Peo v. Anderson

Opinion

23CA0906 Peo v Anderson 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0906 El Paso County District Court No. 19CR4891 Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Liam Richard Anderson,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 9, 2025

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Liam Richard Anderson, appeals the

postconviction court’s order denying his Crim. P. 35(c) motion for

postconviction relief. We affirm.

I. Background

¶2 The prosecution charged Anderson with attempted first degree

murder, attempted second degree murder, first degree burglary,

second degree burglary, menacing, first degree aggravated motor

vehicle theft, robbery, reckless driving, and two counts each of first

degree criminal trespass, third degree assault, child abuse, and

second degree assault. He was also charged with three habitual

criminal counts. Anderson later pleaded guilty to attempted first

degree murder, second degree burglary, first degree aggravated

motor vehicle theft, and robbery. In exchange, the prosecution

agreed to dismiss the remaining twelve charges, as well as the

habitual criminal counts.

¶3 Under the plea agreement, the parties also agreed to resolve

four pending probation cases, as well as two other separate cases,

including a case Anderson incurred while he was on bond. The

parties further stipulated to a controlling sentence of thirty-four

1 years in prison. The trial court accepted the plea agreement and

sentenced Anderson accordingly.

¶4 Anderson timely filed a Crim. P. 35(c) motion for

postconviction relief. He claimed that his counsel provided

ineffective assistance by (1) failing to investigate the affirmative

defense of involuntary intoxication and his mental illness in

support of a not guilty by reason of insanity (NGRI) plea and (2)

advising him to reject “superior plea agreement offers.” He further

claimed that his due process rights were violated by the state’s

failure to disclose exculpatory evidence — namely, 911 calls made

by the victim and police body camera (bodycam) recordings. The

postconviction court appointed counsel to represent Anderson.

¶5 Postconviction counsel filed a supplement to Anderson’s pro se

motion but did not add any new claims. The prosecution filed a

written response, postconviction counsel replied, and the

postconviction court denied Anderson’s Crim. P. 35(c) motion and

supplement without a hearing.

2 II. Discussion

¶6 Anderson contends that the postconviction court erred by

denying his Crim. P. 35(c) motion and supplement without a

hearing. We disagree.

A. Legal Principles and Standard of Review

¶7 In a Crim. P. 35(c) proceeding, a judgment of conviction is

presumed valid, and the defendant bears the burden of establishing

an entitlement to postconviction relief. People v. Corson, 2016 CO

33, ¶ 25. To obtain a hearing on his postconviction motion, the

defendant must assert specific facts that, if true, would provide a

basis for relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo.

1988). Thus, a postconviction court may deny a Crim. P. 35(c)

motion without a hearing if (1) the allegations are merely

conclusory, vague, or lacking in detail; (2) the allegations, even if

true, do not warrant relief; or (3) the record refutes the claims. See

Crim. P. 35(c)(3)(IV); People v. Duran, 2015 COA 141, ¶ 9.

¶8 We review de novo the court’s denial of a Crim. P. 35(c) motion

without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

3 B. Ineffective Assistance of Counsel Claims

¶9 Defendants have a constitutional right to effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).

To demonstrate ineffective assistance of counsel, a defendant must

show that (1) his lawyer’s performance was deficient and (2) the

deficient performance prejudiced him. Id. at 687. An ineffective

assistance claim fails if the defendant is unable to satisfy either the

deficient performance or the prejudice prong of the Strickland

standard. Id. at 697.

¶ 10 To establish deficient performance, the defendant must show

that counsel’s representation “fell below an objective standard of

reasonableness.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

2007) (quoting Strickland, 466 U.S. at 688). When a conviction is

the result of a guilty plea, prejudice is established if the defendant

pleads and proves that, but for counsel’s deficient performance,

they “would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see People v.

Sifuentes, 2017 COA 48M, ¶ 20. Furthermore, to establish

prejudice, a defendant “must convince the court that a decision to

4 reject the plea bargain would have been rational under the

circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

1. Investigate Defenses

¶ 11 Anderson asserts that trial counsel was ineffective for failing to

adequately investigate his involuntary intoxication and NGRI

defenses. Because we conclude that Anderson has failed to

adequately allege prejudice on both claims, the postconviction court

properly denied them without a hearing.

¶ 12 Criminal defendants are entitled to sufficiently thorough

pretrial investigations “to develop potential defenses and uncover

facts relevant to guilt and punishment.” People v. Davis, 849 P.2d

857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see

also Strickland, 466 U.S. at 690-91 (“[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.”). But even if we

assume that Anderson’s counsel was deficient in failing to

investigate his involuntary intoxication and NGRI defenses, his

motion and supplement fail to adequately allege that he would have

rejected the plea deal and proceeded to trial but for counsel’s

alleged omissions. At most, Anderson asserts that counsel’s alleged

5 deficiency regarding these two claims undermines the reliability of

his plea and the trial court’s finding that he entered the plea

knowingly, intelligently, and voluntarily. But this alone is not

enough to satisfy Strickland’s prejudice component. See Hill, 474

U.S. at 59-60. As noted, Hill holds that a defendant who pleads

guilty cannot satisfy the prejudice component, and thus cannot

prevail on their ineffective assistance of plea counsel claim, unless

the defendant shows that, but for counsel’s deficient performance,

they would have rejected the plea deal and insisted on going to trial.

See id. Anderson did not allege any facts in this regard in his

motion or supplement. And to the extent he does so in his opening

brief on appeal, it is too late. See People v. Rodriguez, 914 P.2d

230, 251 (Colo. 1996) (rejecting the defendant’s “attempts to use his

brief on . . . appeal to fortify a number of issues inadequately raised

or supported by his [postconviction] motion”); see also People v.

Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not

raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the

trial court are not properly before this court for review.”).

¶ 13 Moreover, we note that the prosecution stipulated to a

controlling thirty-four-year sentence and included in that sentence

6 four pending probation revocation cases (three of which were for

felony convictions) as well as two additional separate felony cases

(one that occurred while Anderson was on bond for this case).

Given the habitual criminal charges Anderson faced, had he gone to

trial and been convicted of the highest count, he faced a mandatory

prison sentence of seventy-two years on that count alone. See

§ 18-1.3-801(1.5)(a), C.R.S. 2024. The plea agreement saved

Anderson from what would have been a significantly longer prison

sentence — more than double the sentence he is currently serving

— and he has not alleged that there is “a reasonable probability

that a defendant in his position would have insisted on trial.”

Corson, ¶¶ 42-43. Thus, given the facts of the case, we are not

persuaded that — even if he had sufficiently alleged prejudice — his

decision to reject the plea agreement and go to trial would have

been rational under the circumstances. Padilla, 559 U.S. at 372.

Consequently, Anderson was not entitled to an evidentiary hearing

on these claims.

2. Plea Offer Advice

¶ 14 Next, we address Anderson’s claim that trial counsel was

ineffective because he failed to properly advise Anderson regarding

7 two earlier plea offers — specifically, an offer with a stipulated

prison range of twenty to twenty-four years (and an agreement to

concurrently resolve five pending cases); and a subsequent offer

with a stipulated range of twenty-eight to forty years (and an

agreement to concurrently resolve all of his pending cases,

including a new case Anderson incurred while he was on bond).

¶ 15 To establish deficient performance in this context, a defendant

must show that counsel’s advice deprived him of the opportunity to

make a reasonably informed decision whether to accept or reject a

plea offer. People v. Delgado, 2019 COA 55, ¶ 17; see Corson, ¶ 35

(noting that the performance prong under Strickland “is no different

in the plea setting”). However, postconviction courts may not rely

on “the distorting effects of hindsight” and must evaluate the

challenged conduct “from counsel’s perspective at the time.”

Rodriguez, 914 P.2d at 294.

¶ 16 Anderson asserts that his attorney’s advice “that he would

have done better to refuse the offers” was deficient in the face of his

attorney’s subsequent “failure to investigate” his defenses. But

Anderson has not identified any erroneous or incorrect statements

of law or fact that trial counsel made to Anderson at the time he

8 advised him to reject the prior plea offers, nor has he identified how

counsel’s advice was somehow untrue or unreasonable at the time

it was given. Therefore, because Anderson’s claim requires a level

of hindsight that we may not consider, his claim fails and the

postconviction court properly denied it without a hearing.

C. Failure to Disclose Exculpatory Evidence

¶ 17 Last, we address Anderson’s claim that the prosecution

violated his constitutional due process rights by failing to disclose

material exculpatory evidence under Brady v. Maryland, 373 U.S.

83 (1963). Anderson’s claim is based on the prosecution’s failure to

disclose (1) two 911 calls made by the victim “at the time of the

incident” and (2) nineteen bodycam videos containing footage from

“the [victim’s] house at the time of the incident and the hospital in

the aftermath.”

¶ 18 A Brady claim requires the defendant to show that (1) the

prosecution suppressed evidence (2) that is exculpatory or favorable

to the defendant and (3) that is material to the case. People v.

Bueno, 2018 CO 4, ¶ 29. Evidence is considered exculpatory or

favorable under Brady if it has a tendency to decrease the likelihood

of conviction or the severity of the sentence. Id. at ¶ 31. Evidence

9 is sufficiently material where “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Id. at 32. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome. Id.

¶ 19 Anderson asserts that these recordings are exculpatory

because they “call into question as reliable the accepted courtroom

narrative” that he was “violent and aggressive” and help “to refute

the claims represented by the state.” He asserts the recordings are

material because if he had been in possession of them before

entering his plea, “the likelihood is that the outcome would have

been different.”1 And he asserts the withholding of this evidence

“negates the intelligent, knowing and willing nature” of his plea.

¶ 20 As to the bodycam videos, the postconviction court found that

Anderson’s assertions that the footage was exculpatory was vague

and conclusory. We agree. In his pro se motion, Anderson

describes the content of the bodycam footage as “images of

1 The parties do not dispute that the victim’s 911 calls and the

bodycam videos were not disclosed to Anderson before he pleaded guilty.

10 Anderson lying on the floor, his throat flayed open, mostly

motionless,” as well as images of the victims, the inside of their

home, and other views of the scene after the police arrived. But

Anderson does not explain in his motion how this footage tends to

negate his guilt as to the offenses charged against him. Instead, he

only vaguely asserts that “the body-worn cameras [were] helpful for

Anderson to refute the claims represented by the state” and “have

the tendency to call into question as reliable the accepted

courtroom narrative.” These claims are bare and conclusory and

the postconviction court properly denied them on this basis. See

People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007) (concluding

that a postconviction motion is properly denied when the

allegations are “conclusory, vague, or lacking in detail”).

¶ 21 As to the 911 calls, the postconviction court concluded that

the calls were neither exculpatory nor material and “[a]t best” were

impeachment evidence. We agree with the postconviction court that

these allegations do not support any cognizable claims under

Brady. In Anderson’s pro se motion, he described the 911 calls as a

“play-by-play” of “what is happening in real time.” In his

supplement, he elaborated by highlighting two inconsistencies

11 between the victim’s statements made to law enforcement and the

911 calls — (1) the location of the victim when Anderson crashed

into her yard; and (2) the victim’s husband’s statement that “he’s

dead” (overheard during the first 911 call) as compared to the

victim’s statement that Anderson was “actively fighting” (in the

subsequent 911 call). Anderson asserts that these “calls were not

merely impeachment” of the witness’s statements but “contained

exculpatory evidence as to what they claim Anderson’s actions were

that day — actions for which he was specifically charged criminally

herein.”

¶ 22 But the location of the victim when Anderson crashed onto her

property does not mitigate Anderson’s likelihood of guilt, nor do the

victim’s conflicting statements about whether Anderson was

perceived to be dead or actively fighting after she fled her home. As

the postconviction court noted, this evidence is at most impeaching

of the victim’s narrative about what happened. And the

prosecution’s failure to disclose impeachment evidence does not

violate a defendant’s due process rights under Brady or render a

defendant’s plea involuntary because defendants do not have any

due process rights to non-exculpatory impeachment material.

12 Corson, ¶ 31. Accordingly, the postconviction court properly denied

this claim without a hearing as well.

III. Disposition

¶ 23 The order is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.