County District Court No. 11CR961 Honorable Christopher J.
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
Scott Phipps, Pro Se
1 Based on a plea agreement in which many other serious
charges were dismissed, defendant, Randy Scott Phipps,
pleaded guilty to sexual assault on a child. He was sentenced
to an indeterminate prison term of seventeen years to life.
Phipps then sought postconviction relief under Crim. P.
35(c), claiming ineffective assistance of counsel. The
district court denied his motion without holding a
2 Phipps asserts on appeal that the district court (1) was
required to hold a hearing on his motion and (2) erred in
rejecting his ineffective assistance of counsel claims. We
affirm the district court's order because Phipps'
allegations were bare and conclusory in nature, directly
refuted by the record, and, even if proven true, would have
failed to establish one of the prongs of the test prescribed
in Strickland v. Washington, 466 U.S. 668 (1984).
Relevant Facts and Procedural History
3 During an investigation to detect child pornography shared
over the Internet, the police remotely searched a computer
onto which at least two files depicting child pornography had
been downloaded. Using that computer's Internet Protocol
(IP) address, the police determined that the computer was
located in Phipps' home. The police obtained and executed
a search warrant of Phipps' home.
4 Phipps was not home at the time of the search, but an
officer spoke with him on the phone during the search and
explained why his home was being searched. During that
recorded phone call, Phipps admitted that he stored child
pornography on his computer and that once the officer
searched his computer, "his life was over." The
police seized Phipps' computer, on which they found over
thirty videos of children engaged in sexual acts.
5 One of these videos depicted Phipps' stepdaughter when
she was approximately eight or nine years old. She was mostly
nude, and the video showed Phipps instructing her to use sex
toys as well as Phipps using sex toys on her. In her police
interview, Phipps' stepdaughter identified herself and
Phipps in the video and stated that Phipps had sexually
assaulted her numerous times.
6 Phipps was charged with sexual assault on a child (position
of trust - pattern of abuse) under sections 18-3-405.3(1),
(2)(b), C.R.S. 2016; aggravated incest under section
18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child
(inducement) under section 18-6-403(3)(a), C.R.S. 2016; and
sexual exploitation of children (possession) under section
18-6-403(3)(b.5). The court found Phipps indigent and
appointed counsel to represent him. ¶ 7 A plea agreement
was negotiated and Phipps pleaded guilty to the sexual
assault charge. In exchange, the district attorney dismissed
the remaining charges and promised that the United States
Attorney would not prosecute Phipps on child pornography
8 At the sentencing hearing, Phipps took full responsibility
for his crimes. He stated that he did not wish to put his
family through a "horrific ordeal with a jury trial,
" and that his "remorse, regrets, shame, despair,
sadness, and sorrow cannot be measured."
9 In his motion for postconviction relief, Phipps made
numerous claims of ineffective assistance of counsel. The
arguments Phipps renews on appeal are:
• His counsel failed to challenge the legality of the
initial, remote search of Phipps' computer, which
violated his Fourth Amendment rights.
• His counsel's decision to waive the preliminary
hearing constituted deficient performance.
• His counsel's failure to request a bond reduction
constituted deficient performance.
• His counsel's failure to investigate and challenge
the prosecution's forensic computer evidence or hire an
expert to do so constituted deficient performance.
• His counsel failed to advise him that, as a condition
of his parole eligibility, he might be required to reveal
past crimes, exposing him to additional criminal charges.
• His counsel failed to advise him that evidence of his
crimes might be destroyed after he pleaded guilty.
• His counsel failed to advise him that he might be
ordered to pay restitution to his stepdaughter.
• His counsel misadvised him about the minimum amount of
prison time he would have to serve before being eligible for
• His counsel misled him with regard to whether he was
pleading guilty to a crime of violence.
district court did not hold a hearing, but concluded that the
existing record demonstrated that Phipps' claims failed
one or both prongs of Strickland.
10 In this court, Phipps repeatedly purports to incorporate
arguments made in his Crim. P. 35(c) motion.
Phipps' attempt to incorporate the arguments he made in
the district court violates C.A.R. 28(a)(7)(B), which
requires appellants to state their "contentions and
reasoning, with citations to the authorities and parts of the
record on which the appellant relies."
"Incorporating by reference or adopting by reference
arguments from previous filings is improper because it
attempts to shift, from the litigant to the court, the task
of locating and synthesizing the relevant facts and
arguments." People v. Duran, 2015 COA 141,
¶ 20. Such incorporations by reference also circumvent
C.A.R. 28(g), which limits the length of briefs. See
Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.App.
12 Phipps' failure to specifically reassert those
arguments in this court constitutes a waiver of those claims.
People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996).
Accordingly, we do not ...