Peo v. Bobian

── Peo v. Bobian ── Court: Colorado Court of Appeals Date: May 07, 2026 Category: General 24CA1327 Peo v Bobian 05-07-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1327 El Paso County District Court No. 14CR1322 Honorable Jessica Curtis, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Michael Conrad Bobian, Defendant-Appellant. ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS Division II Opinion by JUDGE KUHN Fox, J., concurs Sullivan, J., concurs in part and dissents in part NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026 Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Janet Kinniry, Alternate Defense Counsel, Gardner, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Conrad Bobian, appeals the postconviction court’s order denying his Crim. P. 35(c) motion for postconviction relief after an evidentiary hearing. We affirm in part, reverse in part, and remand the case for further proceedings. I. Background ¶2 T.D. gave her two children, four-year-old P.D. and six-year-old C.D., to Bobian for an overnight visit. When Bobian did not return the children, T.D. spoke with Bobian. He said that he was not bringing the children back because P.D. had been touched inappropriately. T.D. contacted the police, who obtained and executed an arrest warrant at Bobian’s home, where officers found the children unharmed. ¶3 The prosecution charged Bobian with two counts of second degree kidnapping, one for each child. See § 18-3-302(2), C.R.S. 2025. The prosecution later amended the complaint to add three habitual criminal counts for prior felony convictions. See § 18-1.3-801(2), C.R.S. 2025. Bobian pleaded not guilty and proceeded to a jury trial. ¶4 Bobian asked the trial court to instruct the jury on a choice of evils affirmative defense, asserting that P.D. had alleged sexual 1  abuse by T.D.’s boyfriend and that Bobian had not returned the children because he was concerned about their safety. See § 18-1-702, C.R.S. 2025 (defining the choice of evils affirmative defense). The court agreed to give a choice of evils instruction with respect to P.D., but it declined to give one regarding C.D. because C.D. had not alleged any sexual abuse. After hearing the evidence, the jury acquitted Bobian on the charge of kidnapping P.D., but it found him guilty of kidnapping C.D. The court then adjudicated Bobian a habitual criminal and, after conducting an abbreviated proportionality review, sentenced him to twenty-four years in prison. ¶5 Bobian appealed and asserted, among other things, that the trial court erred by denying him an extended proportionality review of his sentence. A division of this court rejected his appellate contentions, affirming the judgment and sentence. See People v. Bobian, (Colo. App. No. 16CA1999, Nov. 7, 2019) (not published pursuant to C.A.R. 35(e)). ¶6 Bobian then filed a timely pro se Rule 35(c) motion. The postconviction court appointed counsel for Bobian, and counsel 2  filed a supplemental motion. After holding an evidentiary hearing, the court denied Bobian’s Rule 35(c) claims in a written order. II. Analysis ¶7 Bobian contends that the postconviction court erred when it denied his Rule 35(c) motion. Specifically, he asserts that the postconviction court erred by not (1) granting him a new proportionality review or finding that his appellate counsel should have raised new supreme court precedent as part of his appeal; (2) finding that his counsel was ineffective for failing to convey a plea offer to him; and (3) finding