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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
A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for
Defendant, Lupe Delgado, appeals the district courts 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 defendants 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 Courts decisions in Lafler v. Cooper, 566
U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and
Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182
L.Ed.2d 379 (2012), overruled the Colorado Supreme Courts
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.
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 couldnt pay another private attorney
but didnt qualify for a public defender. Although he
repeatedly said that he wasnt qualified to represent himself
and didnt want to proceed pro se, he went to trial without
an attorney. A jury convicted him of all charges.
The court appointed a public defender to represent defendant
for sentencing. According to defendants 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 wasnt 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 appealed.
A division of this court reversed, holding that defendants
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.
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.
We review a summary denial of a Rule 35(c) motion de novo.
People v. Gardner, 250 P.3d 1262, 1266 (Colo.App.
To prevail on a claim of ineffective assistance of counsel
under Rule 35(c), a defendant must show that (1) his
attorneys performance was deficient and (2) the attorneys
deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88, 694,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Dunlap v.
People, 173 P.3d 1054, 1062 (Colo. 2007). An attorneys
performance is deficient if it falls "below an objective
standard of reasonableness." Strickland, 466
U.S. at 688, 104 S.Ct. 2052. To prove that such deficient
performance prejudiced him, the defendant must show "a
reasonable probability that, but for counsels unprofessional
errors, the result of the proceeding would have been
different." Id. at 694, 104 S.Ct. 2052. 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.
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, dont 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 (Colo.App. 2005).
Defendant appeals the district courts summary denial of
three of his claims: (1) counsel failed to correctly advise
him about ...