Peo v. Bolling

• Court: Colorado Court of Appeals
• Decided: October 23, 2025
• Docket: 24CA0972
• Status: Unpublished

Opinion

24CA0972 Peo v Bolling 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0972 City and County of Denver District Court No. 17CR7968 Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kapatrick Bolling,

Defendant-Appellant.

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

Division III Opinion by JUDGE DUNN Lipinsky and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 23, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Kapatrick Bolling, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion without a hearing.

We affirm in part, reverse in part, and remand the case for an

evidentiary hearing on one of Bolling’s postconviction claims.

I. Background

¶2 After Bolling shot a friend multiple times, the prosecution

charged him with attempted first degree murder, first degree

assault, felony menacing, and three counts of possession of a

weapon by a previous offender.

¶3 At defense counsel’s request, the district court ordered a

competency evaluation. The evaluator diagnosed Bolling with

schizophrenia and concluded that he was incompetent to assist in

his own defense. The court found Bolling incompetent and ordered

restoration treatment.

¶4 After Bolling was restored to competency, he pleaded guilty to

first degree assault with a stipulated sentencing range of ten to

sixteen years in prison.

¶5 Though defense counsel did not file any exhibits before the

sentencing hearing, Bolling individually filed several exhibits in

anticipation of the hearing.

1 ¶6 At the sentencing hearing, the prosecution requested a

sixteen-year prison sentence.

¶7 By contrast, defense counsel asked the court to impose a ten-

year prison sentence. Counsel briefly pointed to Bolling’s age and

mental health issues, generally referenced the presentence

investigation report and competency reports, and touched upon the

prosecution’s public safety concerns. Counsel concluded, “I don’t

really know what else we can say here except for that [Bolling] is

very remorseful for what happened,” he “has had documented

issues with mental health throughout his entire life, and we believe

that that is extremely mitigating.” Counsel presented no witnesses

or evidence.

¶8 The sentencing court weighed various sentencing factors,

including the gravity of the offense, Bolling’s criminal and social

history, and accountability. The court concluded that “Bolling is

mentally ill and violent and public safety suggests” that the

maximum sixteen-year sentence is fair and appropriate.

¶9 Bolling then filed a pro se motion for sentence reduction under

Rule 35(b). In it, he accepted accountability for the shooting,

updated the court on his progress in prison programs, and raised

2 his physical and mental health issues. The postconviction court

denied the motion, concluding that the original sentence was

appropriate.

¶ 10 Bolling next filed a pro se Rule 35(c) motion. The

postconviction court appointed counsel, who filed a supplemental

Rule 35(c) motion asserting that Bolling was denied effective

assistance of counsel at sentencing. The supplement also alleged

that sentencing counsel was ineffective for failing to advise Bolling

of his right to file a motion for sentence reduction under Rule 35(b)

and for failing to file that motion on Bolling’s behalf.1

¶ 11 The postconviction court denied the Rule 35(c) motion without

a hearing, concluding that counsel’s performance at sentencing was

reasonable and Bolling did not “affirmative[ly] prove prejudice.” The

court also denied Bolling’s claim that sentencing counsel was

ineffective for not advising him of his right to file a Rule 35(b)

1 Bolling does not reassert his remaining postconviction claim that

the sentencing court failed to advise him of his right to counsel to assist him with his motion for sentence reduction. We therefore deem that claim abandoned. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (a defendant’s failure to specifically reassert on appeal a claim that the postconviction court denied constitutes a “conscious relinquishment” and abandonment of the claim).

3 motion or filing the motion on his behalf because Bolling had timely

filed a pro se motion under Rule 35(b) along with mitigating

information.2

II. Analysis

¶ 12 Bolling contends that the postconviction court erred by

denying his Rule 35(c) claims without a hearing. We agree in part.

A. Legal Principles and Standard of Review

¶ 13 A defendant’s right to effective assistance of counsel extends to

sentencing. People v. Finley, 141 P.3d 911, 914 (Colo. App. 2006);

see U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. To

prevail on an ineffective assistance claim, a defendant must show

that (1) counsel’s performance was deficient, meaning it fell below

an objective standard of reasonableness; and (2) the deficient

performance prejudiced the defendant, meaning there is a

reasonable probability that, but for counsel’s errors, the outcome

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

687-88, 694 (1984).

2 Because the postconviction court appointed postconviction

counsel, the court should not have denied the supplemental motion without following the procedure outlined in Crim. P. 35(c)(3)(V).

4 ¶ 14 When a defendant alleges sufficient facts that, if true, “may

warrant relief [under Rule 35(c)], the court must conduct an

evidentiary hearing.” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7

(emphasis added). Evidentiary support is not required to warrant a

hearing. White v. Denv. Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A

court may deny a motion without a hearing only if the motion, files,

and record in the case clearly establish that the allegations are

without merit and do not warrant postconviction relief. Ardolino v.

People, 69 P.3d 73, 77 (Colo. 2003).

¶ 15 We review the denial of a Rule 35(c) motion without a hearing

de novo. People v. Cali, 2020 CO 20, ¶ 14.

B. Sentencing

¶ 16 Postconviction counsel alleged that counsel was ineffective at

sentencing because she failed to

• independently investigate and present mitigation

evidence in violation of Standard 4-8.3 of the ABA

Criminal Justice Standards for the Defense Function (4th

ed. 2017) (ABA standards);

5 • engage a social worker to assist sentencing counsel with

gathering and developing mitigation evidence “as is

standard practice”;

• present evidence or testimony from Bolling’s family

members about his history, social support, and their

ability to assist with Bolling’s mental health medication

and treatment;

• present evidence or testimony from Bolling’s caseworker,

who could provide information about Bolling’s progress

and treatment while incarcerated;

• identify Bolling’s specific diagnoses, including

schizophrenia, borderline intellectual functioning, ADHD,

sleep apnea, and diabetes; their effects on his executive

functioning abilities; and the fact that his conditions

were untreated at the time of the offense but managed

when medicated; and

• present evidence that “schizophrenia fluctuates over

time, with the most notable change occurring in later life

when individuals experience a significant decrease in

acute systems” and that, given the time of diagnosis and

6 Bolling’s age, he was “at the stage of the disorder where

he [wa]s currently experiencing a decrease in symptoms.”

¶ 17 As to prejudice, the postconviction motion alleged that by not

presenting this information at sentencing, counsel failed to provide

critical mitigation information and address public safety concerns.

And it alleged that had counsel properly prepared for the sentencing

hearing, there is a reasonable probability that Bolling would not

have received the maximum sentence.

¶ 18 Though not required to provide evidentiary support,

postconviction counsel supported the motion with, among other

things, multiple letters from Bolling’s family and a ten-page

mitigation report from a forensic social worker.

¶ 19 The court declined to hold an evidentiary hearing on the

motion, suggesting — without expressly stating — that the motion

failed to specify facts supporting a claim for relief. The court

considered the merits of the motion and concluded that sentencing

counsel “did what a reasonably competent attorney would have

done” and that Bolling failed to establish prejudice that would have

changed his sentence.

7 ¶ 20 But we agree with Bolling that he alleged sufficient facts to

warrant an evidentiary hearing. As to deficient performance, the

Rule 35(c) motion alleged — and the record confirms — that his

counsel presented no mitigation evidence or witnesses at

sentencing. Bolling alleged this failure was below the ABA

standards. These facts, if true, would establish deficient

performance.

¶ 21 Turning to prejudice, the Rule 35(c) motion identified

mitigation evidence to counter the court’s concern that the

maximum sentence was required for public safety. Indeed, the

motion included allegations — supported by a forensic social worker

— that the symptoms of schizophrenia decrease with age. That

information was never presented, by Bolling or his counsel, to the

sentencing court, and it is not included in the presentence

investigation report or competency evaluations.3 The motion also

3 The sentencing court referenced the presentence investigation

report at the hearing, but it did not reference the competency evaluations, which document Bolling’s amenability to treatment and improvement with medication. Though defense counsel generally referred to the competency reports, the record does not show whether the sentencing court reviewed the reports before sentencing.

8 alleged that Bolling was untreated at the time of the shooting, but

that his family was committed to helping him manage his diagnosis

through treatment and medication. And it alleged that had defense

counsel properly prepared and advocated for Bolling at sentencing,

there’s a reasonable probability that Bolling would not have

received the maximum sentence.

¶ 22 Though the postconviction court rejected the mitigation

evidence and concluded that Bolling did not present “affirmative”

proof of prejudice, Bolling was not required to present evidentiary

support to warrant a hearing. White, 766 P.2d at 635. He just

needed to allege facts that, if true, would provide a basis for relief.

We conclude that Bolling alleged sufficient facts to entitle him to a

hearing on whether his counsel’s alleged deficient performance

affected the sentencing outcome.4

¶ 23 Given all this, we conclude that the postconviction court erred

by denying this claim without a hearing.

4 We recognize that the postconviction court later rejected Bolling’s

pro se motion to reduce his sentence under Rule 35(b). But that brief motion did not contain the same substantive allegations as did the supplemental Rule 35(c) motion. The Rule 35(b) motion specifically lacked any allegations about the impact of age on schizophrenia symptoms and Bolling’s reactions to treatment.

9 C. Motion for Sentence Reduction

¶ 24 Bolling briefly asserts that the postconviction court erred by

denying his claim that his sentencing counsel was ineffective for not

advising him that he could file a motion for sentence reduction or

filing a motion for sentence reduction on his behalf.

¶ 25 But we do not consider appellate arguments presented in a

conclusory and undeveloped manner. People v. Wiseman, 2017

COA 49M, ¶ 48. And Bolling doesn’t develop any appellate

argument explaining how the postconviction court erred by denying

this claim. It’s not enough to simply assert that he was prejudiced

“by counsel’s failure to assist or advise him” in connection with his

motion for sentence reconsideration.

¶ 26 We therefore affirm that portion of the postconviction court’s

order.

III. Disposition

¶ 27 The order is reversed in part, and the case is remanded for an

evidentiary hearing on Bolling’s claim that he was denied effective

assistance of counsel at sentencing. The order is otherwise

affirmed.

JUDGE LIPINSKY and JUDGE KUHN concur.