Peo v. Barrientos

• Court: Colorado Court of Appeals
• Decided: March 12, 2026
• Docket: 25CA0159
• Status: Unpublished

Opinion

25CA0159 Peo v Barrientos 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0159 El Paso County District Court No. 16CR4154 Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Enrique Augustin Barrientos,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE JOHNSON Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 12, 2026

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Kinniry Law Office, Janet Kinniry, Gardner, Colorado, for Defendant-Appellant ¶1 Defendant, Enrique Augustin Barrientos (Barrientos), appeals

the postconviction court’s order denying his motion seeking relief

under Crim. P. 35(c) following an evidentiary hearing. We affirm.

I. Background

¶2 The prosecution charged Barrientos with three counts of

sexual assault on a child as part of a pattern of abuse (SAOC-

pattern). The charges were based on allegations that Barrientos

touched the buttocks, breasts, and pubic area of his girlfriend’s

fourteen-year-old sister. At the time, Barrientos was nineteen years

old and lived with his girlfriend’s family.

¶3 As part of a plea agreement, Barrientos pleaded guilty to an

added count of sexual assault on a child in exchange for a

stipulated, indeterminate sentence of ten years to life of sex offender

intensive supervised probation (SOISP). The district court imposed

the stipulated sentence, but when Barrientos’s probation and

subsequent community corrections sentences were revoked, the

court imposed an indeterminate term of four years to life in the

custody of the Department of Corrections (DOC).

¶4 Barrientos timely filed a pro se Crim. P. 35(c) motion asserting

various claims of ineffective assistance of plea counsel. The

1 postconviction court appointed Barrientos counsel, who filed a

supplement raising additional claims of ineffective assistance of

plea counsel. The court denied the motion (and supplement)

without holding a hearing. Barrientos appealed. A division of this

court reversed the order in part and remanded with instructions to

hold a hearing on two claims — namely, allegations that:

(1) Barrientos’s attorneys failed to conduct any investigation

before advising him to plead guilty. Had they done so they

would have discovered that the victim did not want to testify

against him and “would not have.” There was a reasonable

probability that Barrientos would have rejected the plea offer

and proceeded to trial if his attorneys had properly

investigated and learned this information.

(2) Barrientos’s plea was not knowing, voluntary, and intelligent

as a result of his counsel’s failure to investigate his case.

See People v. Barrientos, (Colo. App. No. 22CA0389, July 6, 2023)

(not published pursuant to C.A.R. 35(e)). The division affirmed the

postconviction court’s order concerning Barrientos’s claim that his

plea was not knowing, voluntary, and intelligent due to his Fetal

2 Alcohol Syndrome (FAS) and the claims raised in his pro se motion.

Id. at ¶ 19.

¶5 At the hearing held on remand, the postconviction court heard

testimony from the two public defenders who represented

Barrientos, postconviction counsel’s investigator, Barrientos, and a

criminal defense expert. After the hearing, the court denied

Barrientos’s remaining claims in a written order. As relevant here,

the court found that there was “no reliable evidence that the victim

would have refused to testify had the case gone to trial” and thus,

counsel’s failure to investigate was not prejudicial. The court also

found that even if the victim would not have wanted to testify,

Barrientos’s assertion that he would not have accepted the plea

offer was not credible.

II. Standard of Review and Applicable Law

¶6 In reviewing the denial of a Crim. P. 35(c) motion after a

hearing, we review conclusions of law de novo but defer to the

postconviction court’s findings of fact if they are supported by the

evidence. People v. Villanueva, 2016 COA 70, ¶ 28. “The weight

and credibility to be given the testimony of witnesses in a Crim. P.

35(c) hearing is within the province of the trial court and when

3 there is sufficient evidence in the record to support the court’s

findings, its ruling will not be disturbed on review.” People v.

Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).

¶7 To establish a claim of ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance was deficient,

meaning it fell below an objective standard of reasonableness; and

(2) counsel’s deficient performance prejudiced the defendant,

meaning that there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 687-

88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).

A postconviction court may reject an ineffective assistance of

counsel claim if the defendant fails to demonstrate either deficient

performance or prejudice. See People v. Aguilar, 2012 COA 181,

¶ 9.

III. Failure to Investigate

¶8 Barrientos contends that, contrary to the postconviction

court’s findings, the evidence presented at the hearing established

that (1) plea counsel performed deficiently by failing to conduct any

investigation before advising Barrientos to plead guilty; and (2) had

4 plea counsel conducted an investigation, counsel would have

discovered that the victim would have refused to testify at trial,

which would have altered Barrientos’s decision to plead guilty.

¶9 Resolving this claim on prejudice grounds alone, the

postconviction court found that, even if counsel had interviewed the

victim before advising Barrientos to accept the plea agreement,

there was “no reliable evidence” that the victim would have refused

to testify had the case gone to trial. See People v. Chambers, 900

P.2d 1249, 1252 (Colo. App. 1994) (“Unless such investigation

would have discovered substantial evidence which, if introduced,

might reasonably have led to a different result, counsel’s deficiency,

if such it be, was not prejudicial.”).

¶ 10 Based on the postconviction court’s credibility determinations

and factual findings, we perceive no error in the court’s ruling.

Specifically, in support of its finding, the court relied on testimony

presented at the hearing that (1) the victim met with the prosecutor

twice in 2017 — once approximately three months before the

original trial date and again before the sentencing hearing; (2) at no

point during these meetings did the victim indicate that she was

unwilling to testify at trial and, during the second meeting, she

5 expressed concern that Barrientos had a girlfriend who was a

minor; and (3) the victim never recanted the allegations she made

against Barrientos, either in 2017 or four years later when she

spoke to postconviction counsel’s investigator. Based on this

evidence, the court determined that while postconviction counsel’s

investigator “presented herself as credible,” it “c[ould] not place

much weight on her testimony” that the victim would not testify if

the case had gone to trial. Instead, the court was persuaded that

the victim’s statements and cooperation with the prosecution in

2017 were more reliable than the statement the victim made to

postconviction counsel’s investigator four years later.

¶ 11 The postconviction court also found that, even if the victim

truly did not want to testify in 2017, Barrientos’s testimony — that

if he had known that the victim did not want to testify, he would not

have pleaded guilty — was not credible. The court rested this

finding on evidence presented at the hearing that Barrientos wanted

to plead guilty. Namely, the court observed that Barrientos (1)

waived his preliminary hearing in order to keep negotiations open;

(2) negotiated with the prosecutor who agreed to change the original

offer from an “open” sentence to one that stipulated a sentence to

6 probation; and (3) filed his Crim. P. 35(c) motion only after his

sentence was revoked for a second time and he was sentenced to

the DOC.

¶ 12 Deferring to the postconviction court’s assessment of

Barrientos’s credibility and decision to accord postconviction

counsel’s investigator’s testimony little weight, see Dunlap, 173 P.3d

at 1061-62, we conclude that the court did not err by determining

that Barrientos failed to establish that, but for plea counsel’s

deficient performance, the result of the proceedings would have

been different. We acknowledge that reasonable minds might differ

concerning whether the victim was planning to testify at trial and, if

not, whether Barrientos would have rejected the plea agreement

had he known this. But it was the court’s prerogative to weigh this

conflicting testimony, see Williams, 908 P.2d at 1161, and we must

defer to those factual findings unless they are clearly erroneous or

lack the support of competent evidence in the record, see People v.

Kyler, 991 P.2d 810, 819 (Colo. 1999). Accordingly, we affirm the

court’s findings and conclusions.

7 IV. New, Resolved, and Abandoned Claims

¶ 13 Barrientos also contends that plea counsel failed to consider

the impact of his FAS on his ability to be successful on SOISP

probation. We decline to address this claim for two reasons. First,

to the extent this is a new claim, it was not raised in his Crim. P.

35(c) motion or at the hearing. See People v. Goldman, 923 P.2d

374, 375 (Colo. App. 1996) (“Allegations not raised in a Crim. P.

35(c) motion or during the hearing on that motion and thus not

ruled on by the trial court are not properly before this court for

review.”). Second, to the extent this is the same FAS claim that was

raised in Barrientos’s supplemental motion, it is outside the scope

of the remand order. See People v. Grassi, 364 P.3d 1144, 1149

(Colo. App. 2011) (declining to address argument raised on appeal

from proceedings on remand as “outside the limited scope of the

remand”).

¶ 14 For similar reasons, we also decline to address Barrientos’s

claim concerning the People’s ability to charge him with three

SAOC-pattern counts. See Goldman, 923 P.2d at 375.

¶ 15 Finally, because Barrientos does not reassert his claim that

his plea was not knowing, voluntary, and intelligent due to his

8 counsel’s failure to investigate, we deem this claim abandoned and

will not address it. See People v. Rodriguez, 914 P.2d 230, 249

(Colo. 1996) (failure to specifically reassert the claims the district

court disposed of constitutes a conscious relinquishment of those

claims on appeal).

V. Conclusion

¶ 16 The order is affirmed.

JUDGE PAWAR and JUDGE GOMEZ concur.