Former Mesa County clerk Tina Peters seems poised to walk away from the state’s Court of Appeals with her criminal convictions largely intact, even as a three-judge appellate panel raised concerns about her sentence and one specific conviction.

Peters, a Republican who served one term following her 2018 election, is serving a roughly nine-year prison sentence for a mixture of felony and misdemeanor offenses related to a security breach of her office’s voting equipment. Broadly, jurors found that Peters had used deception to enable unauthorized access to a “trusted build” update of her county’s election software, and that videos and images from the update were later posted online.

During an unusually long oral argument session on Wednesday, an interesting dynamic emerged. While the appellate judges were highly skeptical and even confused about Peters’ broad arguments that she had no criminal liability, their targeted questioning of the prosecution suggested that Peters may ultimately prevail on a handful of issues.

Doing her duty?

Peters’ leading argument is that, as clerk, she had a duty under federal law to preserve election records for 22 months, and the 2021 software update would have wiped away that information and caused her to violate the law. In essence, federal law gave her immunity.

Yet, puzzlingly, Peters’ attorneys argued the state trial judge had “no jurisdiction to decide” whether federal immunity applied.

“Who decides if she is right?” wondered Judge Craig R. Welling. “The problem with your argument is if you’re right, then we can’t decide it, and the convictions just stand.”

The judges also struggled to understand how, exactly, Peters was compelled to act under federal law when it was undisputed that she made a forensic copy of the records beforehand, which was not the basis of her convictions.

“If she just executed a duty but didn’t commit a crime, we wouldn’t be here,” said Welling. “The immunity is: you were doing something the federal statute said you had to do. And doing that, you violated state law.”

Jury instructions, sentencing

Peters gained more traction with the panel on narrower issues. For instance, she stands convicted of a felony count for conspiracy to commit criminal impersonation with an accompanying 15-month sentence, even though the jury instructions and indictment recited the language from the less-severe misdemeanor offense.

“Is it your position that a person can still be convicted of a crime with which they were never charged and with which the jury was never instructed, as long as the evidence is sufficient?” Judge Ted C. Tow III asked the Colorado Attorney General’s Office.

“I am baffled as to the position that’s being taken that somehow we can overlook that,” added Welling.

The panel was also receptive to the idea that District Court Judge Matthew D. Barrett, in sentencing Peters, relied on uncharged conduct or her First Amendment-protected views regarding election security when imposing her sentence. The panel pointed to inflammatory words like “charlatan” and “peddl(ing) a snake oil” that Barrett used to describe her.

“He can’t sentence her more because he doesn’t agree with what she’s saying,” said Tow.

Yet, the judges acknowledged that Peters presented a slideshow of other evidence at her sentencing that Barrett was responding to.

“Are you saying the court couldn’t address the slideshow presentation?” asked Judge Lino S. Lipinsky de Orlov.

He could, replied Peters’ attorney, John Case. But Barrett “couldn’t sentence her for it.”

If the panel does order a resentencing for some or all of Peters’ convictions, Case requested a judge other than Barrett handle it.

Other context

Since President Donald Trump returned to office, Peters’ criminal case has taken on outsize visibility. Last year, the U.S. Department of Justice asserted its interest in Peters’ attempt to be released on bond while her appeal proceeded, an unprecedented and ultimately unsuccessful move.

Then, in late 2025, Trump attempted to issue a pardon for Peters’ state convictions. Peters and the state both submitted briefs on the issue of the pardon’s validity, but it did not surface at oral arguments.

Although Peters’ attorneys maintained the constitutional power to pardon offenses “against the United States” necessarily includes state crimes, the attorney general’s office cited a 1925 decision of the U.S. Supreme Court drawing a line between “offenses against the United States, as distinguished from offenses against the States.”

Meanwhile, Gov. Jared Polis appears to be considering releasing Peters from prison before her parole eligibility date in three years. The day before the arguments, Secretary of State Jena Griswold and the county clerks’ association reiterated their opposition to such a move.