Peo v. Galloway - Affirmation of Order on Prosecution Costs

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Galloway

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA1839

• Precedential Status: Non-Precedential

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.7K)

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Combined Opinion

24CA1839 Peo v Galloway 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1839
El Paso County District Court No. 16CR2749
Honorable Gregory R. Werner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Glen Law Galloway,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Glen Law Galloway, Pro Se
¶1 Defendant, Glen Law Galloway, appeals the district court’s

order denying his postconviction motion to vacate the order

requiring him to pay the costs of his prosecution. We affirm, albeit

on different grounds than those relied on by the district court. See

People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (noting that

appellate court may affirm district court order on different grounds).

I. Background

¶2 Galloway was convicted of first degree murder after

deliberation, among other offenses, and the prosecution sought the

death penalty. In the first phase of the death penalty proceedings,

the jury found that the prosecution had proved three of the four

alleged aggravating factors beyond a reasonable doubt. But in the

second phase, the jury did not find beyond a reasonable doubt that

the mitigating factors did not outweigh the aggravating factors, thus

precluding imposition of the death penalty. At Galloway’s request,

the court immediately sentenced him to the statutorily mandated

sentence of life in prison without the possibility of parole.

¶3 Approximately two and a half months later, the prosecution

filed a motion for reimbursement of prosecution costs. Galloway

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did not object, and the district court granted the prosecution’s

motion, ordering Galloway to pay approximately $133,000 in total.

¶4 Galloway challenged the order assessing prosecution costs in

his direct appeal, arguing that the district court erred by including

costs related to the capital sentencing proceedings even though the

jury rejected the death penalty. As relevant to this case, a division

of this court concluded that because costs of prosecution are not

part of a sentence, Galloway’s challenge to the cost order was not

an illegal sentence claim under Crim. P. 35(a). People v. Galloway,

slip. op. at ¶¶ 126, 128 (Colo. App. No. 18CA1580, Feb. 16, 2023)

(not published pursuant to C.A.R. 35(e)) (citing People v. Howell, 64

P.3d 894, 899-900 (Colo. App. 2002)). And because Galloway did

not object to the motion for costs of prosecution, the division

reviewed Galloway’s contentions for plain error and concluded that

any error regarding the costs of prosecution was not obvious and

therefore did not constitute plain error. Galloway, ¶¶ 128, 130.

¶5 Galloway then filed a motion to vacate the cost order under

Crim. P. 35(a), characterizing his claim as one to correct a sentence

imposed in an illegal manner. He argued that the district court

(1) lacked jurisdiction to impose the costs of prosecution after

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entering the judgment of conviction and (2) erred by failing to excise

the costs allocable to the death penalty phase of the proceeding

when Galloway had been “acquitted” of the death penalty.

¶6 The district court denied the motion. It explained that

Galloway’s legal argument that the order for costs must be entered

at the same time as the judgment of conviction had been rejected in

People v. Scroggins, 240 P.3d 331, 333 (Colo. App. 2009), and that

Galloway did not cite any authority indicating that the failure to do

so deprived the court of jurisdiction to do so later. The court also

rejected Galloway’s premise that the jury had “acquitted” him of the

death penalty because the death penalty is a sentence, not a crime.

II. Analysis

¶7 Galloway argues on appeal, as he did in his direct appeal and

his postconviction motion, that (1) the district court lacked

jurisdiction to assess the costs of prosecution after entering the

judgment of conviction, and (2) the court erred by not reducing the

assessed costs by the amount allocable to the death penalty phase

of the proceeding because he was “acquitted” of the death penalty.

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¶8 Because we conclude that Galloway’s claim is not cognizable

under Crim. P. 35(a) and would be successive as a Crim. P. 35(c)

claim, the district court did not err by denying the motion.

A. Standard of Review and Applicable Law

¶9 We review de novo the denial of a postconviction motion

without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

¶ 10 The substance of a postconviction motion controls whether it

falls under Crim. P. 35(a) or Crim. P. 35(c). People v. Collier, 151

P.3d 668, 670 (Colo. App. 2006). As relevant in this case, Crim.

P. 35(a) allows a court to correct a sentence imposed in an illegal

manner — that is, when the district court “ignores essential

procedural rights or statutory considerations in forming the

sentence.” People v. Tennyson, 2025 CO 31, ¶ 29 (citation omitted).

A claim arises under Crim. P. 35(c) when, among other things, the

defendant asserts “[a]ny grounds otherwise properly the basis for

collateral attack upon a criminal judgment.” Crim. P. 35(c)(2)(VI).

B. Galloway’s Claim Is Not a Crim. P. 35(a) Illegal Manner Claim

¶ 11 Galloway characterizes his claim as a Crim. P. 35(a) claim that

his sentence was imposed in an illegal manner. We disagree.

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¶ 12 Costs of prosecution are not part of a defendant’s sentence.

See People v. Cichuniec, 2025 COA 33, ¶ 29; Howell, 64 P.3d at 899 -

1. Rather, costs are “primarily a civil sanction.” Howell, 64 P.3d

at 900; see also § 18-1.3-701(1), C.R.S. 2025 (providing that

judgment for costs “are enforceable in the same manner as are civil

judgments”). Indeed, the division in Galloway’s direct appeal so

held, concluding that because prosecution costs are not part of the

sentence, Galloway’s challenge to those costs was not an illegal

sentence claim that could be raised at any time. Galloway, ¶ 128.

¶ 13 By the same reasoning, because costs of prosecution are not

part of a defendant’s sentence, a postconviction challenge to the

imposition of such costs is not a challenge to the manner in which a

sentence is imposed. Thus, we conclude that Galloway’s claims are

not properly construed as Crim. P. 35(a) illegal manner claims.

C. As Crim. P. 35(c) Claims, Galloway’s Claims Are Successive

¶ 14 Although costs of prosecution are not part of the sentence,

Crim. P. 32(b)(3)(I) provides that the “judgment of conviction”

includes “costs, if any are assessed against the defendant.” And as

noted above, Crim. P. 35(c)(2)(VI) allows a defendant to assert

grounds for “collateral attack upon a criminal judgment.”

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¶ 15 But even assuming that Galloway’s claim could be cognizable

under Crim. P. 35(c) — a point we do not decide — the court must

deny a Crim. P. 35(c) claim that was raised and resolved in a prior

appeal or that could have been presented in a prior appeal (subject

to exceptions not applicable here). Crim. P. 35(c)(3)(VI), (VII).

¶ 16 Galloway’s challenge to the imposition of prosecution costs

was raised and resolved in his direct appeal. In rejecting that

challenge, the division concluded that (1) “there are no time limits

for assessing costs,” and (2) the district court did not reversibly err

by assessing costs associated with the death penalty phase of the

proceeding. Galloway, ¶¶ 127, 130. And to the extent Galloway did

not specifically argue in his direct appeal that the district court

lacked jurisdiction to impose costs after entering the judgment of

conviction, he could have. See Crim. P. 35(c)(3)(VII).1

1 Crim. P. 35(c)(3)(VII) includes an exception for “[a]ny claim that

the sentencing court lacked subject matter jurisdiction.” (Emphasis
added.) But as noted above, costs are not part of the sentence. See
People v. Cichuniec, 2025 COA 33, ¶ 29. In any event, even if this
claim were not successive, it would fail on the merits because costs
need not be assessed at the time of the conviction and sentence.
See People v. Scoggins, 240 P.3d 331, 333 (Colo. App. 2009).

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¶ 17 Thus, construed as a Crim. P. 35(c) claim, Galloway’s claim

was required to be denied as successive.

III. Disposition

¶ 18 The order is affirmed.

JUDGE GROVE and JUDGE YUN concur.

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