People v. Delgado

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 18, 2019

2019COA55

No. 17CA0102, People v. Delgado — Criminal Procedure —
Postconviction Remedies — Conviction Obtained or Sentence
Imposed in Violation of the Constitution; Attorneys and Clients
— Ineffective Assistance of Counsel

A division of the court of appeals addresses whether the

district court erred in summarily denying defendant’s Crim. P. 35(c)

postconviction motion based on ineffective assistance of counsel. In

so doing, the division concludes that two United States Supreme

Court cases, 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. The division reverses the district court’s

order in part and remands the case for a hearing on defendant’s

claim that he received ineffective assistance of counsel because his

attorney incorrectly advised him about his sentencing exposure.
COLORADO COURT OF APPEALS 2019COA55

Court of Appeals No. 17CA0102
Larimer County District Court No. 02CR1285
Honorable Julie Kunce Field, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lupe Delgado,

Defendant-Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur

Announced April 18, 2019

Philip 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.

I. Background

¶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

1
 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. 1 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.

¶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

1Defendant actually faced a maximum sentence of life in prison
pursuant to the Colorado Sex Offender Lifetime Supervision Act of
1998. See § 18-1.3-1004, C.R.S. 2018.

2
 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.

II. Discussion

¶6 We review a summary denial of a Rule 35(c) motion de novo.

People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010).

¶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

3
 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. 35(c)(3).2

¶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 (Colo. App. 2005).

2One such remedy in the plea context includes permitting a
defendant who pleaded guilty after being incorrectly or inadequately
advised about the consequences of accepting a plea deal to
withdraw his guilty plea. See, e.g., People v. Sifuentes, 2017 COA
48M, ¶ 46 (requiring the district court to allow the defendant to
withdraw his guilty plea after he met both Strickland prongs and
proved he received ineffective assistance of counsel during the plea
process). This case involves the situation of a defendant rejecting a
plea offer because of incorrect advice.

4
¶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. 3 We address each in turn.

A. Plea 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

3 We deem abandoned, and won’t address, the seven claims that
defendant raised in his Rule 35(c) motion but didn’t discuss on
appeal. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996)
(the defendant’s “failure to specifically reassert on this appeal all of
the claims which the district court disposed of . . . constitutes a
conscious relinquishment of those claims”); People v. Ortega, 266
P.3d 424, 428 (Colo. App. 2011) (“We also deem abandoned any
additional contentions which [the defendant] raised in his
postconviction motion and which have not been pursued on
appeal.”).

5
 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. 4 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 this claim.

¶ 12 In summarily denying this claim, the district court reasoned

that defendant’s assertions “stretch the limits of credulity and make

4Defendant’s opening brief references counsel’s “failure to
communicate the plea offer.” But the claim he raises on appeal
alleges that the plea offer was communicated. Counsel’s alleged
deficient performance was giving inaccurate advice about
sentencing possibilities.

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 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 Dist. Court, 766 P.2d 632, 635 (Colo. 1988).

1. Ineffective Assistance

¶ 14 Defendant’s claim concerning the ineffective assistance prong

of the Strickland test has two factual predicates: (1) the prosecutor

offered a ten-year determinate sentence after the first trial but

before sentencing and (2) defense counsel told defendant that the

prosecutor’s offer wasn’t favorable because the most he faced was a

fifteen-year determinate sentence.5 The district court summarily

5Defendant also alleges that counsel told him he would win on
appeal. That advice couldn’t have been deficient because defendant
wound up winning on appeal.

7
 rejected the first factual predicate and therefore didn’t address the

second.

¶ 15 The district court’s assumption that the prosecutor wouldn’t

have made the post-verdict, presentence offer alleged by defendant

lacks support in the record. Post-guilty-verdict plea offers aren’t

unheard of. And the prosecutor may have had concerns that the

verdicts wouldn’t hold up on appeal. (As it turns out, any such

concerns would have been well founded.) Moreover, it appears

undisputed that the prosecutor offered an eleven-year determinate

sentence after reversal of the verdicts from the first trial and before

the second trial. Thus, we conclude that the district court erred in

summarily rejecting this part of the factual predicate for defendant’s

ineffective assistance claim.

¶ 16 We turn, then, to the second factual predicate — counsel’s

incorrect advice. If defendant’s attorney told defendant the longest

prison sentence he could get based on the convictions from the first

trial was a determinate sentence of fifteen years, that was incorrect

advice: the aggravated incest conviction required an indeterminate

sentence of at least four years. See §§ 18-1.3-401(1)(a)(V)(A), 18-

1.3-1004(1)(a), 18-6-302, 18-6-303(3), C.R.S. 2002.

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¶ 17 Failure to correctly advise a defendant about his sentencing

exposure deprives the defendant of the opportunity to make a

reasonably informed decision whether to accept or reject an offer

and constitutes deficient performance under Strickland. See

Carmichael, 206 P.3d at 806 (counsel’s failure to tell the defendant

that he faced an indeterminate sentence if he went to trial and lost

was constitutionally deficient performance). We therefore conclude

that the second factual predicate for defendant’s claim can’t be

summarily rejected.

¶ 18 It follows from all this that defendant alleged facts that, if

proved, would entitle him to relief based on ineffective assistance of

counsel.

2. Prejudice

¶ 19 In Carmichael, the supreme court held that to show prejudice

in a rejected plea offer context, the defendant must show a

reasonable probability that he would have accepted the offer if his

counsel had correctly advised him. 206 P.3d at 807. Defendant

alleged that he would have accepted the ten-year determinate plea

offer if his counsel had advised him, correctly, that he faced an

indeterminate sentence. But that isn’t the end of the matter. For

9
 Carmichael also holds that the remedy — indeed, the only remedy

— for ineffective assistance in this context is to order a new trial,

before which the parties can perhaps engage in plea negotiations.

Id. at 809. The court in Carmichael expressly rejected the

suggestion that “an order for a new trial must be supplemented

with a requirement that the prosecution subsequently reinstate the

previous plea offer.” Id. That matters in this case because

defendant already obtained a remand for a new trial: after he

rejected the alleged plea offer, a division of this court reversed his

convictions, putting him in the same position as Carmichael

requires. So it would seem that under Carmichael, defendant

wouldn’t be entitled to any further relief — that is, the taint of any

ineffective assistance has already been removed.

¶ 20 But that isn’t the end of the matter either, for Lafler and Frye,

decided after Carmichael, have much to say about both the required

showing of prejudice in this context and the proper remedy if both

Strickland prongs are met.

¶ 21 Concerning prejudice, the court in Lafler noted that “the

defendant who goes to trial instead of taking a more favorable plea

may be prejudiced from either a conviction on more serious counts

10
 or the imposition of a more severe sentence.” 566 U.S. at 166;

accord id. at 168. To show that such prejudice occurred, a

defendant must demonstrate a reasonable probability not only that

he would have accepted the plea offer, but also that “the

prosecution would not have withdrawn it in light of intervening

circumstances[], that the court would have accepted its terms, and

that the conviction or sentence, or both, under the offer’s terms

would have been less severe than under the judgment and sentence

that in fact were imposed.” Id. at 164; accord Frye, 566 U.S. at 148

(“[D]efendants . . . must also show that, if the prosecution had the

discretion to cancel [the offer] or if the trial court had the discretion

to refuse to accept it, there is a reasonable probability neither the

prosecution nor the trial court would have prevented the offer from

being accepted or implemented.”).

¶ 22 The Court’s more recent pronouncements on prejudice in the

rejected plea context clearly don’t fully align with Carmichael. The

Court requires more from a defendant than does Carmichael —

specifically, that the defendant show a reasonable probability that

the prosecution wouldn’t have withdrawn the offer and that the

court would have accepted it (at least in states where prosecutors

11
 and courts retain such discretion). This matters to us in Colorado

because the prosecution retains the ability to withdraw a plea offer

after it has been accepted, in limited circumstances, see Keller v.

People, 29 P.3d 290, 296 (Colo. 2000) (a prosecutor may withdraw

an accepted offer only if the plea agreement calls for an illegal

sentence or the defendant materially and substantially breaches the

agreement), and the court retains discretion to refuse to accept a

plea agreement, see Crim. P. 11(f)(5).

¶ 23 So we must conclude that Carmichael is no longer good law

with respect to the required showing of prejudice in this context.

See Raile v. People, 148 P.3d 126, 130 n.6 (Colo. 2006) (Colorado

state courts must follow Supreme Court precedent on matters of

federal constitutional law); see also People v. Geisendorfer, 991 P.2d

308, 310-11 (Colo. App. 1999) (holding that prior Colorado Supreme

Court decisions had been overruled by a subsequent United States

Supreme Court decision); Alcorn v. State, 121 So. 3d 419, 422, 429-

30 (Fla. 2013) (Florida Supreme Court acknowledged that its prior

cases addressing the required showing of prejudice in this context

are no longer good law after Lafler and Frye).

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¶ 24 This brings us to the issue of remedy. Recall that the court

held in Carmichael that the only remedy in this circumstance is a

new trial; requiring the prosecution to again offer the same plea

agreement isn’t an option. But in Lafler, the Supreme Court held

that requiring the prosecution to re-offer the same deal is an

option.6 The court addressed two situations in which a defendant

rejected a plea offer based on counsel’s incorrect advice or failure to

communicate the offer to the defendant.

¶ 25 In the first situation, all the defendant lost was the benefit of a

lesser sentence. If that’s the case, “the court may exercise

discretion in determining whether the defendant should receive the

term of imprisonment the government offered in the plea, the

sentence he received at trial, or something in between.” Lafler, 566

U.S. at 171.

6 In analyzing appropriate remedies, the Court was guided by the
principle that the remedy should “‘neutralize the taint’ of [the Sixth
Amendment] violation, while at the same time not grant a windfall
to the defendant or needlessly squander the considerable resources
the State properly invested in the criminal prosecution.” Lafler v.
Cooper, 566 U.S. 156, 170 (2012) (quoting United States v. Morrison,
449 U.S. 361, 365 (1981)).

13
¶ 26 In the second situation, “resentencing alone will not be full

redress for the constitutional injury,” such as when “an offer was

for a guilty plea to a count or counts less serious than the ones for

which a defendant was convicted after trial” or when “a mandatory

sentence confines a judge’s sentencing discretion after trial.” Id. In

such a situation, (1) the prosecution must re-offer the plea

agreement; and (2) if the defendant accepts the offer, the court “can

then exercise its discretion in determining whether to vacate the

convictions and resentence [the defendant] pursuant to the plea

agreement, to vacate only some of the convictions and resentence

[the defendant] accordingly, or to leave the convictions and sentence

from trial undisturbed.” Id. at 174; accord id. at 171.7

¶ 27 By way of providing further guidance, the Court said that in

determining how to exercise discretion in these situations the trial

court may consider the “defendant’s earlier expressed willingness,

or unwillingness, to accept responsibility for his or her actions” and

“any information concerning the crime that was discovered after the

7 The Court’s approval of certain remedies in the context is
obviously at odds with Carmichael. It follows that Carmichael’s
limitation of remedy is no longer good law.

14
plea offer was made.” Id. at 171-72. But the Court expressly left it

open to trial courts to determine how best to exercise their

discretion “in all the circumstances of the case.” Id. at 175. 8

8 In Ebron v. Commissioner of Correction, 53 A.3d 983 (Conn. 2012),
the Connecticut Supreme Court identified “possible tension between
Frye and Lafler” in how those cases treat the court’s potential
acceptance of the plea agreement under the prejudice prong of
Strickland and the remedy for ineffective assistance. Id. at 990-91.
On the one hand, Missouri v. Frye says that if the trial court learned
information after the defendant would have accepted the plea offer
that leads the postconviction court to conclude that it isn’t
reasonably probable the trial court would have accepted the
agreement, the defendant hasn’t shown prejudice. 566 U.S. 134,
148-49 (2012). On the other hand, Lafler says that the
postconviction court may consider such information when
exercising its discretion to impose a remedy. 566 U.S. at 171-72.
So, one might ask, if the postconviction court has decided that any
such information would not have caused the trial court to reject the
plea agreement, why should the postconviction court be allowed to
consider the same information again in deciding on a remedy? See
Ebron, 53 A.3d at 991-92. “[T]o avoid potentially conflicting
findings at the prejudice and remedy stages” of the postconviction
proceeding, the Ebron court harmonized Frye and Lafler by
concluding that at the prejudice stage the defendant need only
establish (in addition to the reasonable probability that he would
have accepted the plea offer, and that the prosecution would not
have withdrawn it) a reasonable probability that the court would
have conditionally accepted the plea agreement. Id. at 992. At the
remedy stage, the postconviction court may consider any
information that came to light after the court would have
conditionally accepted the plea agreement in determining the proper
remedy. Id. at 992-93. In doing this, the Ebron court
acknowledged that it was providing greater protections to
defendants than contemplated by Lafler. Id. at 990 n.7. As an

15
¶ 28 Applying Frye and Lafler to this case, we conclude that

defendant has made sufficient allegations of ineffective assistance

and resulting prejudice to justify a hearing on this claim. 9

¶ 29 On remand, following the hearing, the court should answer

the following questions:

• Did the prosecutor offer defendant a plea agreement

before the first trial? If not, the claim fails. If so, what

were the offer’s terms?

• Were the plea offer’s terms legal? That is, was the plea

offer one the court could have accepted in all its material

terms? If, for example, the agreement called for an illegal

sentence, then defendant does not establish prejudice.

intermediate appellate court, we don’t think it’s our place to take
such an approach.
9 True, though defendant alleged that he would have accepted the

plea offer, he didn’t expressly allege that the prosecution wouldn’t
have withdrawn the offer or that the court would have accepted it.
But those omissions are understandable in light of Carmichael.
And defendant’s motion plainly contemplates the consummation of
a plea agreement. Given that the People don’t argue that
defendant’s motion is deficient on either basis, we decline to hold
defendant to these technical pleading requirements. Going forward,
however, defendants are on notice that such allegations are part of
the pleading burden in the context of a plea offer that the defendant
didn’t accept.

16
 Cf. Rose v. State, 304 P.3d 387, 406 (Mont. 2013) (no

prejudice if the law did not allow the plea offer). This is

so because a court may not impose an illegal sentence,

see People v. Dist. Court, 673 P.2d 991, 995 (Colo. 1983),

and if the plea agreement called for such a sentence, we

must conclusively presume that the court wouldn’t have

accepted it.

• If the plea offer’s terms were legal, is there a reasonable

probability that defendant would have accepted the offer?

If not, the claim fails.

• If so, however, is there a reasonable probability that the

prosecution wouldn’t have withdrawn it, and a

reasonable probability that the court would have

accepted the agreement? If the answer to either is “no,”

the claim fails. If the answer to both is “yes,” defendant

will have established prejudice, and the court should

exercise its discretion to fashion an appropriate remedy.

¶ 30 In determining an appropriate remedy under all the relevant

circumstances, the court should consider whether defendant was

willing or unwilling to accept responsibility for his actions when the

17
 prosecutor first conveyed the offer. See Lafler, 566 U.S. at 171;

State v. Rose, 406 P.3d 443, 450-51 (Mont. 2017) (affirming the trial

court’s decision to leave the convictions and sentence undisturbed

because the defendant wasn’t willing to accept responsibility when

the offer was originally conveyed). The court should also consider

whether there was any “information concerning the crime” or

defendant that came to light after the plea offer was made that

bears on the appropriate remedy. See Lafler, 566 U.S. at 171-72;

Ebron v. Comm’r of Corr., 53 A.3d 983, 993 (Conn. 2012); People v.

Hudson, 95 N.E.3d 1148, 1152-53 (Ill. App. Ct. 2017) (trial court

abused its discretion in declining to give the defendant the full

benefit of the plea offer based on its conclusion that it wouldn’t

have accepted the agreement in light of the defendant’s prior

convictions; trial court’s remedy didn’t “neutralize the taint” of the

constitutional violation).

¶ 31 In the end, provided the court reaches the question of remedy,

the court should ensure that the remedy “‘neutralize[s] the taint’ of

[the] constitutional violation, while at the same time not grant a

windfall to the defendant or needlessly squander the considerable

18
 resources the State properly invested in the criminal prosecution.”

Lafler, 566 U.S. at 170.

B. Advice Not to Testify

¶ 32 Next, defendant contends that the district court erred by

summarily denying his claim that he received ineffective assistance

of counsel when his lawyer advised him not to testify at his second

trial. Specifically, he alleges that, before his second trial, his

attorney told him that he would once again succeed on appeal, so

he didn’t need to testify in his own defense, and that he wanted to

testify but relied on his attorney’s advice and didn’t take the stand.

This prejudiced him, he argues, because he “couldn’t explain the

incriminating statements, confessions, or admissions” that he had

made. The district court ruled that, although defendant’s

allegations met the performance prong of Strickland, they failed to

meet the prejudice prong.

¶ 33 We agree with the district court and conclude that, based on

these allegations, defendant wasn’t entitled to a hearing on this

claim. To meet the second Strickland prong, a defendant must

show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

19
 different.” Strickland, 466 U.S. at 694. A defendant doesn’t have to

set forth detailed evidentiary support for the allegations in his Rule

35(c) motion, White, 766 P.2d at 635, but if his claims are merely

conclusory in nature and lack supporting factual allegations, the

court may deny them without a hearing. Venzor, 121 P.3d at 262.

¶ 34 Such is the case here. Defendant didn’t make any allegations

showing a reasonable probability that the outcome would have been

different if he had testified. He didn’t indicate what he would have

said to the jurors and how that testimony would have influenced

their decision. Nor did he say that he would make any such

showing if granted a hearing. So the district court didn’t err by

summarily denying this claim.

C. Failure to Investigate the Victim’s History of Being Abused

¶ 35 Lastly, defendant contends that the district court should have

held a hearing on his claim that his attorney provided ineffective

assistance of counsel by not investigating the case thoroughly.

Specifically, he alleges that, because of his attorney’s failure to

20
 investigate the victim’s history of abuse by others, 10 he wasn’t able

to provide the jury with context for his incriminating statements to

the victim and couldn’t strategically attack her allegations. The

district court ruled that defendant had failed to make a sufficient

showing on either Strickland prong, reasoning that defense

counsel’s choice of how aggressively to challenge a victim’s

reliability is a matter of trial strategy. See People v. Bergerud, 223

P.3d 686, 693 (Colo. 2010) (“On issues of trial strategy, defense

counsel is ‘captain of the ship.’” (quoting Arko v. People, 183 P.3d

555, 558 (Colo. 2008))).

¶ 36 We agree with the district court that defendant wasn’t entitled

to a hearing on this claim, albeit for slightly different reasons.

Defendant made only vague assertions that “had trial counsel

properly investigated the accusations [of sexual abuse by others],

there is a reasonable probability that the outcome of the case would

have been different.” He claims that he could have used the results

of the investigation to attack the legitimacy of the victim’s

10 Defendant’s motion identifies other areas that his attorney failed
to adequately investigate, but he mentions only the victim’s “history
of abuse” on appeal.

21
 allegations, but he doesn’t explain how, even if his attorney had

investigated the victim’s other abusers, that information would have

been admissible at trial. Because of Colorado’s rape shield law, it

would have been difficult, if not impossible, to introduce such

evidence. See § 18-3-407, C.R.S. 2018 (at trial, subject to few

exceptions, evidence of a victim’s prior or subsequent sexual

conduct is presumed irrelevant). His motion doesn’t allege any

facts indicating that some exception to the law would have applied.

¶ 37 Nor did defendant explain what this history involved or how it

would have impacted the case, if admitted. Again, conclusory

statements, without supporting factual allegations, aren’t enough.

Venzor, 121 P.3d at 262. The district court properly denied this

claim.

III. Conclusion

¶ 38 We reverse that portion of the district court’s order summarily

denying defendant’s claim that he received ineffective assistance of

counsel because his attorney incorrectly advised him about his

sentencing exposure, and we remand for a hearing on that claim.

In all other respects, we affirm the order.

JUDGE TERRY and JUDGE GROVE concur.

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