Peo v. Bunn

• Court: Colorado Court of Appeals
• Decided: November 21, 2024
• Docket: 23CA0324
• Status: Unknown

Opinion

23CA0324 Peo v Bunn 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0324 Jefferson County District Court No. 14CR2544 Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

David Kenneth Bunn,

Defendant-Appellee.

ORDER AFFIRMED

Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024

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

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant ¶1 David Kenneth Bunn appeals the postconviction court’s denial

of his Crim. P. 35(c) claim alleging ineffective assistance of plea

counsel. We affirm.

I. Background

¶2 In 2014, Bunn was texting while driving with a blood alcohol

content of approximately three times the legal limit. People v. Bunn,

slip op. at 1 (Colo. App. No. 15CA1740, Mar. 16, 2017) (not

published pursuant to C.A.R. 35(e)) (Bunn I). He swerved across

three lanes of traffic and collided head on with a car occupied by

two teenagers. Id. One teen died, and the other was seriously

injured. Id.

¶3 The People charged Bunn with six felonies, including two class

3 felony counts of first degree assault with crime-of-violence

sentence enhancements. These two felonies alone carried an

aggregate prison sentence of twenty to sixty-four years. See § 18-

1.3-401(1)(a)(V)(A), (8), (10), C.R.S. 2024; § 18-1.3-406(1)(a)-(b),

(2)(a)(II)(C), C.R.S. 2024. Bunn pleaded guilty to one count of

vehicular homicide, one count of vehicular assault, and one count

of first degree assault with a crime-of-violence sentence

enhancement — charges exposing him to an aggregate prison

1 sentence of between ten and fifty years — in exchange for dismissal

of all remaining charges. The district court imposed a twenty-eight-

year sentence, and a division of this court affirmed the sentence on

direct appeal. See Bunn I.

¶4 Bunn timely filed a Crim. P. 35(c) motion, which his

postconviction counsel supplemented. As now relevant, Bunn

claimed that his plea counsel had provided erroneous legal advice

regarding the plea. He alleged that counsel never explained the

plea deal; told him that he would receive a ten-year nonviolent

prison sentence; and instructed him that, at the plea hearing, he

should ignore what the court said about his sentence and answer

“yes” to the judge’s questions.

¶5 The postconviction court held a hearing at which Bunn, his

ex-wife, and plea counsel (Arthur Nieto) testified. The court then

issued a written order finding that Bunn’s testimony in support of

his allegations hadn’t been credible and that Nieto had credibly

testified to the contrary. Specifically, Nieto testified that (1) he had

discussed the plea agreement in detail and reviewed it “word-by-

word” with Bunn; (2) he had never promised Bunn that he would

receive a ten-year sentence; and (3) he hadn’t told Bunn to answer

2 “yes” to all the court’s questions or to ignore what the judge said.

Considering this testimony, the plea agreement, and the transcript

of the plea hearing, the court found that Bunn hadn’t established

either deficient performance or prejudice under Strickland v.

Washington, 466 U.S. 668 (1984). It therefore denied Bunn’s

motion.

II. Discussion

¶6 As we understand Bunn’s argument on appeal, he contends

that the postconviction court’s credibility findings aren’t supported

by the record. We aren’t persuaded.

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

presumed, and the defendant bears the burden of proving that he is

entitled to postconviction relief. Dunlap v. People, 173 P.3d 1054,

1061 (Colo. 2007). When we review a postconviction court’s Crim.

P. 35(c) ruling following an evidentiary hearing, we defer to the

court’s assessment of the weight and credibility of witness

testimony. Id. at 1061-62; see also Kailey v. Colo. State Dep’t of

Corr., 807 P.2d 563, 567 (Colo. 1991) (“It is . . . the province of the

court, as the trier of fact, to determine the credibility of the

witnesses and the weight to be given their testimony.”). We will set

3 aside a court’s factual findings “only when they are so clearly

erroneous as to find no support in the record.” People v. Beauvais,

2017 CO 34, ¶ 22.

¶8 As the postconviction court noted, the record corroborates

Nieto’s version of events. The transcript of the plea hearing

demonstrates that the district court clearly explained the range of

possible sentencing for each charge, that Bunn affirmed that he

had discussed the plea “in great detail” with Nieto, and that Bunn

didn’t simply answer “yes” to each of the court’s questions. Bunn

didn’t object to the sentencing ranges described at his plea hearing.

The transcript of the sentencing hearing also reveals that Bunn

didn’t object to the sentence imposed. Moreover, the plea

agreement emphasized in bold print that (1) the length of the

sentence would fall within the specified range; (2) first degree

assault was a crime of violence; and (3) the district attorney

wouldn’t make any sentencing concessions.

¶9 Moreover, we perceive no evidence refuting the postconviction

court’s credibility findings. Bunn points to his own postconviction

testimony, but his testimony itself can’t prove that his testimony

was true (or that Nieto’s testimony was false). The court didn’t

4 make any credibility findings regarding Bunn’s ex-wife’s testimony,

which, as now relevant, only supported that Bunn signed the plea

agreement during a five-minute meeting with Nieto. But even if the

ex-wife’s testimony were credible, it would be insufficient to

affirmatively refute the court’s credibility findings as to Bunn and

Nieto.

¶ 10 For these reasons, we defer to the postconviction court’s

findings, and we conclude that Bunn didn’t meet his burden of

proving that his plea counsel’s performance “fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688.

III. Disposition

¶ 11 The order is affirmed.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.