he is entitled to relief under this rule. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970); Romero v. District Court, 178 Colo. 200, 496 P.2d 1049 (1972). Inasmuch as such would be the infliction of a needless expense. As to the right to have a free transcript on appeal, where petitioner does not come within the requirements of section (c) and no showing has been made why a very expensive transcript will be of any use to him, then the infliction of the needless expense to prepare such upon a small local unit of government under these circumstances would be an injustice. Peirce v. People, 158 Colo. 81, 404 P.2d 843 (1965). Allegations of ineffective assistance of counsel in appellate proceedings may be considered by the trial court in connection with motion for postconviction relief. People v. Williams, 736 P.2d 1229 (Colo. App. 1986). Attorney's performance found to be patently deficient in proceeding under this rule alleging ineffective assistance of counsel where such attorney failed to file a petition for writ of certiorari in a timely fashion after receiving three extensions of time from supreme court. People v. Valdez, 789 P.2d 406 (Colo. 1990). Motion for postconviction relief under this rule denied where defendant failed to establish that he had suffered prejudice due to patently deficient performance of attorney in handling criminal appeal. People v. Valdez, 789 P.2d 406 (Colo. 1990). A motion or petition for habeas corpus is a collateral attack that may be dismissed upon the defendant's death, since doing so does not deprive the defendant of the right to appeal the conviction. People v. Valdez, 911 P.2d 703 (Colo. App. 1996). 7. Other Grounds. Issue involving jurisdiction of court to impose certain sentence is subject to review under section (c). Johnson v. People, 174 Colo. 75, 482 P.2d 105 (1971). A defendant may not plead guilty to a crime after the general assembly has expressly repealed the statute defining that crime. Defendant's plea to first degree assault pursuant to § 18-3-202(1)(d), after such section was repealed, was illegal and, because it was material to his plea agreement, his plea agreement was vacated. People v. Wetter, 985 P.2d 79 (Colo. App. 1999). Due process failure where jury would not have convicted with later discovered evidence. If with later discovered evidence the jury would not have convicted the defendant, it can be said that the conviction can be laid at the door of inadequate preparation on the part of both sides, and this has the magnitude of a failure to due process, calling for a new trial. People v. Armstead, 179 Colo. 387, 501 P.2d 472 (1972). Where prior conviction is decreed a nullity by final judgment of court of appeals. The defendant cannot "reaffirm" the validity of a prior conviction at an habitual offender hearing when the court of appeals has decreed by final judgment that the prior conviction is a nullity. People v. Dugger, 673 P.2d 351 (Colo. 1983). Invited error doctrine not applicable as basis for denying postconviction relief. Defendant should not be estopped from challenging conviction on grounds that he invited the error by successfully objecting to submission of a special verdict form where court found that although the use of a general verdict form prevented a means of determining whether error raised in postconviction motion was harmless, the use of a general verdict form did not induce error by the trial court. People v. Crespin, 682 P.2d 58 (Colo. App. 1984), rev'd on other grounds, 721 P.2d 688 (Colo. 1986). Ineffective assistance of counsel. Defendant has burden to show inadequate representation, and a conviction will not be set aside unless, based on record as a whole, there was a denial of fundamental fairness. People v. Gies, 738 P.2d 398 (Colo. 1987); People v. Karpierz, 165 P.3d 753 (Colo. App. 2006). There is no need to inquire into trial errors or prejudice if trial counsel is found to be incompetent as a matter of law. In such case as trial counsel is found to be incompetent as a matter of law, defendant is entitled to new trial for this reason alone. People v. Kenny, 30 P.3d 734 (Colo. App. 2000). Trial counsel conflict of interest. If the trial court determines that a conflict of interest existed, such conflict adversely affected counsel's conduct, and that defendant did not voluntarily, knowingly, and intelligently waive the right to conflict-free representation, judgment of conviction must be vacated and a new trial should be conducted. People v. Kenny, 30 P.3d 734 (Colo. App. 2000). Strickland ineffective assistance standard requires that the court evaluate the evidence from the perspective of defense counsel as of the time of the representation in question and to indulge a strong presumption that defense counsel's efforts constituted effective assistance. People v. Naranjo, 840 P.2d 319 (Colo. 1992). If the court determines defense counsel's performance was not constitutionally deficient, it need not consider the prejudice prong of the ineffective assistance test. People v. Sparks, 914 P.2d 544 (Colo. App. 1996). Strickland test, while based on the constitutional right to counsel, is applicable to the determination of whether a defendant has received effective assistance of counsel in a postconviction proceeding. People v. Hickey, 914 P.2d 377 (Colo. App. 1995). In order to obtain relief based on a claim of ineffective assistance of counsel, a defendant must affirmatively prove both that his counsel's performance fell below the standard of professional reasonableness and that such performance prejudiced him, i.e., that there is reasonable probability that, but for such deficient performance, the outcome at trial would have been different. People v. Palmer, 888 P.2d 348 (Colo. App. 1994). Ineffective assistance of counsel may arise when an attorney's representation is intrinsically improper because of an actual conflict of interest. However, to make a showing of actual conflict of interest, the defendant must demonstrate a basis for the underlying ineffective assistance of counsel challenges. No basis was found where claim of ineffective assistance of counsel was based on bare allegations of failure to file an appeal with no showing of the existence of grounds for an appeal. People v. Rhorer, 946 P.2d 503 (Colo. App. 1997), rev'd on other grounds, 967 P.2d 147 (Colo. 1998). To succeed on a motion for new trial based on newly discovered evidence, the defendant must show that the evidence was discovered after the trial; that defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evidence is material to the issues involved and not merely cumulative or impeaching; and lastly, that the newly discovered evidence is of such character as probably to bring about an acquittal verdict if presented at another trial. People v. Muniz, 928 P.2d 1352 (Colo. App. 1996); People v. Tomey, 969 P.2d 785 (Colo. App. 1998); People v. Mason, 997 P.2d 1245 (Colo. App. 1999), aff'd on other grounds, 25 P.3d 764 (Colo. 2001). Question in evaluating probability that new evidence would bring about an acquittal is not whether the court, in its experience, would consider a particular witness credible, but rather whether a reasonable jury would probably conclude that there existed a reasonable doubt of guilt based on all evidence, including the new evidence, as developed in the course of trial. People v. Estep, 799 P.2d 405 (Colo. 1990). Defendant entitled to a new trial upon the withdrawal of his guilty plea based upon newly discovered evidence. The defendant must present evidence from which the trial court may reasonably conclude that: (1) The newly discovered evidence was discovered after the entry of the plea, and in the exercise of reasonable diligence by the defendant and his or her counsel, could not have been discovered earlier; (2) the charges that the People filed against the defendant, or the charges to which the defendant pleaded guilty were actually false or unfounded; and (3) the newly discovered evidence would probably bring about a verdict of acquittal in a trial. People v. Schneider, 25 P.3d 755 (Colo. 2001); Mason v. People, 25 P.3d 764 (Colo. 2001). An Alford plea and a guilty plea are the same for purposes of analysis under Schneider. People v. Schneider, 25 P.3d 755 (Colo. 2001). A trial court may consider corroborating evidence in assessing a recanting witness's credibility. People v. Schneider, 25 P.3d 755 (Colo. 2001). Trial court record demonstrated defendant was aware that a crime of violence charge would increase his potential sentence and supported trial court's denial of motion to vacate upon finding that defendant's plea was knowingly and voluntarily entered. People v. Palmer, 888 P.2d 348 (Colo. App. 1994). It is extremely unlikely that a reasonable jury would acquit the defendant of drug charges in a new trial at which a witness now states, six years after the original trial, that she placed the drugs in the defendant's wallet. The trial court found it "rather incredible" that the witness would not mention that she had put the drugs in his wallet during the first trial and that the witness did not know that the defendant was in prison until six years later. The witness' testimony was further weakened by the fact that she was no longer subject to prosecution for her conduct and the fact that her testimony conflicted with her affidavit with respect to where she obtained the drugs. People v. Muniz, 928 P.2d 1352 (Colo. App. 1996). A defendant who enters a guilty plea is entitled to file a motion for post-conviction relief based on newly discovered evidence. People v. Tomey, 969 P.2d 785 (Colo. App. 1998). District court exceeded its statutory jurisdiction by ordering that defendant not have custody of her children as a condition of probation, since juvenile courts have exclusive jurisdiction to determine the legal custody of any child who is dependent and neglected under § 19-1-104 . People v. Forsythe, 43 P.3d 652 (Colo. App. 2001). D. Grounds Not Justifying Relief. 1. In General. Mere error, unless of constitutional dimension, is no grounds for postconviction relief. People v. Crawford, 183 Colo. 166, 515 P.2d 631 (1973). Such as failure to follow rule's formal requirements. For collateral relief such as habeas corpus to be available, more than a failure to follow the formal requirements of a rule of criminal procedure must be shown. Martinez v. Ricketts, 498 F. Supp. 893 (D. Colo. 1980). Trial court's failure to readvise defendant of elements of crime at providency hearing is not fatal to the conviction where record shows that defendant's plea was knowingly and understandingly made. People v. Reyes, 713 P.2d 1331 (Colo. App. 1985). Trial court's alleged error in refusing to permit defendant's wife to testify as to his nonviolent character and prior sexual conduct and allegation that prosecutor's remarks during cross-examination and closing argument were so prejudicial as to constitute reversible error were not proper grounds for postconviction relief. People v. Williams, 736 P.2d 1229 (Colo. App. 1986). Alleged defects in grand jury proceedings do not constitute grounds for relief from conviction, because once a defendant has been found guilty beyond a reasonable doubt, the issue of probable cause found at a grand jury proceeding becomes moot. People v. Tyler, 802 P.2d 1153 (Colo. App. 1990). Trial court's failure to advise defendant of the mandatory parole term did not constitute reversible error. Because the length of the defendant's sentence was less than the maximum that he was advised he could receive, the trial court properly determined that defendant had entered a valid guilty plea. Consequently, it committed no error in denying defendant's motion under this rule. People v. Tyus, 776 P.2d 1143 (Colo. App. 1989). Trial court's failure to advise defendant of mandatory parole term at the time he pleaded guilty to probation violation was not error because court had previously advised defendant when he pleaded guilty to the charge. People v. Wright, 53 P.3d 730 (Colo. App. 2002). Where mittimus does not reference a mandatory period of parole, remand is required for correction of the mittimus rather than granting defendant's Crim. P. 35(c) motion. People v. Barth, 981 P.2d 1102 (Colo. App. 1999). Allowing witness for defendant to appear in jail clothing is not reversible error where defendant cannot show he was prejudiced thereby. People v. Walters, 796 P.2d 13 (Colo. App. 1990); People v. Martinez, 32 P.3d 520 (Colo. App. 2001). Trial court's instruction that the jury could consider defendant's voluntary absence from the trial as evidence of guilt was not error. The court had made reasonable inquiry as to the defendant's whereabouts before continuing the trial. People v. Tafoya, 833 P.2d 841 (Colo. App. 1992). Where the only issue raised in a motion under this rule concerns the construction of statutes, failure of the trial court to make findings of fact and conclusions of law is harmless and does not require reversal. People v. Young, 908 P.2d 1147 (Colo. App. 1995). Defense counsel's failure to inform defendant of mandatory consecutive sentences did not result in ineffective assistance of counsel. The record supported the trial court's conclusion that defendant would not have accepted a plea bargain sentence in excess of 20 years, therefore defense counsel's failure to inform defendant of the mandatory consecutive sentence provision did not result in prejudice. People v. Williams, 908 P.2d 1157 (Colo. App. 1995). Defendant cannot claim ineffective assistance of counsel for failing to perfect appeal while defendant was a fugitive. Counsel's performance could not have prejudiced defendant by forcing forfeiture of an appeal because, by fleeing from justice while his appeal was pending, defendant himself forfeited his right to appellate review. People v. Brown, 250 P.3d 679 (Colo. App. 2010). Application of mandatory parole period did not violate equal protection where person is sentenced differently than others in same felony "class". Defendant is only "similarly situated" with defendants who commit the same or similar acts. People v. Friesen, 45 P.3d 784 (Colo. App. 2001); People v. Walker, 75 P.3d 722 (Colo. App. 2002). 2. Procedural Errors. Review on grounds of duplicity in charge is proper only by appeal to the conviction and not by means of this rule. Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964). And mere surplusage in charge does not require court to hold a full-blown hearing into a motion to vacate, where it could be clearly seen from the motion itself that the particular matter was without merit, such being a matter of form not affecting the "real merits" of the offense charged. Carter v. People, 161 Colo. 10, 419 P.2d 654 (1966). Defendant cannot collaterally attack untrue record of arraignment and plea. Where the record as to arraignment and plea is not true, the defendant must reasonably call the defect to the court's attention by a motion for correction of error, but he cannot collaterally attack it. Madrid v. People, 148 Colo. 149, 365 P.2d 39 (1961). Hearing not required by delay where not oppressive or arbitrary. Where the record does not disclose any objection to a delay made by the defendant at the time of trial and the defendant's motion under this rule does not set forth any facts showing that the delay was in any manner oppressive or arbitrary, that he was in any way deprived of any defense, or that any witness was unavailable, then under such circumstances, the court is not required to hold an evidentiary hearing. Valdez v. People, 174 Colo. 268, 483 P.2d 1333 (1971). Attack on credibility of witnesses for the state is a matter not reviewable by motion under this rule, since it does not raise a constitutional question. Taylor v. People, 155 Colo. 15, 392 P.2d 294 (1964). Nor is admissibility of exhibit based on alleged lack of foundation. The issue as to the admissibility of an exhibit based on an alleged lack of foundation not based on any constitutional ground is not one which can form the basis for relief under section (c). Walters v. People, 166 Colo. 90, 441 P.2d 647 (1968). Tactical error regarding trial strategy insufficient basis for relief. Where counsel makes an informed decision regarding trial strategy and offers several theories of defense, only one of which is challenged as having been ineffectively presented at trial, this tactical error does not provide the necessary basis for postconviction relief. People v. Stroup, 624 P.2d 913 (Colo. App. 1980). As are, generally, errors in jury instructions. As a general rule, errors in jury instructions do not constitute fundamental error that would provide a basis for collateral attack. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). And failure to appoint counsel on appeal. The failure to appoint counsel to carry an appeal does not authorize, or even permit, the setting aside of a judgment and sentence under this rule. Rather, the proper remedy is another request that he be appointed counsel to examine the trial record. Cruz v. People, 157 Colo. 479, 405 P.2d 213 (1965), cert. denied, 383 U.S. 915, 86 S. Ct. 905, 15 L. Ed. 2d 669 (1966). 3. Plea Bargaining and Disparate Sentences. Allegation of plea bargaining, standing alone, is not sufficient upon which to base a charge of coercion of a guilty plea. Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967). Due process not denied where judge considers truthfulness of defendant's presentence statements. It is not a denial of due process for a judge, in connection with sentencing procedure, to consider the truthfulness of voluntary statements made by the defendant at a presentence hearing. People v. Quarles, 182 Colo. 321, 512 P.2d 1240 (1973). And relief cannot be given for disparity in sentences. A defendant is not entitled to relief under section (c) based on a lack of equal protection of the law due to the disparity of the sentences between himself and a codefendant. People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972). Nor where defendant alleges that prison conditions constitute cruel and unusual punishment. The defendant's allegations that conditions at a prison constitute cruel and unusual punishment, making his sentence more onerous than that contemplated by the sentencing judge, do not present a claim for relief under this rule. People v. Sundstrom, 638 P.2d 831 (Colo. App. 1981). Defendant need not be advised on right to remain silent in competency evaluation for a postconviction motion under section (c) if the evaluation is not being used to establish guilt. No self-incrimination issue exists, and procedural safeguards of § 16-8-117 do not apply because defendant already confessed, pleaded guilty, and was sentenced. People v. Karpierz, 165 P.3d 753 (Colo. App. 2006). 4. Failure to Take Appeal. Mere failure to take appeal cannot support collateral attack. The mere failure, or even neglect, to take an appeal, "standing alone", whether excusable or not, raises no constitutional question, and, hence, does not support a collateral attack. Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969); People v. Rhorer, 946 P.2d 503 (Colo. App. 1997), rev'd on other grounds, 967 P.2d 147 (Colo. 1998). Unless party precluded from appealing. Where a party has not availed himself of the normal appeal procedure, unless he has been effectively precluded from doing so, he cannot thereafter seize upon this remedy in order to seek relief from alleged grievances which are properly the subject of an appeal. Taylor v. People, 155 Colo. 15, 392 P.2d 294 (1964). Or where true prejudice to petitioner. Where a petitioner's time to sue out an appeal has long since passed and he has effectively and knowingly waived his right to file a motion for a new trial, he cannot, in the absence of any showing of true prejudice which could bring him under this rule, be heard to complain that his waiver had a legal effect he did not then contemplate. Peirce v. People, 158 Colo. 81, 404 P.2d 843 (1965). E. Motion and Hearing. 1. When Hearing Granted. If allegations set forth proper grounds for relief, court must grant prompt hearing. Patterson v. Hampton, 355 F.2d 470 (10th Cir. 1966). If a motion under section (c) sets forth facts constituting grounds for relief from a sentence, a prompt hearing by the trial court must be granted, unless the motions, files, and records satisfactorily show that the prisoner is not entitled to relief. Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965); Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965); Coleman v. People, 174 Colo. 94, 482 P.2d 378 (1971). When defense counsel's ineffective assistance deprives defendant of a hearing on the merits of his or her postconviction claim, the remedy is to provide such a hearing. Thus, vindication of this statutory right trumps society's interest in the finality of convictions. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007). Even when the record clearly demonstrates that postconviction counsel was ineffective in representing defendant through counsel's delay, proof of acquiescence could show defendant abandoned an ineffective assistance of counsel claim or waived the right to effective assistance of counsel. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007). Whether a waiver of effective assistance of counsel was voluntary is a question of fact for the trial court. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007). The allegation that defense counsel failed to inform defendant of his or her right to appeal plus the fact that the court did not advise the defendant of his or her right to appeal is sufficient to warrant an evidentiary hearing. People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004). Evidentiary hearing not required where only legal issues to be decided by judge. An evidentiary hearing is not required under this rule where the motion, files, and record present only issues of law, or where the motion itself fails to specify the facts supporting the constitutional claim. People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976); People v. Johnson, 195 Colo. 350, 578 P.2d 226 (1978). Hearing unnecessary, and motion dismissed, where record shows no entitlement to relief. A motion under this rule may be dismissed without a hearing in the case where the motion, the files, and the record show to the satisfaction of the court that the prisoner is not entitled to relief. Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969). This rule permits a trial judge to deny the motion without granting a hearing, but only in those cases where the motion, the files, and the record in the case clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief. People v. Hutton, 183 Colo. 388, 517 P.2d 392 (1973); People v. Breaman, 924 P.2d 1139 (Colo. App. 1996). Where the motion and the record of the case show, to the satisfaction of the court, that the prisoner is not entitled to relief, a hearing is not necessary. People v. Velarde, 200 Colo. 374, 616 P.2d 104 (1980). A motion under section (c) may be dismissed without a hearing if the motion, the files, and the record clearly establish that the defendant is not entitled to relief. People v. Hartkemeyer, 843 P.2d 92 (Colo. App. 1992); People v. Ruiz, 935 P.2d 68 (Colo. App. 1996); People v. Mayes, 981 P.2d 1106 (Colo. App. 1999); People v. Moriarity, 8 P.3d 566 (Colo. App. 2000); People v. Martinez, 36 P.3d 201 (Colo. App. 2001); People v. Salinas, 55 P.3d 268 (Colo. App. 2002); People v. Vieyra, 169 P.3d 205 (Colo. App. 2007). Trial court did not err in failing to grant defendant a hearing where the court referred only to information in the motion, record, and files in denying defendant's motion. People v. Fernandez, 53 P.3d 773 (Colo. App. 2002). Although the court may, after considering the motion and supporting documents, deny a motion pursuant to Crim. P. 35 without a hearing, the court may not grant the motion without a hearing. People v. Davis, 849 P.2d 857 (Colo. App. 1992), aff'd, 871 P.2d 769 (Colo. 1994). Court of appeals erred in vacating respondent's guilty plea based upon allegations contained in his or her section (c) motion. However, since the allegations, if true, may entitle respondent to relief, the district court must conduct an evidentiary hearing to ascertain the veracity of respondent's claims. People v. Simpson, 69 P.3d 79 (Colo. 2003). Before accepting a defendant's guilty plea, a trial court must adequately advise the defendant regarding a mandatory parole period. Appropriate remedy is to remand for a hearing to determine if defendant was aware of a mandatory parole term and, if not, whether he nevertheless would have pled guilty. People v. Calderon, 992 P.2d 1201 (Colo. App. 1999). 2. Sufficiency of Allegations. Bald allegation of constitutional error is sufficient for review when specific facts are not pleaded to support the claim. People v. Bruebaker, 189 Colo. 219, 539 P.2d 1277 (1975). Bare allegations of incompetence or coercion are not sufficient to entitle a defendant to an evidentiary hearing in section (c) proceeding. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967); Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971). Bare allegations of incompetency of counsel are not sufficient to entitle a defendant to an evidentiary hearing in a proceeding under section (c). Moore v. People, 174 Colo. 570, 485 P.2d 114 (1971); People v. Osorio, 170 P.3d 796 (Colo. App. 2007). Bare assertions of mental exhaustion on the part of the defendant because of a series of continuances resulting in less than a month's delay is not equivalent to mental incompetence. Bradley v. People, 175 Colo. 146, 485 P.2d 875 (1971). And evidentiary hearings will not be granted on vague conclusional charges. DeBaca v. District Court, 163 Colo. 516, 431 P.2d 763 (1967). As where motion alleges sentence is "illegal" in violation of fourth and fifth amendments. It is impossible to glean from a motion any clear indication of how petitioner's constitutional rights may have been violated in connection with his conviction and sentence in the trial court where the motion does no more than allege that the sentence of the trial court was "illegal" and should be vacated because it was imposed in "violation of the fourth and fifth amendments", as such a motion contains no exposition of any facts from which a trial court could detect any basis for unconstitutional action or inaction. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970). Specific facts to support the claim must appear in petition for postconviction relief. DeBaca v. District Court, 163 Colo. 516, 431 P.2d 763 (1967). A defendant need only assert facts that, if true, would provide a basis for relief to warrant a hearing. People v. Simpson, 69 P.3d 79 (Colo. 2003). Petitioner must allege ultimate facts with particularity. The petitioner has the burden to allege with particularity ultimate facts which support a conclusion that a judicial proceeding is illegal or irregular. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied, 382 U.S. 1014, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966). Motion for section (c) review is insufficient where it does not specify facts which constitute the basis for the unconstitutional charge. DeBaca v. People, 170 Colo. 415, 462 P.2d 496 (1969). Motion that fails to contain sufficient allegations to support the claim asserted as the basis for relief may be dismissed for failure to state a claim upon which relief may be granted. People v. Bossert, 772 P.2d 618 (Colo. 1989). And, failing specific facts, no hearing. Failing specific facts to support a claim, no issue is raised which demands an evidentiary hearing. DeBaca v. District Court, 163 Colo. 516, 431 P.2d 763 (1967). If the motion contains no allegations of facts upon which relief can be granted, there is no requirement that an evidentiary hearing be had or that an attorney be appointed to represent the defendant. Kostal v. People, 167 Colo. 317, 447 P.2d 536 (1968); People v. Lyons, 196 Colo. 384, 585 P.2d 916 (1978). And motion, and relief, denied. In a proceeding to compel the trial court to grant the defendant a free transcript of all proceedings had in connection with his criminal conviction, such may be refused where the defendant fails to allege sufficient facts which would warrant the granting of the transcript or which would warrant the granting of relief under section (c). Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970). A motion for review in the trial court as contemplated by the provisions of this rule is insufficient and may be summarily denied where it does not specify the facts which constitute the basis for the unconstitutional charge. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970); People v. Rodriguez, 914 P.2d 230 (Colo. 1996). However, that prisoner's factual allegations seem unbelievable or improbable is not the test set forth in this rule for determining whether a hearing should or should not be afforded the prisoner; unless the motion itself, the files, or the record of the case show that the prisoner is not entitled to relief, he must be given an opportunity to support his allegations with evidence presented at a hearing. Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965). Court of appeals erred in vacating respondent's guilty plea based upon allegations contained in his or her section (c) motion. However, since the allegations, if true, may entitle respondent to relief, the district court must conduct an evidentiary hearing to ascertain the veracity of respondent's claims. People v. Simpson, 69 P.3d 79 (Colo. 2003). Court may dismiss a motion without a hearing if the motion, the files, and the record clearly establish the right to relief. People v. Simons, 826 P.2d 382 (Colo. App. 1991). Defendant must allege with particularity in the motion that a present need exists for the relief sought such as the applicant may be disadvantaged in obtaining parole under a later sentence. People v. Santisteven, 868 P.2d 415 (Colo. App. 1993). Denial of free transcript not an abuse of discretion. Court did not abuse its discretion when it denied a request for free use of a transcript when an indigent defendant failed to demonstrate that he may be entitled to relief under section (c) and that the transcript might contain facts that substantiate his claim. Jurgevich v. District Ct., 907 P.2d 565 (Colo. 1995). 3. Contemporaneous Objection and Waiver. Like habeas corpus, proceeding under this rule governed by equitable principles. This rule affords a convicted person the remedies which are available through a writ of habeas corpus, and like the federal habeas corpus proceeding, a proceeding under this rule is governed by equitable principles. People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976); People v. Bravo, 692 P.2d 325 (Colo. App. 1984). Relief denied where right to counsel waived at trial. A trial court properly denies postconviction relief when the defendant knowingly waived his right to be represented by counsel at trial. Martinez v. People, 166 Colo. 132, 442 P.2d 422, cert. denied, 393 U.S. 990, 89 S. Ct. 474, 21 L. Ed. 2d 453 (1968). Rule is not designed to eliminate the requirement for contemporaneous objection and certain rights not raised at trial will be considered waived. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972). Failure to raise search and seizure issue at trial tantamount to waiver. The contemporaneous objection rule applies to search and seizure issues, and the failure to raise the objection of an illegal search and seizure by proper objection at the trial level is tantamount to a waiver, in which case a trial court properly denies a motion for relief under section (c) based thereon. Brown v. People, 162 Colo. 406, 426 P.2d 764 (1967). As is failure to raise identification issue. Where there never was an issue raised in the trial as to the identification of defendant, this is a contrived issue, and a trial court is correct in refusing an evidentiary hearing based on petitioner's objection to lineup procedures. Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969). And failure to allege lack of speedy trial in motion to dismiss. Where the defendant claims that he pleaded guilty because he was promised that after he had entered his plea the trial court would consider a motion to dismiss for lack of a speedy trial, but makes no such allegation in his motion to dismiss, and there is nothing in the record which could even lead to the inference that such a promise might have been made, the court will not consider the argument. Wixson v. People, 175 Colo. 348, 487 P.2d 809 (1971). One who pleads guilty cannot claim search and seizure illegal. One who pleads guilty is not in a position to successfully move for vacation of judgment on claims of an alleged illegal search and seizure. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). No issue exists as to legality of plea bargain where sentence given vacated. Where the defendant first admitted his guilt upon being promised a minimum sentence prior to his first sentencing, but, upon being given more than that amount of time, his first sentence is vacated, the issue of the legality of his first plea bargain no longer exists in a subsequent motion. James v. People, 162 Colo. 577, 427 P.2d 878 (1967). 4. Burden of Proof. Legality of prior judgment and proceedings presumed. When attacking a conviction and sentence by a motion under this rule, the legality of the judgment and the regularity of the proceedings leading up to the judgment are presumed. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied, 382 U.S. 1014, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966); Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971). When a defendant attacks a conviction and sentence by a motion under section (c), the legality of the judgment and the regularity of the proceedings leading up to the judgment are presumed. People v. Brewer, 648 P.2d 167 (Colo. App. 1982). Burden of proof of allegations in a section (c) motion rests with petitioner. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971); Bresnahan v. Patterson, 352 F. Supp. 1180 (D. Colo. 1973); People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973); Kailey v. Colo. Dept. of Corr., 807 P.2d 563 (Colo. 1991); People v. Fleming, 867 P.2d 119 (Colo. App. 1993), rev'd on other grounds, 900 P.2d 19 (Colo. 1995); People v. Sickich, 935 P.2d 70 (Colo. App. 1996). Pleas of guilty induced by threats or promises are not valid, but upon postconviction procedures to set aside such a plea, it becomes the burden of the petitioner to establish that the plea was entered because of coercion. Normand v. People, 165 Colo. 509, 440 P.2d 282 (1968). The burden is on the defendant section (c) hearing to show that his plea was entered because of coercion. People v. Brewer, 648 P.2d 167 (Colo. App. 1982). And measure of proof on motion is ordinarily proof by preponderance of evidence. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971); People v. Malouff, 721 P.2d 159 (Colo. App. 1986). The burden is upon the defendant to establish by at least the preponderance of the evidence the allegations of his section (c) motion. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971); People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973). In a Crim. P. 35(c) proceeding, the legality of the judgment and the regularity of the proceedings leading up to the judgment are presumed. The burden is upon the movant to establish by a preponderance of the evidence the allegations of the motion for post-conviction relief. If the evidence supports the district court's findings and order, the decision will not be disturbed on review. People v. Hendricks, 972 P.2d 1041 (Colo. App. 1998), rev'd on other grounds, 10 P.3d 1231 (Colo. 2000). District court properly required that petitioner who improperly filed habeus corpus petition establish entitlement to relief under this rule by a preponderance of evidence since the motion should have been treated by the court as a motion under subsection (c)(2) of this rule. Kailey v. Colo. Dept. of Corr., 807 P.2d 563 (Colo. 1991). State is under no duty to present any evidence if it believes that petitioner has failed to meet that burden. Bresnahan v. Patterson, 352 F. Supp. 1180 (D. Colo. 1973). Court need not grant defendant's motion because it denies state's motion for dismissal at the conclusion of the defendant's evidence. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). As denial afforded no effect on whether defendant meets burden. A state motion to dismiss and its denial can be afforded no effect as to whether the defendant meets his burden under this rule. Bresnahan v. People, 175 Colo, 286, 487 P.2d 551 (1971). 5. Evidence Examined. Section (c) hearing criminal, not civil. A section (c) hearing is but one phase of a criminal proceeding, and it is not a civil proceeding. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Trial judge may utilize the complete trial record insofar as possible and pertinent when he rules on a section (c) motion. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). And judge should identify all documents before him at time of trial. The trial judge should identify for the purposes of the record in the section (c) hearing all documents, letters, and reports which were before him as of the time he permitted the defendant to plead at trial, such identification should be made without regard to the ultimate admissibility of the particular document at the section (c) hearing, and the documents thus identified should then be furnished to counsel for petitioners for the purpose of inspection, copying, and use by counsel in the section (c) hearing as applicable rules permit. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). However, rule's purpose cannot be disposed of by reference to trial record alone. The purpose of a section (c) hearing is to take evidence pertinent to the allegations, which cannot be disposed of by reference to the trial record alone. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). And absence of transcript of prior hearing not necessarily equivalent to silent record. The absence of a transcript of a prior providency hearing is not necessarily equivalent to a silent record at the postconviction review hearing, and whether a knowing and voluntary guilty plea was entered by the defendant may be determined by any evidence adduced at his section (c) hearing. People v. Brewer, 648 P.2d 167 (Colo. App. 1982). Taking of depositions governed by criminal rules and statutory provision. The taking of any deposition to be used in a section (c) hearing is governed by the rules on criminal procedure and the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, contained in § 16-9-201 et seq. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). And so subpoenas may be served on out-of-state residents to compel attendance. That the Rules of Civil Procedure do not govern the taking of depositions in connection with a section (c) hearing is without prejudice to the right of a petitioner to serve subpoenas in accordance with the Rules of Criminal Procedure and § 16-9-201 et seq. on out-of-state residents and thereby compel their attendance at a section (c) hearing. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Defendant's attorney for prior hearing and sentencing may testify in postconviction relief hearing. Regarding the voluntariness of a guilty plea, the defendant's knowledge of the elements of the crime may be developed in a postconviction relief hearing, and the defendant's attorney for the prior hearing and sentencing may testify in the postconviction relief hearing that the defendant knew and understood all the elements of the crime charged. People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974). 6. Role of Petitioner and Judge. Petitioner's presence generally necessary. If an evidentiary hearing under section (c) is required, then the petitioner's presence would be necessary under most circumstances. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970). And assistance of counsel essential, unless claim wholly unfounded. An accused has a right to counsel at every stage of the proceeding, and, in the absence of a knowing and intelligent waiver, the assistance of counsel is essential in postconviction proceedings, unless the asserted claim for relief is wholly unfounded. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Where no hearing is necessary, no error is committed where petitioner is absent. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970). Or where case is submitted on agreed statements of facts. Applications for postconviction relief can appropriately be decided on the merits without a plenary evidentiary hearing and without the expense, risk, and inconvenience of transporting the applicants, if in custody, from the prison to the courthouse; such a summary disposition is proper in all cases where there is no factual issue and where the case is submitted on an agreed statement of facts. Dabbs v. People, 175 Colo. 273, 486 P.2d 1053 (1971). Rule contemplates hearing wherever possible before trial judge who presided over the case. A disqualification because he is familiar with what occurred at the trial renders the rule anomalous; familiarity with the circumstances surrounding the trial does not render the judge a material witness. Bresnahan v. Luby, 160 Colo. 455, 418 P.2d 171 (1966). Trial court erred in not holding a hearing on defendant's motions and instead directing defense counsel to conduct an investigation of pertinent allegations and accepting counsel's conclusion that they lacked merit. Such procedure was inappropriate first because defense counsel should not be placed in a position of warranting the validity of his client's assertions, and second because a court in passing upon the validity of a party's assertions must reach its own independent evaluation of such assertions. People v. Breaman, 924 P.2d 1139 (Colo. App. 1996). Weight and credibility given evidence within court's province. The weight and credibility to be given to the testimony of witnesses in a section (c) hearing is within the province of the trial court. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971). Where the trial court found polygraph evidence to be of little weight, it was fully entitled to make such finding as the trier of facts on a motion for postconviction relief. People v. Armstead, 179 Colo. 387, 501 P.2d 472 (1972). Under this rule, the trial court determines all issues of fact and law. Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971). And makes findings and conclusions. In a section (c) hearing the trial court is bound to determine the issues and make findings of fact and conclusions of law. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). Question of whether defendant's burden of proof is met is answered by findings made by the trial judge. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). Page-long comments, analysis, and conclusions by the trial judge are sufficient to establish that the requirement of this rule, that findings and conclusions must be made, was met. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973). Judge's findings are based upon trial record and evidence taken as postconviction hearing. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). Findings and conclusions required under rule must sufficiently set forth basis of ruling. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973); People v. Breaman, 924 P.2d 1139 (Colo. App. 1996). Unconstitutional to place undue emphasis on findings not supported by record. A denial of due process under this rule will exist when the trial court places undue emphasis on findings not supported by the record, and the denial is compounded when the trial court arbitrarily refuses to permit defense counsel to point out to the court the fact that matters not in evidence are being considered. Noland v. People, 175 Colo. 6, 485 P.2d 112 (1971). Trial court lacked jurisdiction to entertain motion to reconsider order denying motion under section (b) of this rule filed more than 120 days after the date of sentencing. People v. Gresl, 89 P.3d 499 (Colo. App. 2003). F. Determination. 1. Relief Granted. Resentencing where long-time intervals and defendant's status changes from juvenile to adult. Long-time intervals between the arrest and the making of the charge, between the arrest and the arraignment, and between the arrest and time of the appointment of an attorney to represent a defendant require a reversal and a remand of a case to the trial court for the purpose of vacating its prior sentence and resentencing a defendant when defendant's sentence was adversely affected by a change in status from juvenile to adult. England v. People, 175 Colo. 236, 486 P.2d 1055 (1971). New trial required where defendant's trial attorneys fail to present any favorable evidence. Where the defendant fails to receive a fair trial because of the failure of his trial attorneys to present any of the evidence favorable to the defendant which was clearly available and discoverable by even rudimentary investigation, and as a result the damaging prosecution's version of the incident is allowed to remain uncontradicted and unimpeached, even though there was evidence to challenge it, the defendant was denied his constitutional right to a fair trial, which requires that the defendant's conviction be vacated and that he be afforded a new trial. People v. Moya, 180 Colo. 228, 504 P.2d 352 (1972). Inquiry into question of effectiveness of counsel. Where guilty plea subjected defendant to deportation proceedings, inquiry must begin with initial determination that defense counsel in criminal case was aware that his client was an alien, and therefore was reasonably required to research relevant immigration law. People v. Pozo, 746 P.2d 523 (Colo. 1987). Guilty plea vacated where no explanation of elements of charge given defendant. Where the record of the hearing held under section (c) is devoid of any evidence that the defendant understood the nature of the charge, and the only explanation of the charge to the defendant was in the wording of the information, which the court did not even read to him, and the court admits on the record that no explanation was given defendant of the elements of the charge, and there is no other indication that he received the requisite knowledge from other sources, his plea of guilty was improperly accepted and had to be vacated. People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974). And where plea results in sentence far in excess to that promised. Where a guilty plea results in a sentence far in excess of that which was promised by the district attorney, the prisoner is entitled to have the sentence vacated and to go to trial on a plea of not guilty when he alleges that he has a valid defense to the charge. Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965). And violation not remedied by resentencing defendant to same term for lesser offense. Resentencing a defendant years later to substantially the same term for a lesser offense does not remedy the violation of the defendant's right to withdraw his guilty plea or have a determination at the time of the trial whether or not he was guilty "as charged" for a greater offense. Burman v. People, 172 Colo. 247, 472 P.2d 121 (1970). Amended sentence invalid where defendant and attorney not notified and not present. An amended sentence handed down by the trial court is invalid where neither the defendant nor his attorney are notified of resentencing, neither is present, and the substantial rights of defendant are violated by these omissions. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972). Where jury not qualified to fix death penalty, entry of life-imprisonment sentence authorized. In a first-degree case, where the United States supreme court affirms the guilty verdict and invalidates the punishment portion of the verdict only because the jury was not constitutionally qualified to fix the death penalty, leaving the sole statutory alternative as to punishment available to the jury that of life imprisonment, the entry by the court of such a judgment is a mere ministerial act within the power and authority of the trial judge under the terms and within the contemplation of section (c). Segura v. District Court, 179 Colo. 20, 498 P.2d 926 (1972). Defendant cannot serve a county jail sentence while incarcerated in the penitentiary, and, conversely, he cannot serve a penitentiary sentence in the county jail. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972). Defendant cannot serve a misdemeanor sentence consecutively to a felony sentence while being held by corrections department. People v. Green, 734 P.2d 616 (Colo. 1987); People v. Battle, 742 P.2d 952 (Colo. App. 1987). 2. Relief Denied. Where confession's admission harmless error, defendant not prejudiced. Even assuming that a confession was involuntarily made, where its admission is harmless error, there is no prejudice to any substantive right of the petitioner. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied, 382 U.S. 1014, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966). Assistance of counsel effective where no evidence full consideration not given case. The effective assistance of counsel is not denied the defendant where there is no evidence to support the assertion that counsel did not keep defendant informed or that anything but full consideration was given to his case. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973). And constitutional for attorney not retained to give postconviction testimony. Postconviction testimony of an attorney contacted, but not retained, on behalf of the defendant discloses no violation of defendant's constitutional right to counsel. LaBlanc v. People, 177 Colo. 250, 493 P.2d 1089 (1972). Petitioner found not entitled to relief for denial of effective assistance of counsel. People v. Stephenson, 187 Colo. 120, 528 P.2d 1313 (1974). District court made detailed and extensive findings in determining that, while defense counsel's performance fell below the range of competency expected from him in certain areas, such deficiencies did not result in prejudice to defendant. Therefore, trial court did not err in denying defendant's Crim. P. 35(c) motion. People v. Hendricks, 972 P.2d 1041 (Colo. App. 1998), rev'd on other grounds, 10 P.3d 1231 (Colo. 2000). Even if counsel had presented certain witness's testimony and other evidence of the events surrounding the giving of defendant's statements in a successful effort to suppress them, in light of overwhelming independent evidence that defendant committed this offense, there was no reasonable probability that the outcome of the trial would have been different. Similarly, trial court did not err in determining that trial counsel's performance was not deficient in deciding not to raise the issue of defendant's competency. People v. Hendricks, 972 P.2d 1041 (Colo. App. 1998), rev'd on other grounds, 10 P.3d 1231 (Colo. 2000). Voluntary guilty plea not set aside. A plea of guilty should not be set aside if a factual basis exists for the plea and if the defendant has knowledge of the elements of the crime and enters the plea voluntarily. People v. Hutton, 183 Colo. 388, 517 P.2d 392 (1973). And plea voluntary where considered, deliberate, advised choice. Where the record indicates a considered, deliberate, advised choice on the part of the defendant to change his plea from not guilty to guilty, the trial court's finding that the guilty plea is voluntary and not coerced is amply supported by the record of the proceedings at the time of the entry of the plea, it not being shown to be otherwise by any evidence presented at the hearing on a section (c) motion. Workman v. People, 174 Colo. 194, 483 P.2d 213 (1971). And where defendant represented by able counsel and understands elements of charge. Where at all relevant times the defendant was represented by able counsel and neither in his motion to vacate the guilty plea, nor in the hearing thereon conducted under this rule, was there any indication that he did not understand the elements of the charge, the substance of the circumstances surrounding the plea indicates that it was voluntarily made with an understanding of the elements of the charge. People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974). Guilty plea upheld where trial judge makes careful and thorough inquiry of defendant. Where the trial court fully complied with the requirements of Crim. P. 11, before granting a defendant's request to withdraw his previous plea and to enter a guilty plea, but the defendant alleges in his Crim. P. 35(c) motion that his plea of guilty was entered because of fear and duress, the plea will be upheld when the record reflects that the trial judge did with care and thoroughness make inquiry of the defendant in order to assure himself that the defendant's act of pleading guilty was his free and voluntary act. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971). Where the record on its face shows that the trial court in a providency hearing advised the petitioner of the possible sentence term, the sentence imposed was within that range, and the trial court did not treat the offense as a second offense, an evidentiary hearing on the petitioner's contention that the sentencing court failed to properly inform him of the possible penalties for crimes to which he entered a guilty plea is not required and the motion for relief will be denied. Hyde v. Hinton, 180 Colo. 324, 505 P.2d 376 (1973). The failure to advise a defendant of the provisions of mandatory parole after the defendant has entered into a plea agreement and the stipulated sentence and mandatory parole period is less than the maximum sentence the court could have imposed upon the defendant is harmless error, thus the court affirmed the trial court's order summarily denying the defendant's motion under this rule. People v. Munoz, 9 P.3d 1201 (Colo. App. 2000). Failure to convey a plea offer is deficient performance by defense counsel and a violation of the standard practice that a defense attorney should follow, but the failure did not constitute prejudice against defendant requiring reversal because the record did not show reasonable probability that the defendant would have accepted the offer if it had been timely communicated. People v. Perry, 68 P.3d 472 (Colo. App. 2002). No credit for presentence jail time where time taken into consideration in sentencing. Where the defendant is sentenced by the judge after the judge is advised of the time that the defendant has spent in jail before the sentence is imposed, where the defendant is advised by the judge at the time sentence is imposed that the time he spent in custody was taken into consideration in determining his sentence, and where the sentence imposed, plus the time spent in custody, is far less than the maximum penalty prescribed by law, the defendant is not entitled to credit for presentence jail time through a postconviction proceeding. People v. Puls, 176 Colo. 71, 489 P.2d 323 (1971). Failure to provide transcript on appeal found not to prejudice defendant. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). The equitable doctrine of laches may be invoked to bar postconviction relief. People v. Bravo, 692 P.2d 325 (Colo. App. 1984). Defendant pleading guilty was sufficiently informed of mens rea element of the offense of rape by information read to him that contained the term "feloniously" and, therefore, postconviction relief was properly denied. Wilson v. People, 708 P.2d 792 (Colo. 1985). Present need standard for postconviction relief not established under collateral attack statute for 30-year-old conviction for violations of municipal ordinances. City and County of Denver v. Rhinehart, 742 P.2d 948 (Colo. App. 1987). The trial court was correct in denying defendant's motion under this rule since defendant, who was extradited to Colorado for trial on two charges, was not entitled to credit in second sentence for time spent in confinement prior to imposition of first sentence, if the first sentence had allowed presentence confinement credit for that period of time. People v. Garcia, 757 P.2d 1110 (Colo. App. 1988). Court correctly denied Crim. P. 35(c) motion and held that no conflict of interest existed to defeat defendant's right to counsel. Public defender represented both the defendant and another person against whom the authorities had no evidence, but whom the defendant had admitted to be a co-participant in the burglary. The court stated that the defendant could not seek to profit from the collapse of a self-created situation. People v. Wood, 844 P.2d 1299 (Colo. App. 1992). Defendant may not seek review of felony conviction under section (c) because, under the plea agreement, judgment and sentencing did not enter but were deferred. People v. Kazadi, __ P.3d __ (Colo. App. 2011). When a criminal defendant, who pled guilty to charge, dies while his appeal for relief from his sentence is pending, an abatement of the underlying conviction is not warranted. People v. Rickstrew, 961 P.2d 1139 (Colo. App. 1998). A witness's exercise of the privilege against self-incrimination does not give rise to a violation of the defendant's right to a fair trial or to present a defense. People v. Coit, 50 P.3d 936 (Colo. App. 2002). Because the United States supreme court's decision in Crawford v. Washington, 541 U.S. 36 (2004), established a procedural, not a substantive, rule and it was not a "watershed" rule, Crawford does not apply retroactively to cases on collateral review where the defendant's conviction became final prior to Crawford. Under prior case law, out-of-court statements properly admitted. People v. Edwards, 101 P.3d 1118 (Colo. App. 2004), aff'd, 129 P.3d 977 (Colo. 2006). G. Successive Motions. Repetitive postconviction proceedings with some legal and factual claims not afforded by constitution. Although postconviction relief is grounded upon constitutional principles, it does not afford any person the right to clog the judicial machinery with repetitive postconviction proceedings seeking relief on the same principles of law and the same factual claims. People ex rel. Wyse v. District Court, 180 Colo. 88, 503 P.2d 154 (1972). Defendant is unauthorized to file successive motions based upon same or similar allegations in the hope that a sympathetic judicial ear may eventually be found. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Especially where defendant fails to seek review of denial of first similar claim. Where the defendant fails to avail himself of the right to have review of the propriety of the trial court's denial of his motion and thereafter files a second motion to vacate in which he reurges the same grounds raised in the first motion, the trial court under section (c), need not entertain such second and successive motion. Henson v. People, 163 Colo. 302, 430 P.2d 475 (1967). The court is not required to entertain successive motions for similar postconviction relief on behalf of the same prisoner. Graham v. Zavaras, 877 P.2d 363 (Colo. 1994); People v. Harmon, 3 P.3d 480 (Colo. App. 2000). Standards on successive motions for review. In the case of a successive motion for postconviction review, the appropriate consideration is whether the defendant's constitutional claim has been fully and finally litigated in the prior postconviction proceeding. People v. Billips, 652 P.2d 1060 (Colo. 1982). The doctrine of res judicata is not an appropriate standard for the resolution of postconviction claims. People v. Billips, 652 P.2d 1060 (Colo. 1982). Collateral estoppel inapplicable. Although the doctrine of estoppel is as applicable to criminal proceedings as it is to civil proceedings, it is inapplicable in a section (c) proceeding. People v. Wright, 662 P.2d 489 (Colo. App. 1982). All allegations relating to constitutional violations should be included in single motion. In light of the right to counsel in postconviction proceedings, all allegations relating to the violation of a defendant's constitutional rights should be included in a single section (c) motion. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). All allegations relating to the violation of defendant's constitutional rights should be included in a single section (c) motion. People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). And failure to do so results in summary denial of second similar application. The failure of an application to contain all factual and legal contentions will, unless special circumstances exist, ordinarily result in a second application containing such grounds being summarily denied. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974). And prisoner deliberately withholding ground for postconviction relief waives right to second hearing. If a prisoner deliberately withholds one of two grounds for postconviction relief at the time of filing his first application, he may be deemed to have waived his right to a hearing on the second ground in subsequent application. This interpretation is not intended to eliminate any judicial determination on the merits of a prisoner's claims, but rather is to ensure that all claims are considered in one proceeding. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Second motion dismissed unless failure to include newly-asserted grounds in first motion excusable. If a second or successive motion is filed, it may be summarily dismissed without a hearing unless the trial judge finds that the failure to include newly-asserted grounds for relief in the first motion is excusable. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). Such as where defendant urges incompetency of counsel representing him in first hearing. Ordinarily, a defendant would be expected to raise the matter of competency of counsel in a section (c) proceeding, but where his trial counsel is still representing him, and this same counsel prepares the motion of a new trial which does not mention the subject and a new counsel then comes into the case, then under these particular circumstances, if the defendant wishes to urge the point of incompetency of his initial counsel, he may attempt to raise the point in a further section (c) proceeding in the trial court. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). Such as where the factual and legal allegations raised in the second motion have not previously been fully and finally decided. People v. Wimer, 681 P.2d 967 (Colo. App. 1983). In the absence of special circumstances, courts need not consider successive requests for the same relief based on the same or similar allegations on behalf of the same prisoner. People v. Holmes, 819 P.2d 541 (Colo. App. 1991). Because defendant did not know of the changed double jeopardy standard when the defendant filed his first motion under section (c), the provisions of subsection (c)(1) mandate that the defendant's application for relief is not barred under the provisions of subsection (c)(3). People v. Allen, 843 P.2d 97 (Colo. App. 1992). Defendant's actions in specifically withdrawing those claims from the trial court's consideration at an earlier proceeding which he argues should have been addressed in the second proceeding, constitute an abandonment of those claims. People v. Abeyta, 923 P.2d 318 (Colo. App. 1996). Defendant's section (c) motion raising cognizable constitutional claims is not successive merely because he had unsuccessfully attempted to raise those claims in his prior appeal. People v. Diaz, 985 P.2d 83 (Colo. App. 1999). Defendant's postconviction motion based on the voluntariness of his guilty plea as it related to the quality of his counsel was properly denied as successive under subsection (c)(3)(VII) of this rule, where lengthy evidentiary hearing was held on defendant's Crim. P. 32(d) motion claiming that his plea was not knowing, voluntary, and intelligent due to ineffective assistance of counsel. People v. Vondra, 240 P.3d 493 (Colo. App. 2010). Missouri v. Seibert, 542 U.S. 600 (2004), not a "watershed rule of criminal procedure". Therefore it is not applied retroactively to defendant's conviction that was final prior to its announcement. Court properly denied hearing on defendant's section (c) motion because it did not meet the exception in subsection (c)(3)(VI)(b). People v. McDowell, 219 P.3d 332 (Colo. App. 2009). H. Review on Appeal. Appellate review of decisions made under this rule may be made. Henry v. Tinsley, 344 F.2d 109 (10th Cir. 1965); Ruark v. Tinsley, 350 F.2d 315 (10th Cir. 1965). Including review of order denying relief. Previously, it was not clear whether an order denying relief sought under this rule was appealable. Nevertheless, denial of such relief can now be appealed. Smith v. Tinsley, 223 F. Supp. 68 (D. Colo. 1963). An order of a trial court denying a motion to vacate is a final order reviewable on appeal. Henson v. People, 163 Colo. 302, 430 P.2d 475 (1967). Question raised for first time in postconviction motion properly before appellate court. A question presented on appeal which was raised for the first time in a postconviction motion and has not been previously considered or disposed of on appeal is properly before an appellate court. Trujillo v. People, 178 Colo. 136, 496 P.2d 1026 (1972). Including matters not raised in new trial motion. While it is true that on appeal an appellate court will not consider a matter not raised in a new trial motion, this constraint does not apply to a section (c) motion. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970). But matters not contained in motion cannot be considered on appeal. The ground that certain exhibits were erroneously received upon trial because of an alleged lack of foundation, not having been contained in the section (c) motion filed in the trial court, cannot be raised for the first time on appeal. Walters v. People, 166 Colo. 90, 441 P.2d 647 (1968). Issue not raised in motion or hearing not reviewable. An issue not raised in either section (c) motion or at the trial court hearing is not properly before the appellate court for review. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973); People v. Simms, 185 Colo. 214, 523 P.2d 463 (1974). Relief pursuant to section (b) of this rule is discretionary and the exercise of the sentencing court's discretion is generally not subject to appeal. However, defendant's appeal was not barred where the sentencing court declined to entertain the defendant's motion and exercise its discretion for the reason that it erroneously considered itself bound to impose a sentence to the department of corrections by statute. Shipley v. People, 45 P.3d 1277 (Colo. 2002). Defendant's claim of statutory violation in imposition of consecutive sentences is barred in postconviction proceeding because it was available to defendant to be raised on his direct appeal and was not raised at that time. People v. Banks, 924 P.2d 1161 (Colo. App. 1996). To merely charge that a trial proceeding was "unconstitutional" is wholly insufficient as a basis for relief or review in an appellate court. Peirce v. People, 158 Colo, 81, 404 P.2d 843 (1965). Where motion specifies grounds for relief, trial court conducts hearing before appeal determined. Before the merits of an appeal can be determined, it might be necessary first that the trial court conduct a hearing into the merits of the allegations made in the petition for section (c) relief where the motion sets forth facts constituting proper grounds for relief. Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965); Black v. People, 166 Colo. 358, 443 P.2d 732 (1968). And hearing should be granted where facts supporting claim appear outside record. Where the very basis of defendant's claim of error is that the trial court should have granted an evidentiary hearing because the facts he alleges in his motion do not appear in the record, then, however regular the proceedings might appear from the trial transcript, it still might be the case that the petitioner did not make an intelligent and understanding waiver of his constitutional rights at trial if the facts on which petitioner's claim is predicated are outside the record, and the court should have granted evidentiary hearing. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). Otherwise, state to furnish transcript on appeal to justify trial court's determination. Where the defendant asserts that his plea was involuntary for reasons not appearing on the record, it is incumbent on the state to provide the appellate court with a transcript which shows that the trial court at the time of a guilty plea made such inquiry as to justify its determination without a hearing on a section (c) petition that defendant's plea was voluntarily made. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967). Trial court's judgment not disturbed where evidence amply supports findings. Where the evidence before the trial court amply supports the findings and holding of the trial court, the judgment of the trial court on a section (c) motion will not be disturbed on review. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971). Vacation of guilty plea not upset absent extreme circumstances. When a trial judge holds a hearing on a section (c) motion and determines after hearing the testimony that the interests of justice require the vacation of a guilty plea and that a trial be held on the question of guilt or innocence, this determination will not be upset by an appellate court, except in extreme circumstances. People v. Gantner, 173 Colo. 92, 476 P.2d 998 (1970). Denial of motion upheld where sufficient evidence to convict the defendant is found. People v. Grass, 180 Colo. 346, 505 P.2d 1301 (1973). Including testimony of defendant at postconviction hearing concerning truth of probation report. Where a motion under this rule asserts that the defendant was denied the opportunity to confront the witnesses furnishing the information contained in a probation report which he contends was incorrect and prejudicial to him, but at the hearing on this motion defendant was permitted to testify concerning the truth of the matters contained in the probation report and to give his explanation of them, the record supports the trial court's denial of the motion. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972). Trial court errs in not setting aside conviction where massive, prejudicial publicity. A trial court errs in determining that it cannot compare present day standards of newspaper conduct to past happenings in denying a motion under section (c) to set aside the conviction of a defendant, since the line of cases culminating in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), hold that the publicity can be so "massive, pervasive, and prejudicial" that the denial of a fair trial may be presumed, and the court therefore also erred in holding that a showing must be made that the jurors were actually and directly affected by the publicity. Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). And order denying motion reversed where rule on judicial plea-bargain inquiry not followed. The failure of a trial court to follow the requirements of Crim. P. 11, as to the inquiry to be conducted before the acceptance of a plea necessitates a reversal of the order of the trial court denying defendant's section (c) motion. Westendorf v. People, 171 Colo. 123, 464 P.2d 866 (1970). Denial of motion reversed with directions to conduct new hearing. People v. Burger, 180 Colo. 415, 505 P.2d 1308 (1973). Trial court erred in denying defendant's motion where defendant was not advised that, in addition to any term of incarceration, a separate and additional term of parole was a required consequence of his plea. People v. Espinoza, 985 P.2d 68 (Colo. App. 1999). Setting definite execution date in order granting stay of execution not unconstitutional. The fact that an appellate court sets definite execution date in order granting a stay of execution pending the determination of postconviction relief is not "suggestion of predetermination" in violation of due process and does not constitute an implied direction to deny petitioner relief. Bell v. Patterson, 279 F. Supp. 760 (D. Colo. 1968), aff'd, 402 F.2d 394 (10th Cir. 1968), cert. denied, 403 U.S. 955, 91 S. Ct. 2279, 29 L. Ed. 2d 865 (1971). Court of appeals has jurisdiction to decide if trial court erred in granting a new trial under postconviction relief motion when issues in motion were brought pursuant to the "other remedies" portion of this rule. People v. Naranjo, 821 P.2d 836 (Colo. App. 1991). An order of a trial court granting or denying a motion filed under section (c) of this rule is a final order reviewable on appeal. Such order becomes final after the period in which to perfect an appeal expires. People v. Janke, 852 P.2d 1271 (Colo. App. 1992); People v. Ovalle, 51 P.3d 1073 (Colo. App. 2002). Since an appellate court is not in as good a position as the trial court to make factual findings, the court of appeals erred in vacating respondent's conviction where the trial court denied the section (c) motion without a hearing. People v. Simpson, 69 P.3d 79 (Colo. 2003). Trial court did not abuse its discretion in denying defendant's Crim. P. 35(c) motion without an evidentiary hearing on ineffective assistance of counsel claim. The defendant received sufficient notice from the Crim. P. 11 advisement form and had an affirmative obligation to request clarification at the providency hearing. People v. DiGuglielmo, 33 P.3d 1248 (Colo. App. 2001). Once a final order under this rule is entered, the only means by which a trial court may alter, amend, or vacate such order is by an appropriate motion under C.R.C.P. 59 or 60. Accordingly, people's argument that the doctrine of law of the case authorizes trial court to reconsider final order is rejected. People v. Janke, 852 P.2d 1271 (Colo. App. 1992). I. Federal Habeas Corpus. In Colorado, habeas corpus is not a substitute for review by an appeal. Martinez v. Patterson, 382 F.2d 1002 (10th Cir. 1967). Federal relief denied where state remedies under this rule not exhausted. A federal court will deny "habeas corpus" where one fails to exhaust state remedies by failing to seek state review of a trial court's denial of a motion under this rule. Breckenridge v. Patterson, 374 F.2d 857 (10th Cir.), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19 L. Ed. 2d 56 (1967); Kanan v. Denver Dist. Court, 438 F.2d 521 (10th Cir. 1971). Where the petitioner fails to raise any of his allegations of error in state courts either by direct appeal or by means of this rule, he has not exhausted his state remedies on these issues and cannot obtain habeas corpus relief from the federal courts. Thompson v. Ricketts, 500 F. Supp. 688 (D. Colo. 1980). But mere availability of possible remedy under this rule cannot preclude federal writ of "habeas corpus". Smith v. Tinsley, 223 F. Supp. 68 (D. Colo. 1963). But see Breckenridge v. Patterson, 374 F.2d 857 (10th Cir.), cert. dismissed, 389 U.S. 801, 88 S. Ct. 9, 19 L. Ed. 2d 56 (1967); Kanan v. Denver Dist. Court, 438 F.2d 521 (10th Cir. 1971). Postconviction hearing unnecessary where state supreme court decision already controls question. Where the Colorado supreme court reaches a conclusion on the substantive issue stating it in such a way that under ordinary circumstances a trial court would feel bound by the decision, even though it is only dictum, and would therefore deny a motion made pursuant to section (c), on the grounds that the Colorado supreme court has already decided the question, then, for all practical purposes, the petitioner has exhausted his state remedies, and a petition for federal "habeas corpus" is proper. Peters v. Dillon, 227 F. Supp. 487 (D. Colo. 1964), aff'd, 341 F.2d 337 (10th Cir. 1965). State remedies exhausted by prior prosecution of state "habeas" action. Where the federal "habeas corpus" act requires that a defendant exhaust one of his available alternative state remedies, the maintenance of a motion under this rule is not necessary where there has been prior prosecution of a "habeas corpus" action. Martinez v. Tinsley, 241 F. Supp. 730 (D. Colo. 1965).