[Copyrighted Material Omitted]
County District Court No. 11CR1307. Honorable Ted C. Tow,
Young, District Attorney, Michael Whitney, Deputy District
Attorney, Brighton, Colorado, for Plaintiff-Appellant.
Mallika L. Magner, Alternate Defense Counsel, Crested Butte,
Colorado, for Defendant-Appellee.
and Rothenberg[*] , JJ., concur.
The People appeal the postconviction court's order
granting the Crim. P. 35(c)(2) motion of defendant, Harley
David Sharp, and ordering a new trial. We reverse and remand
with instructions to reinstate the judgment of conviction and
the sentence imposed. We first conclude that defendant
didn't establish prejudice resulting from his trial
attorney's failure to investigate. And we conclude that
to establish ineffective assistance of trial counsel where
counsel failed to move for a new trial, a defendant must
demonstrate a reasonable probability that the court would
have granted the motion. Prejudice can't be presumed in
this situation, and in this case, defendant didn't
establish a reasonable probability that a motion for a new
trial would have been granted.
[¶2] The People charged defendant with
sexually assaulting his daughter between 2008 and 2010 when
she was between two and five years old. The victim's
great aunt had reported the assaults to the department of
social services after the victim confided in her and
spontaneously engaged in aggressive sexual behavior in late
[¶3] At trial, the victim struggled to
remember details. But she testified that her father had
touched her buttocks, touched and licked her vagina, and had
her touch his penis. The victim's mother testified that
one night she woke up and saw defendant touching the
victim's vagina while also touching himself. She told
defendant to stop, but she didn't report the
incident. A sexual assault nurse examiner (SANE)
who examined the victim shortly after the victim's great
aunt reported the assaults testified that she didn't find
any physical trauma. But according to the SANE, that was a
fairly typical result for the type of contact the victim and
her mother accused defendant of engaging in. (The SANE had
been told the victim hadn't had any contact with her
father for at least two months.) She also said that only
about four percent of the children she has examined for
evidence of sexual assault showed any physical trauma.
[¶4] A jury found defendant guilty of sexual
assault on a child, sexual assault on a child as a pattern of
abuse, and sexual assault on a child by one in a position of
At defendant's sentencing hearing, R.H., a cousin of the
victim's mother, spoke with defense counsel's
investigator and made some new allegations. R.H. said that
the victim had asked her " what would happen if I
lied?" — a statement R.H. assumed meant the victim
was lying about her father assaulting her. R.H. also told the
investigator that, in 2010, the victim's grandmother had
offered to pay R.H. to make false allegations of sexual
assault against the grandmother's husband (or ex-husband)
to get " revenge" against him for refusing to pay
rent to her. Defense counsel didn't move for a new trial
based on R.H.'s allegations.
[¶6] A division of this court affirmed
defendant's convictions on direct appeal. People v.
Sharp, (Colo.App. No. 13CA1761, June 11, 2015) (not
published pursuant to C.A.R. 35(f) ).
[¶7] Defendant filed a pro se motion
(followed shortly thereafter by a supplemental motion from
newly appointed postconviction defense counsel) for
postconviction relief under Crim. P. 35(c) . He sought a new
trial based on newly discovered evidence (see Crim. P.
35(c)(2)(V) ) — specifically, the information R.H. had
given the investigator — and alleged that his trial
counsel had been ineffective in a variety of ways (see Crim.
P. 35(c)(2)(I) ). As now relevant, defendant alleged that his
trial counsel provided ineffective assistance by failing to
investigate potential witnesses (one of whom was R.H.) and by
failing to move for a new trial under Crim. P. 33 after R.H.
came forward with new information.
[¶8] The postconviction court held an
evidentiary hearing on the motion. Defendant testified that
in late 2007 or early 2008, the grandmother picked up the
victim from the babysitter and took her home to defendant.
The grandmother told him that she had seen inflammation and
green discharge on the victim's vaginal area after
picking her up. He said that he " flipped" and took
the victim to the hospital, where a doctor examined her and
didn't find any inflammation or green discharge. He said
he told trial counsel about the incident before trial, but
counsel failed to investigate further or to seek information
from the hospital where the victim had been examined. R.H.
testified about her conversations with the victim, the
grandmother, and the defense investigator.
[¶9] The postconviction court rejected many
of defendant's claims, but found merit in two. First, it
found trial counsel's failure to investigate
defendant's assertion that he had taken the victim to a
hospital to be examined during the same period he was
allegedly assaulting her was ineffective assistance that
prejudiced defendant. On this basis, the court vacated
defendant's convictions and ordered a new trial. Second,
it found that trial counsel's failure to move for a new
trial after R.H. came forward was ineffective assistance. The
court said it did not need to determine whether such a motion
would have been successful, reasoning that the failure to
move for a new trial is like a failure to perfect an appeal,
a circumstance in which the loss of the appellate proceeding
constitutes the required prejudice. So the remedy for a
failure to move for a new trial, the court said, would be to
restore defendant's opportunity to seek a new
[¶10] The People challenge both of the
postconviction court's bases for finding ineffective