Larimer County District Court No. 02CR1285 Honorable Julie
Kunce Field, Judge.
J. Weiser, Attorney General, Carmen Moraleda, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Katayoun A. Donnelly, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
1 Defendant, Lupe Delgado, appeals the district court's
order summarily denying his Crim. P. 35(c) motion based on
ineffective assistance of counsel. We reverse the order in
part and remand the case for a hearing on defendant's
claim that his attorney incorrectly advised him about his
sentencing exposure, leading him to reject a favorable plea
offer. In so deciding, we conclude that the United States
Supreme Court's decisions in Lafler v. Cooper,
566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S.
134 (2012), overruled the Colorado Supreme Court's
decision in Carmichael v. People, 206 P.3d 800
(Colo. 2009), on two points: (1) the test for showing
prejudice where an attorney incorrectly advises a defendant
in plea negotiations, resulting in the defendant rejecting a
plea offer; and (2) the remedies available where a defendant
in these circumstances shows both ineffective assistance and
prejudice. Otherwise, we affirm.
2 In 2002, the People charged defendant with aggravated
incest and three counts of sexual assault on a child by one
in a position of trust. He hired a private attorney to
represent him in that case, but that attorney withdrew
several months before trial. Defendant couldn't pay
another private attorney but didn't qualify for a public
defender. Although he repeatedly said that he wasn't
qualified to represent himself and didn't want to proceed
pro se, he went to trial without an attorney. A jury
convicted him of all charges.
3 The court appointed a public defender to represent
defendant for sentencing. According to defendant's Rule
35(c) motion, the attorney told him that the prosecutor had
offered a fixed, ten-year sentence to the custody of the
Department of Corrections (DOC), but the offer wasn't
favorable since the maximum prison term he could get was
fifteen years. Relying on this advice, defendant rejected
the offer. The court sentenced him to an indeterminate
fifteen years to life sentence for aggravated incest and
concurrent fifteen-year sentences on the other charges. He
4 A division of this court reversed, holding that
defendant's waiver of counsel was not knowing, voluntary,
and intelligent. A new trial ensued, after which a jury once
again convicted defendant of all charges. The court again
sentenced defendant to an aggregate term of fifteen years to
life in DOC custody. He unsuccessfully appealed.
5 Defendant later filed a Crim. P. 35(c) motion, asserting
ten claims of ineffective assistance of counsel and
requesting a hearing on those claims. The district court
denied the motion without a hearing.
6 We review a summary denial of a Rule 35(c) motion de novo.
People v. Gardner, 250 P.3d 1262, 1266 (Colo.App.
7 To prevail on a claim of ineffective assistance of counsel
under Rule 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); Dunlap v. People, 173 P.3d 1054, 1062 (Colo.
2007). An attorney's performance is deficient if it falls
"below an objective standard of reasonableness."
Strickland, 466 U.S. 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 Rule 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.
8 A defendant requesting postconviction relief under Rule
35(c) may be given a hearing to develop the record on his
claims. See § 18-1-401, C.R.S. 2018;
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). But
a court may deny the motion without a 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. Venzor, 121 P.3d 260, 262
9 Defendant appeals the district court's summary denial
of three of his claims: (1) counsel failed to correctly
advise him about the possible sentence after the first trial;
(2) counsel gave him unsound advice that he shouldn't
testify in the second trial since he was guaranteed to
succeed on appeal; and (3) counsel failed to investigate an
aspect of the victim's past. We address each in turn.
Offer and Sentencing Advice
10 Defendant alleges that, after his first trial, but before
sentencing, the prosecutor extended a "plea deal"
of a determinate ten-year sentence to DOC custody. His public
defender, who had been appointed to represent him at
sentencing, told him of the offer but advised him that it
wasn't favorable because the maximum prison sentence he
could receive was fifteen years. Relying on this advice,
defendant declined the offer. He subsequently received an
indeterminate sentence of fifteen years to life in DOC
custody on the aggravated incest count. Although he
successfully appealed his convictions, the district court
again imposed an indeterminate sentence of fifteen years to
life on the aggravated incest count after the second trial.
11 Defendant asserts in his Rule 35(c) motion (and reasserts
on appeal) that his attorney's incorrect advice regarding
his sentencing exposure constituted ineffective assistance of
counsel. He claims that, had he been granted a
hearing, he would have presented evidence that, but for his
attorney's erroneous advice, he would have accepted the
offer of a determinate ten-year sentence. We agree with
defendant that the district court should hold a hearing on
12 In summarily denying this claim, the district court
reasoned that defendant's assertions "stretch the
limits of credulity and make no sense." Because the
court didn't think it rational that the prosecutor would
offer defendant a ten-year determinate sentence after the
first trial had resulted in convictions, and didn't
understand how defendant's decision to reject such an
offer would impact him after the case was reversed on appeal,
the court ruled that his claim lacked legal or factual merit.
13 But we conclude that defendant asserted facts that, if
true, would provide a basis for relief under Rule 35(c).
See White v.Denver ...