dissenting.
The majority concludes that Close has stated a colorable claim of ineffective assistance of counsel based on the fact that the Chief Appellate Deputy Public Defender, who represented Close before this court in an appeal of a previous Rule 35(c) motion, failed to call our attention to People v. Nguyen, 900 P.2d 37 (Colo.1995)-a decision that the majority says is "applicable to Close's [case]." Maj. op. at 1022. The majority remands the case for appointment of conflict-free counsel and a hearing, and concludes that it is "like[ly] that it will be necessary [for the trial court on remand] to resentence Close." Id. at 1022 n. 6.
In my view, the majority makes a fundamental error by finding Nguyen to be "applicable" to Close's case. It bases its conclusion on the fact that Close and the defendant in Nguyen were sentenced under the same statute. Maj. op. at 1021. Yet the majority performs no serious analysis of the sentencing statute at issue, and therefore misses the fact that it covered both completed second degree assault and attempted second degree assault. It was only the defendant's convictions for attempted assault that we found problematic in Nguyen. Because Close was convicted of completed, not attempted, assault, Nguyen is not applicable here. Close's *1023counsel failed to make an equal protection argument based on Nguyen not because she was ineffective, as the majority holds, but because Nguyen is not applicable to Close's case. Because the majority finds otherwise, I respectfully dissent from the majority's opinion.
I.
The majority does not dispute the fact that Close's Rule 85(c) claim is time-barred, as it clearly is.7 Thus the question is whether this bar can be lifted on grounds of justifiable excuse or excusable neglect, see § 16-5-402(2)(d), C.R.S. (2007), which may include ineffective assistance of post-conviction counsel. See, eg., Silva v. People, 156 P.3d 1164 (Colo.2007). The majority holds that Close has stated facts that are sufficient to support a finding of ineffective assistance of post-conviction counsel "as a matter of law," and orders the appointment of conflict-free counsel to investigate his claim. Maj. op. at 1022. Yet it bases this conclusion on the slimmest of showings: namely, that Close was sentenced under the same statute we found problematic in People v. Nguyen, 900 P.2d 37 (Colo.1995), and that Nguyen was not raised by the Chief Appellate Deputy Public Defender on post-conviction review. Maj. op. at 1021-22.
We recently addressed the cireumstances under which conflict-free counsel must be appointed to investigate allegations of ineffective assistance of counsel in People v. Mills, 163 P.3d 1129, 1134 (Colo.2007). In that case, the defendant argued that conflict-free counsel should be appointed to investigate a claim of ineffective assistance whenever the current public defender has a good faith belief that the public defender in the prior proceeding was ineffective. Id. In a unanimous opinion, we disagreed with this argument. We began by noting that "[the standard for making a successful ineffective assistance of counsel claim is very high." Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also id. at 11833 (noting that, under Strickland, a defendant must show that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different); Silva, 156 P.3d at 1169 (applying the Strickland test to post-conviction counsel). Because of this "very high" standard, we continued, it is "the court's duty ... to require some factual basis that the standard will be satisfied before appointing an attorney to investigate the claims." Mills, 163 P.3d at 1184.
In my view, the majority has failed to perform this "duty" to satisfy itself that the "very high" standard of Strickland could be met in this case because it finds a colorable claim of ineffective assistance of counsel without seriously examining the particular sentencing problem we found in Nguyen, which involved only a conviction of attempted second degree assault. Thus, the majority erroneously finds a colorable claim of ineffective assistance without determining that Nguyen is truly applicable to Close's case. Cf. People v. Kibel, 701 P.2d 37, 43 (Colo.1985) (collecting cases for the proposition that a defendant cannot challenge a sentencing scheme unless it is actually applied to him or her).
IL.
The majority concludes that Nguyen is "applicable" to Close's case based on the fact that the defendant in Nguyen and Close were sentenced under the same statute. Maj. op. at 1021. Yet its examination of the sentencing statute stops there. While it is true that both Close and the defendant in Nguyen were sentenced under the same statute, the statute as it existed at the time covered both attempted and completed second degree assault. We found an equal protection violation in the application of the former, but not the latter. Because Close was convicted of completed assault, Nguyen does not apply to Close's case.
*1024In Nguyen, the defendant fired a gun in the direction of three boys and struck only one of them. 900 P.2d at 38. A jury found him guilty of attempted manslaughter and three counts of second degree assault-two of which were convictions for attempted see-ond degree assault on the two boys who escaped unscathed. Id. At the time, the statutory sentencing scheme applicable to crimes of violence imposed a range of five to sixteen years' imprisonment for attempted second degree assault, but only two to cight years for attempted first degree assault. Id. at 40. Thus, attempted second degree assault was punished more severely than the more serious crime of attempted first degree assault. We held this result to be a violation of equal protection, and struck the sentencing scheme as it applied to attempted second degree assault. Id. at 42 ("[T appropriate cure for the constitutional infirmity of section 18-3-208 is to strike the crime of violence sentencing under subsection 2(c) as it applies to attempted second degree assault.") (emphasis added).
Importantly, although the defendant in Nguyen was convicted of three counts of second degree assault, he did not appeal his conviction for completed second degree assault against the boy who was actually hit by a bullet he fired. Indeed, this court made clear that it was reviewing only the trial court's decision to vacate "Nguyen's two convictions for attempted second degree assault" against the two boys who were not hit by bullets or otherwise injured. Nguyen, 900 P.2d at 89 (emphasis added); see also id. at 38 ("The other two boys were not injured."). In sum, completed second degree assault was never at issue in Nguyen.
Close's conviction for second degree assault was based on a completed, not merely an attempted, crime. Close conceded to police, who testified at trial, that he had a stick with him at the time of the attack, and he admitted participating in the assault on the Japanese students. Thomas Stevens, one of the members of Close's group, testified that he saw Close strike "two or three" of the Japanese students with a broom handle, swinging it as though it were a "golf club" or "baseball bat," and that the broom handle broke from Close's force in "swinging it at a student." Stevens further testified that Close was swinging at "legs, back, head, anywhere," for "approximately three to five minutes" and that "the Japanese were getting seriously hurt." Stevens then testified that when the group returned to Close's house, Close told his mother that "[wle just got in a fight with some Japs and beat their ass." Further, one of the victims, Tsuyoshi Yama-shita, specifically testified that Close had struck him.
Additionally, the jury in Close's case received a complicity instruction, which states that a person is guilty of an offense committed by another person if he is a complicitor. Complicity is not a substantive offense, but rather a legal theory under which a defendant becomes accountable for a criminal offense committed by another. People v. Wheeler, 772 P.2d 101, 103 (Colo.1989); see also § 18-1-608, C.R.S. (2007) ("A person is legally accountable as principal for the behavior of another constituting a eriminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.") (emphasis added). At a minimum then, Close was convicted of completed assault under a complicity theory because all six victims testified at trial that they were physically attacked by members of Close's group. In sum, Close was convicted of completed second degree assault, either because he had personally committed it or because a member of his group had committed it and he was deemed to be the principal on a complicity theory.
The majority's reasoning misses the critical point that Nguyen involved attempted second degree assault, see Nguyen, 900 P.2d at 39 (reviewing Nguyen's "two convictions for attempted second degree assault"), whereas Close's case involves completed see-ond degree assault. The language of the second degree assault statute at issue in Nguyen and this case encompassed both attempted and completed assault. See § 18-3-208(1), C.R.S. (1995) ("A person commits the crime of assault in the second degree if ... [wiith intent to cause bodily injury to another *1025person, he causes or attempts to cause such injury to any person by means of a deadly weapom[.].8 Nguyen held only that the statute violated equal protection as applied to the class of persons convicted of the former-ie., attempted second degree assault. 900 P.2d at 40. The majority glosses over this important distinction by stating simply that the defendant in Nguyen and Close were both sentenced under the same statute "that was struck down in Nguyen." Maj. op. at 1021. But we did not "str[ike]) down" the statute in Nguyen; we struck down a particular application of the statute-that is, to attempted assault-which is not involved here. See 900 P.2d at 42 (invalidating the statute's application "to attempted second degree assault"). The majority thus concludes that Close has stated a colorable claim of ineffective assistance based upon only a superficial finding of "applicability."
If the majority were to examine the sentencing problem at issue in Nguyen more closely, it would conclude that Close's sentence presents no equal protection problem. The appropriate comparison at issue here is between completed second degree assault and completed first degree assault. See Nguyen, 900 P.2d at 40 (comparing attempted second degree assault with attempted first degree assault). At the time of Close's conviction, completed second degree assault carried a sentencing range of five to sixteen years' imprisonment, and completed first degree assault carried a range of ten to thirty-two years. See § 18-1-105(1)(a)(IV) (specifying sentencing ranges); § 18-3-202, C.R.S. (1995) (defining completed assault-l as a class-three felony); § 18-8-208, CRS. (1995) (defining completed assault-2 as a class-four felony); § 16-11-309(1), CRS. (1995) (increasing sentencing ranges for crimes of violence). Therefore, because completed second degree assault was punished less severely than completed first degree assault, no equal protection problem would arise-either under the reasoning of Nguyen, or the case upon which Nguyen relied, People v. Bramlett, 194 Colo. 205, 578 P.2d 94 (1977). See maj. op. at 1021 (citing Bram-lett ).
At the very least, the majority should remand this case for the trial court to consider whether Close was convicted of completed or attempted second degree assault. Instead, it dismisses this issue in a footnote, stating that it is impossible to determine whether Close was convicted of completed second degree assault or attempted second degree assault because the verdict is "ambiguous." See maj. op. at 1022 n. 5. Yet the same purported ambiguity did not hamper our analysis in Nguyen. To the contrary, we determined that a completed assault occurs when a victim is actually injured. Thus, we described two of the second degree assault convictions at issue in the case as attempted assault convictions because they involved the two uninjured victims. Nguyen, 900 P.2d at 38-39; see also § 18-3-208(1), C.R.S. (1995) (distinguishing between actually "causfing] bodily injury" and only "attempt[ing] to cause such injury"). And, as noted above, the defendant in Nguyen did not appeal his conviction for completed assault. The majority's refusal to distinguish between completed and attempted assault in this case is thus directly contradicted by the analysis we performed in Nguyen.
In Close's case, it is undisputed that all six victims were actually injured. As noted above, Close was convicted of six counts of completed second degree assault as a compli-citor. Indeed, in his previous Rule 35(c) motion filed on July 1, 1996, Close did not dispute that his six assault convictions were for completed assault; instead, he argued that he should not be held responsible under a complicity theory for the completed assaults that he did not personally commit. In that motion, Close claimed that the complicity instruction in his case was unconstitutional. He admitted that "six individuals were assaulted" and that "each assault appeared to *1026be committed by a single individual." He contended, however, that "it is not at all clear that the evidence supports Mr. Close's guilty [sic] of six counts of assault as a complicitor." Close made the same argument in his motion to reconsider the trial court's order denying his Rule 85(c) claim. The court of appeals in Close II rejected Close's challenge to the complicity instruction in his case. 22 P.3d 933, 986 (Colo.App.2000). We granted Close's certiorari petition with regard to the limited proportionality question, but we denied his petition regarding complicity.9 It is this petition that ultimately led to our opinion in Close III, 48 P.3d 528 (Colo.2002).
In sum, in his earlier Rule 35(c) motion, Close admitted that he was convicted of completed assaults; in fact, his entire challenge to his convictions under a complicity theory was based on that fact. Close's counsel therefore did not raise an equal protection problem based on attempted assault convie-tions during the Close III proceedings not because, as the majority posits, she was ineffective, maj. op. at 1022, but because it had been conceded in Close's challenge to the complicity instruction that he was convicted of six completed assaults.10
It was not until his complicity arguments had failed that Close argued his assault convictions violated equal protection principles, as articulated by Nguyen, in the Rule 35(c) motion we consider today, which was filed on March 5, 2008. Even at this point, however, Close never contended that he had committed no completed assaults. In fact, he admitted in his Rule 85(c) motion that he personally assaulted two or three of the victims:
The evidence at trial did provide that the victims were assaulted by the defendants. They all had been assaulted. That is not in question. What this argument is based on is that each defendant only assaulted two or three victims two or three times.... Evidence shows the defendant only assaulted two or three of the victims. [Emphasis added.]
Despite Close's admission that he committed at least "two or three" completed assaults in the very motion giving rise to our opinion today, the majority finds the jury's verdict to be ambiguous with respect to all six second degree assault convictions. Maj. op. at 1022 n. 5. Under the majority's decision, then, all six of Close's convictions are considered to be convictions for attempted assault even though he has admitted that he actually assaulted "two or three of the vie-tims." The rule of lenity upon which the majority relies, maj. op. at 1022 n. 5, cannot be read to justify ignoring the facts in the record before us. That Close himself distinguished between the assaults he actually committed and the ones he committed as a complicitor further erodes the majority's argument that it is impossible to determine whether he was convicted of completed or attempted assault. At bottom, the majority's cursory examination of the equal protection problem identified in Nguyen leads it to find a colorable claim of ineffective assistance where no equal protection violation exists.11
IIL
For the foregoing reasons, I would affirm the opinion of the court of appeals finding Close's claim under Rule 35(c) to be time-*1027barred, and its conclusion that Close cannot be relieved of Rule 35(c)'s time bar because he has failed to demonstrate a colorable claim for ineffective assistance of counsel. I therefore respectfully dissent from the majority's opinion. I am authorized to state that JUSTICE RICE joins in this dissent.
. Close's Rule 35(c) claim was filed on March 5, 2003, more than three years after his conviction became final on direct appellate review on September 9, 1994. See § 16-5-402(1), CRS. (2007) (setting three-year statute of limitations).
. The present version of section 18-3-203(1)(b) has eliminated "attempt" from the definition of second degree assault, and now provides that a defendant is guilty of second degree assault if "[wlith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon." § 18-3-203(1)(b), CRS. (2007) (emphasis added). Thus, under the present legislative scheme, only completed second degree assault is sentenced under the crime of violence statute.
. We denied certiorari review on the following question and its subparts:
2. Did the erroneous jury instruction on complicity deprive Close of his state and federal constitutional rights to trial by jury and due process of law?
a. Did the court of appeals apply the wrong standard of review in analyzing Close's claim of constitutional error?
b. Should this Court reconsider the requirements of complicitor liability in the wake of Apprendi v. New Jersey, 530 U.S. 466[, 120 S.Ct. 2348, 147 L.Ed.2d 435] (2000) and Jones v. United States, 526 U.S. 227[, 119 S.Ct. 1215, 143 L.Ed.2d 311] (1999)?
. In his May 29, 2001 Rule 35(a) motion, Close challenged the constitutionality of the complicity instruction a third time, admitting that "The Juries [sic]} convictions were based on, [sic]) an assault was committed against six Japanese students and the defendant was one of the people who did it."
. I would also find that Close's argument that his Rule 35(b) motion is timely is foreclosed by our decision in People v. Akins, 662 P.2d 486 (Colo.1983), where we held that the 120-day time limit for filing a sentence reduction motion under Rule 35(b) is not re-triggered by post-conviction review under Rule 35(c).