The People of the State of Colorado, Plaintiff-Appellee, v. Gary William Carrico, Jr., Defendant-Appellant. (2023)

ORDER AFFIRMED

¶ 1 Defendant, Gary William Carrico, Jr. (Carrico), appeals the district court's order denying his second Crim. P. 35(c) motion for postconviction relief without a hearing, concluding that the motion was successive. We affirm, albeit on different grounds.

I. Background

¶ 2 In September 2008, a jury convicted Carrico of two counts of sexual assault on a child by one in a position of trust where the victim was under the age of fifteen. The district court sentenced Carrico to two terms of eight years to life in the custody of the Department of Corrections, to be served concurrently.

¶ 3 Carrico filed a direct appeal contending that there were multiple trial errors, including that he should have been afforded a hearing on a rape shield statute issue, prosecutorial misconduct, and ineffective assistance of counsel. A division of this court affirmed his convictions and sentences and declined to address his assertion of ineffective assistance of counsel. People v. Carrico, (Colo. App. No. 09CA0183, Nov. 18, 2010) (not published pursuant to C.A.R. 35(f)) (Carrico I).

¶ 4 In May 2012, Carrico filed his first Crim. P. 35(c) motion, contending that trial counsel was ineffective, appellate counsel was ineffective, and new evidence had been discovered requiring Carrico be granted a new trial. The first postconviction court held a two-day hearing before denying him relief.

¶ 5 In June 2013, Carrico appealed the first postconviction court's denial of postconviction relief to this court. On appeal, Carrico asserted that there was newly discovered evidence, that his defense counsel was ineffective, and that the Colorado Sex Offender Lifetime Supervision Act of 1998 was unconstitutional. A division of this court affirmed the first postconviction court's decision, concluding that the newly discovered evidence did not warrant a new trial, that Carrico's defense counsel was not ineffective, and that the Colorado Sex Offender Lifetime Supervision Act of 1998 was not unconstitutional. People v. Carrico, (Colo. App. No. 13CA1306, Apr. 6, 2017) (not published pursuant to C.A.R. 35(e)) (Carrico II).

¶ 6 In July 2020, Carrico filed a second Crim. P. 35(c) motion alleging ineffective assistance of postconviction counsel. Specifically, Carrico alleged that postconviction counsel's performance was deficient because postconviction counsel failed to prove Carrico's claims of newly discovered evidence and ineffective assistance of trial and appellate counsel in Carrico I, postconviction counsel failed to argue other instances of ineffective assistance of trial counsel, postconviction counsel failed to communicate an alleged plea offer, and postconviction counsel ignored judicial bias against Carrico. In a written order, the second postconviction court denied Carrico's second Crim. P. 35(c) motion, finding that Carrico failed to state facts supporting the conclusion that postconviction counsel was ineffective and that the claims were successive.

¶ 7 This appeal followed.

II. Carrico's Second Crim. P. 35(c) Motion Was Time Barred

¶ 8 On appeal, Carrico contends that the district court erred by summarily denying his second petition for postconviction relief by departing from the mandatory procedure outlined in Crim. P. 35(c). Specifically, Carrico contends that the district court erred in finding that Carrico “failed to state facts supporting either the conclusion that counsel was incompetent or that Defendant was prejudiced.”

¶ 9 In his response, the Attorney General contends that Carrico's second Crim. P. 35(c) motion is time barred pursuant to section 16-5-402(1.5), C.R.S. 2022. In his reply, Carrico alleges justifiable excuse for his untimely filing.

¶ 10 We affirm the district court's order, but we rely on different grounds. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (appellate courts have discretion to affirm a district court's ruling on different grounds than those on which the district court relied); People v. Bowerman, 258 P.3d 314 (Colo. App. 2010).

A. Standard of Review

¶ 11 We review the denial without a hearing of a Crim. P. 35(c) motion de novo. People v. Cali, 2020 CO 20, ¶ 14. Likewise, whether the facts alleged, if true, would constitute justifiable excuse or neglect so as to entitle the defendant to a hearing on this issue is a question of law that we review de novo. People v. Chavez-Torres, 2019 CO 59, ¶ 11.

B. Analysis

¶ 12 In his motion and again on appeal, Carrico asserts ineffective assistance claims related to his first postconviction counsel. But section 16-5-402 required those claims to be raised within three years of his conviction. § 16-5-402(1) (“[N]o person who has been convicted ․ under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction ․ unless such attack is commenced within the applicable time period,” which, for non-class 1 felonies, is three years). Our supreme court has said that, for purposes of section 16-5-402, a conviction becomes final when the direct appeal is exhausted and the appellate mandate issues. Hunsaker v. People, 2021 CO 83, ¶¶ 26, 36; People v. Hampton, 876 P.2d 1236, 1241 (Colo. 1994).

¶ 13 With these principles in mind, we look to this case's procedural history.

1. Procedural History

¶ 14 The specific dates of the procedural history here are essential, and to more clearly illustrate the timeline, we have laid out the key dates below:

• September 10, 2008: Carrico is convicted;

• January 26, 2009: Carrico files his direct appeal;

• August 3, 2011 (conviction is final): a division of this court affirms and the mandate issues in Carrico I;

• May 31, 2012 (nine months after finality): Carrico files his first Crim. P. 35(c) motion;

• June 6, 2013 (one year and ten months after finality): the district court denies postconviction relief;

• July 18, 2013 (one year and eleven months after finality): Carrico appeals the district court's denial of postconviction relief;

• January 25, 2018 (six years and five months after finality): a division of this court affirms and the mandate issues in Carrico II; and

• July 23, 2020 (eight years and eleven months after finality): Carrico files his second Crim. P. 35(c) motion.

¶ 15 Carrico's conviction became final when this court issued its mandate following this court's opinion in Carrico I on August 3, 2011. See Hunsaker, ¶ 36. Thus, Carrico had until August 3, 2014, to collaterally attack the validity of his conviction. Carrico did collaterally attack his conviction within this period by filing his first Crim. P. 35(c) motion in May 2012 (followed by his appeal of the postconviction court's denial of his first Crim. P. 35(c) motion in July 2013). Carrico has a justifiable excuse for his delay in filing his second Crim. P. 35(c) motion up until the mandate issued in Carrico II because Carrico could not have collaterally attacked his conviction with a second Crim. P. 35(c) motion until the mandate issued. People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002) (justifiable excuse or excusable neglect analysis begins with the premise that ineffective postconviction counsel claims cannot be asserted until after timely postconviction relief proceedings and appeals therefrom are exhausted).

2. Carrico Failed to Allege Justifiable Excuse or Excusable Neglect

¶ 16 In his reply brief, Carrico argues that he could not have asserted claims of ineffective assistance of his first postconviction counsel until the mandate issued in Carrico II, and we agree. Where we disagree with Carrico is his claim that he has adequately alleged justifiable excuse or excusable neglect pursuant to section 16-5-402(2)(d) for the period following the issuance of the mandate in Carrico II — that is, for the two and a half years between January 25, 2018, and July 23, 2020.

¶ 17 Carrico asserts that even before the mandate issued in Carrico II, he was “attempting to contact attorneys and pursue any available avenue of relief.” Carrico goes on to say that he “retained counsel for his postconviction petition in September of 2019, and despite the onset of the pandemic and the departure of primary counsel on this case, [his] petition was investigated, drafted, and filed within ten months.” Carrico contends that his efforts to retain postconviction counsel amount to justifiable excuse or excusable neglect. We disagree.

¶ 18 Justifiable excuse or excusable neglect is where the failure to act results from circumstances that would cause a reasonably careful person to neglect a duty or if there has been a failure to take proper steps at the proper time, not because of carelessness, but as a result of some unavoidable hindrance or occurrence. People v. Baker, 104 P.3d 893, 896 (Colo. 2005).

¶ 19 In determining whether a defendant established justifiable excuse or excusable neglect, relevant factors include whether (1) there were circumstances or outside influences that prevented the defendant from challenging the conviction; (2) the defendant knew the conviction was flawed and timely pursued relief; (3) the defendant had reason to question the conviction's validity, investigated that, and took advantage of avenues of relief that were available; (4) the defendant had other means of preventing the government from using the conviction so that a postconviction challenge was previously unnecessary; and (5) the delay will affect the prosecution's ability to defend against the Crim. P. 35(c) motion. People v. Wiedemer, 852 P.2d 424, 441-42 (Colo. 1993).

¶ 20 Beginning with the premise that Carrico had a justifiable excuse up until January 25, 2018, we turn to Carrico's explanation of the gap of time between when the mandate issued in Carrico II and when Carrico filed his second Crim. P. 35(c) motion in July 2020. See Wiedemer, 852 P.2d at 441 (in making the determination of whether a defendant has justifiable excuse or excusable neglect, it is appropriate to consider the circumstances existing throughout the entire period from the inception of the conviction in question); see also Clouse, 74 P.3d at 341 (postconviction counsel claims cannot be asserted until after timely postconviction relief proceedings and appeals therefrom are exhausted).

¶ 21 Per Carrico's second Crim. P. 35(c) motion, the following events occurred after the mandate issued in Carrico II:

• Carrico spoke with Attorney Tom Carberry in April 2018;

• Carrico spoke with Attorney Jonathan Reppucci in May 2018;

• Carrico spoke with Attorney Linda Lee in February 2019;

• Carrico spoke with Attorney Allison Ruttenberg in April 2019;

• Carrico retained counsel in September 2019;

• Carrico's retained counsel withdrew in April 2020; and

• Carrico was assigned new counsel in the same firm and his second motion for postconviction relief was filed in July 2020.

¶ 22 Carrico also lists the following events, but they are undated:

• Carrico “wrote to multiple innocence projects and organizations helping the wrongfully convicted”;

• Carrico reached out to Dean Tong, an expert in sex assault cases;

• Carrico “filed grievances against the presiding judge and prosecutor”;

• Carrico attempted to file, pro se, for federal relief multiple times; and

• Carrico's partner and primary support, Ms. Carrico, was unable to help him for a period of time as she underwent treatment for depression.

¶ 23 Divisions of this court have held that lack of legal counsel does not amount to justifiable excuse or excusable neglect for an untimely filed collateral attack, and we agree. See People v. McPherson, 53 P.3d 679, 682 (Colo. App. 2001); see also People v. Vigil, 955 P.2d 589, 592 (Colo. App. 1997). Therefore, even accepting Carrico's allegations as true, he has failed to account for periods of time in which he did not challenge his conviction based on the alleged ineffectiveness of postconviction counsel and he failed to state allegations that account for his delay beyond attempting to retain counsel. The only specificity we have regarding Carrico's allegations are the four identified months in which he spoke with attorneys and the month in which he secured an attorney. We do not have any information on whether those attorneys were considering the case for some period of time, if he was awaiting a response, or allegations accounting for any other outside influences that he could reasonably rely on to prevent his collateral attack from moving forward.

¶ 24 Aside from making general references to attempting to secure an attorney and pursue postconviction relief, Carrico does not identify circumstances or outside influences that prevented him from challenging his convictions beyond his lack of legal counsel — he only states that he contacted attorneys on four separate occasions and ultimately retained counsel in September 2019. And most of the over-two-year period not accounted for by Carrico occurred before the COVID-19 pandemic, which Carrico argues also supports his claim of justifiable excuse and excusable neglect.

¶ 25 Because Carrico has failed to allege specific facts accounting for “the entire period from the inception of the conviction” to establish justifiable excuse or excusable neglect for the late filing, the district court did not err in denying his motion. See Vigil, 955 P.2d at 591-92 (defendant's indigence and lack of legal assistance did not constitute justifiable excuse or excusable neglect).

¶ 26 In sum, considering the circumstances alleged throughout the entire period, we conclude that Carrico did not adequately allege justifiable excuse or excusable neglect for his untimely filing. See Wiedemer, 852 P.2d at 441. Because we have concluded that Carrico's second Crim. P. 35(c) motion is time barred, we do not need to reach whether the motion is successive or the merits on appeal.

III. Conclusion

¶ 27 We affirm the order denying Carrico's claim for postconviction relief.

¶ 28 I respectfully dissent from the majority's decision to affirm the postconviction court's order. I would, instead, reverse and remand the case to the district court for it to (1) hold an evidentiary hearing and make findings about whether justifiable excuse or excusable neglect existed for Carrico's belated ineffective assistance of postconviction counsel motion; and (2) if it finds justifiable excuse or excusable neglect, hold an evidentiary hearing on the merits of at least some of Carrico's claims of ineffective assistance of postconviction counsel.

I. Analysis

¶ 29 In his motion and again on appeal, Carrico asserts ineffective assistance claims related to his postconviction counsel. Section 16-5-402, C.R.S. 2022, required those claims to be raised within three years of his conviction. § 16-5-402(1) (“[N]o person who has been convicted ․ under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction ․ unless such attack is commenced within the applicable time period,” which, for non-class 1 felonies, is three years.). Our supreme court has said that, for purposes of section 16-5-402, a conviction becomes final when the direct appeal is exhausted and the appellate mandate issues. Hunsaker v. People, 2021 CO 83, ¶¶ 26, 36; People v. Hampton, 876 P.2d 1236, 1241 (Colo. 1994).

¶ 30 I agree with the procedural history timeline laid out in the majority, and that Carrico's conviction became final when the court of appeals issued its mandate following this court's opinion in People v. Carrico, (Colo App. No. 09CA0183, Nov. 18, 2010) (not published pursuant to C.A.R. 35(f)) (Carrico I), on August 3, 2011. See Hunsaker, ¶ 36. Thus, Carrico had until August 3, 2014, to collaterally attack the validity of his conviction.

¶ 31 As noted by the majority, Carrico did timely collaterally attack his conviction by filing his first Crim. P. 35(c) motion in May 2012 (which was followed by his appeal of the postconviction court's denial of his first Crim. P. 35(c) motion in July 2013). I also agree with the majority that Carrico has a justifiable excuse for his delay in challenging the effectiveness of his postconviction counsel up until the mandate issued in People v. Carrico, (Colo. App. No. 13CA1306, Apr. 6, 2017) (not published pursuant to C.A.R. 35(e)) (Carrico II), because Carrico could not have collaterally attacked his conviction with a second Crim. P. 35(c) motion until the mandate from the first postconviction proceeding issued. People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002) (justifiable excuse or excusable neglect analysis begins with the premise that ineffective postconviction counsel claims cannot be asserted until after timely postconviction relief proceedings and appeals therefrom are exhausted).

¶ 32 I also agree with the majority that when making the determination of whether a defendant has justifiable excuse or excusable neglect, the postconviction court must consider the circumstances existing throughout the entire period from the inception of the conviction in question. See People v. Wiedemer, 852 P.2d 424, 441 (Colo. 1993).

¶ 33 Where I part ways with the majority is in the analysis of the adequacy of the allegations of justifiable excuse or excusable neglect accounting for the two years and six months between when the mandate issued in Carrico II (January 2018) and when Carrico filed his second Crim. P. 35(c) motion (July 2020).

A. Carrico Sufficiently Alleged Justifiable Excuse or Excusable Neglect

¶ 34 Carrico asserts that even before the mandate issued in Carrico II, he was “attempting to contact attorneys and pursue any available avenue of relief.” Carrico goes on to say that he “retained counsel for his postconviction petition in September of 2019, and despite the onset of the pandemic and the departure of primary counsel on this case, [his] petition was investigated, drafted, and filed within ten months.” Carrico contends that his allegations are sufficient to warrant a hearing on whether justifiable excuse or excusable neglect accounts for his untimely filing. I agree.

¶ 35 Justifiable excuse or excusable neglect is where the failure to act results from circumstances that would cause a reasonably careful person to neglect a duty or if there has been a failure to take proper steps at the proper time, not because of carelessness, but because of some unavoidable hindrance or occurrence. People v. Baker, 104 P.3d 893, 896 (Colo. 2005).

¶ 36 In determining whether a defendant established justifiable excuse or excusable neglect, relevant factors include whether (1) there were circumstances or outside influences that prevented the defendant from challenging the conviction; (2) the defendant knew the conviction was flawed and timely pursued relief; (3) the defendant had reason to question the conviction's validity, investigated that, and took advantage of avenues of relief that were available; (4) the defendant had other means of preventing the government from using the conviction so that a postconviction challenge was previously unnecessary; and (5) the delay will affect the prosecution's ability to defend against the Crim. P. 35(c) motion. Wiedemer, 852 P.2d at 441-42.

¶ 37 Per the allegations in Carrico's second Crim. P. 35(c) motion (and as accurately detailed by the majority), after the mandate issued in Carrico II, he spoke with four different attorneys about taking his case between April 2018 and April 2019; once counsel was retained, there was further disruption in his representation; and it took numerous months to ultimately investigate, draft, and (in July 2020) file his second motion for postconviction relief. He also asserts in his motion that he “wrote to multiple innocence projects and organizations helping the wrongfully convicted,” reached out to an expert in sex assault cases, and attempted to file, pro se, for federal relief multiple times.

¶ 38 Based on the above allegations, I am reluctant to conclude that, as a matter of law, justifiable excuse or excusable neglect did not exist. Carrico's attempts to secure representation, the external obstacles he faced (i.e., obstacles created by the pandemic), and (once he did secure representation) the time it took to draft and file his second Crim. P. 35(c) motion could conceivably constitute sufficient justifiable excuse or excusable neglect, depending on the evidence he presents in support of the contention.

¶ 39 Therefore, I would conclude that Carrico has alleged sufficient facts that, if true, would warrant a hearing on justifiable excuse or excusable neglect. Because the issue of justifiable excuse and excusable neglect is ordinarily a question of fact, I would remand the case to the district court for its determination of whether justifiable excuse or excusable neglect existed.

¶ 40 But reversal would only be required if the allegations of ineffective assistance of postconviction counsel contained in Carrico's second Crim. P. 35(c) motion are also adequate to warrant a hearing, which is where I turn next.

B. Carrico Sufficiently Alleged Ineffective Assistance of Postconviction Counsel

¶ 41 Carrico asserts that the postconviction court erred in summarily denying his motion because he failed to state facts supporting the conclusion that postconviction counsel was ineffective and because it found that his claims were successive. I agree.

¶ 42 Carrico alleged that postconviction counsel's performance was deficient because postconviction counsel failed to prove Carrico's claims of newly discovered evidence and ineffective assistance of trial and Carrico I appellate counsel; postconviction counsel failed to argue other instances of ineffective assistance of trial counsel; postconviction counsel failed to communicate an alleged plea offer; and postconviction counsel ignored judicial bias against Carrico.

¶ 43 To prevail on a claim of ineffective assistance of counsel under Crim. P. 35(c), a defendant must show that (1) his attorney's performance was deficient and (2) the attorney's deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). An attorney's performance is deficient if it falls “below an objective standard of reasonableness.” Id. at 688. To prove that such deficient performance prejudiced him, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If the defendant establishes those elements and meets all other requirements under Crim. P. 35(c), the district 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.” Crim. P. 35(c)(3). A defendant requesting postconviction relief under Crim. P. 35(c) may be given a hearing to develop the record on his claims. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). However, a postconviction court may deny a Crim. P. 35(c) motion without an evidentiary hearing “if the motion, files, and record clearly establish that the defendant is not entitled to relief; if the allegations, even if true, don't provide a basis for relief; or if the claims are bare and conclusory in nature and lack supporting factual allegations.” People v. Delgado, 2019 COA 55, ¶ 8.

¶ 44 Crim. P. 35(c)(3)(VI), absent an exception, requires a court to deny “any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant.” Crim. P. 35(c)(3)(VI). Additionally, Crim. P. 35(c)(3)(VII) bars postconviction claims that “could have been presented in an appeal previously brought or postconviction proceeding previously brought.”

¶ 45 Below I address four of Carrico's claims of ineffective assistance of postconviction counsel that I believe would warrant a hearing (if he first establishes justified excuse for the delay in bringing the motion).

1. Postconviction Counsel's Assertion of Newly Discovered Evidence

¶ 46 In the primary postconviction petition, postconviction counsel argued there was new evidence tending to prove an alternate suspect defense. The alternate suspect was the victim's father, and the new evidence consisted of inappropriate photos of the father with his children, testimony from father's wife about father's inappropriate actions with the children, testimony from the victim's mother about father attempting to breastfeed the victim, and witness testimony from an individual who had allegedly been sexually assaulted by father when she was a minor. Postconviction counsel submitted the photos of father with the children as evidence and called only the individual who testified that she had been sexually assaulted by father as a minor. The postconviction court agreed that the evidence was newly discovered, but because postconviction counsel only called the single witness to testify, the postconviction court barred the evidence under CRE 404(b).

¶ 47 In his postconviction motion, Carrico alleges that this was ineffective for the following reasons:

• The postconviction court only considered the evidence as evidence of an alternate suspect because that is how it was presented, and this argument required that the evidence connect the father to the crime.

• This evidence should have been argued to provide an explanation of how the victim formed her allegations against Carrico — i.e., she was frequently naked around her father and her father had been seen acting inappropriately with her.

• Because postconviction counsel failed to call the father's wife as a witness, the postconviction court never heard the testimony from her that she had discovered father and the victim naked in bed together.

• Because postconviction counsel failed to call the victim's mother, the postconviction court never heard the testimony from her that she had discovered father trying to breastfeed the victim on himself.

¶ 48 Carrico's motion states that he was prejudiced by postconviction counsel's performance because counsel failed to prove the majority of Carrico's claims: he failed to call witnesses who could corroborate the evidence, and therefore most of the evidence was never considered by the postconviction court, and the evidence that was considered was presented in such a way that the trial court dismissed it as inadmissible. In my view, Carrico sufficiently alleged that had postconviction counsel presented all of the evidence through witnesses and properly argued its relevance, the court would have ruled differently.

2. Postconviction Counsel's Rape Shield Argument

¶ 49 Carrico alleges that postconviction counsel was ineffective for failing to argue and present facts to show that trial counsel could have overcome the rape shield regarding five separate instances where the victim allegedly made false sexual assault allegations.

¶ 50 Postconviction counsel argued that trial counsel failed to follow the procedures to introduce prior false sexual assault accusations of the victim. When postconviction counsel was afforded a hearing on the rape shield issue, he too, Carrico alleges, failed to follow the procedures to introduce prior false sexual assault accusations of the victim. Carrico alleges postconviction counsel had the opportunity to call three witnesses in order to allow them to explain why trial counsel's investigation would have revealed that the victim's prior accusations were false. Carrico outlines the specifics of the potential witness testimony. However, postconviction counsel did not call any witnesses, and therefore the evidence of the victim's allegedly false accusations was not considered.

¶ 51 Carrico adequately alleged that had postconviction counsel called the corroborating witnesses, the evidence would have overcome the rape shield statute and that the barring of this testimony was detrimental to Carrico's defense.

3. Postconviction Counsel's Misadvisement Argument

¶ 52 Carrico was incarcerated during trial because of a misdemeanor. Trial counsel advised Carrico that the fact that he was incarcerated could be admitted at trial if he chose to testify and, therefore, Carrico elected not to testify. Carrico alleges that this was incorrect advice because his status of being incarcerated was irrelevant and unfairly prejudicial. CRE 401-403. At the postconviction hearing, counsel argued that trial counsel advised Carrico that his prior nonfelony record was admissible. Trial counsel testified that he did not give Carrico this advice, and the postconviction court found there was no prejudice.

¶ 53 Carrico alleges that postconviction counsel's failure to make the correct argument regarding what advice trial counsel gave Carrico and postconviction counsel's failure to call Carrico to testify was prejudicial because, given the correct legal advice, Carrico would have been afforded the opportunity to testify regarding

• his troubled relationship with the victim's mother, adding context to her testimony against him;

• the family dynamic and his proximity to the victim;

• the fact that he was living separately from the family during the timeframe when the alleged assaults occurred; and

• his six-month affair with a friend of the victim's mother.

¶ 54 Additionally, Carrico asserts he would have testified, had postconviction counsel called him, regarding what advice trial counsel gave him — correcting in real time postconviction counsel's incorrect argument.

¶ 55 Carrico adequately alleged, in my view, that postconviction counsel's neglect of his actual allegation and failure to call him to testify was prejudicial because postconviction counsel argued an incorrect version of the claim.

4. Postconviction Counsel's Failure to Call Expert Witnesses

¶ 56 Postconviction counsel argued that trial counsel was ineffective for failing to call expert witnesses that would support an alternate suspect defense. Specifically, the expert could have opined on the science behind “misattribution of perpetrator,” in which the victim's father's sexually inappropriate conduct could have been imputed to Carrico. However, postconviction counsel failed to present any expert witnesses to demonstrate the importance of such testimony. Carrico alleges that had postconviction counsel called an expert witness, the postconviction court would have found that trial counsel's failure to call an expert witness was ineffective assistance of counsel because the postconviction court would have been able to weigh the value and benefit of the expert testimony. This is especially true given, as discussed above, postconviction counsel's failure to call father's wife to testify about father's behavior and activities that she had witnessed involving the victim. In my view, Carrico sufficiently alleged deficient performance and prejudice on behalf of postconviction counsel regarding the expert testimony allegation to warrant a hearing on the issue.

II. Summary

¶ 57 In his forty-six-page motion, Carrico asserted seven (not including sub-claims) claims of ineffective assistance of postconviction counsel. And, for each claim, he included detailed factual allegations, cited the record and legal authority, and organized his discussion clearly. With respect to at least four of Carrico's contentions, ineffectiveness of postconviction counsel was adequately alleged to warrant a hearing.

¶ 58 Accordingly, I would reverse the order denying Carrico's motion for postconviction relief and remand to the postconviction court to make findings of fact and conclusions of law on whether there was justifiable excuse or excusable neglect for the untimely filing of Carrico's motion and, if there was, whether he is entitled to postconviction relief for ineffective assistance of postconviction counsel pursuant to Crim. P. 35(c).

Opinion by JUDGE JOHNSON

Navarro, J., concurs Welling, J., dissents JUDGE NAVARRO concurs. JUDGE WELLING dissents.