24CA0239 Peo v Fuentes 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0239 Boulder County District Court No. 21CR4 Honorable Nancy W. Salomone, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ely Antonio Fuentes,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE JOHNSON Welling and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Ely Antonio Fuentes, Pro Se ¶1 Defendant, Ely Antonio Fuentes (Fuentes), appeals the
postconviction court’s order denying his pro se Crim. P. 35(c)
motion without a hearing. On appeal, Fuentes contends that his
trial counsel was constitutionally deficient by failing to (1) challenge
Fuentes’ statements made after his Miranda rights were given to
him in English, as his native language is Spanish; (2) challenge the
admissibility of statements Fuentes made when speaking with the
police because the interview was conducted in English; and
(3) appropriately investigate his case. Because of this deficient
performance, Fuentes argues, he did not understand the judicial
proceedings, and, therefore, entered an involuntary guilty plea. We
affirm.
I. Background
¶2 In late December 2020, Fuentes’ significant other reported to
police that she had witnessed Fuentes digitally penetrating his five-
year-old niece’s “private parts” in the bathroom of the master
bedroom during a family gathering. She also reported witnessing
him filming his actions on his phone. Since the significant other
did not speak English, her daughter reported the incident to the
1 police, and the daughter acted as the significant other’s interpreter
when law enforcement arrived.
¶3 Fuentes is a native-Spanish speaker with limited English-
speaking skills; at the time of the investigation, however, he told
officers that he was able to understand English and responded
appropriately to the police officer’s questions and comments. The
officers told Fuentes that it was not mandatory for them to look
through his phone, but he responded that it was “good for him” and
it could be checked. The police discovered an image of a
prepubescent vagina with what appeared to be an adult hand. After
the interview, Fuentes was arrested, and his phone was seized.
¶4 Fuentes was charged with one count of sexual assault on a
child, two counts of sexual exploitation of a child, and a sentence
enhancing aggravated sex offense count. In November 2022,
Fuentes entered into a plea agreement in which the prosecution
agreed to dismiss the four counts against him in exchange for his
guilty pleas to one count of first degree assault and one count of
sexual exploitation of a child. The agreement also required Fuentes
to forfeit all seized electronics, register as a sex offender, and have
no contact with his significant other, the niece, and two other
2 involved family members. Fuentes was sentenced to fourteen years
in the custody of the Department of Corrections.
¶5 In September 2023, Fuentes filed his Crim P. 35(c) motion.
The court denied it without holding a hearing or appointing
counsel. Fuentes filed this appeal.
II. Standard of Review and Applicable Law
¶6 Postconviction rulings on ineffective assistance of counsel
claims are a mixed question of fact and law. See Strickland v.
Washington, 466 U.S. 668, 698 (1984); see also Dunlap v. People,
173 P.3d 1054, 1063 (Colo. 2007). A postconviction court’s denial
of a Rule 35(c) motion without a hearing is reviewed de novo. See
People v. McGlaughlin, 2018 COA 114, ¶ 25; People v. Smith, 2017
COA 12, ¶ 12.
¶7 A court may deny a Crim P. 35(c) motion without an
evidentiary hearing if the motion, files, and case record establish
the defendant is not entitled to relief. See Ardolino v. People, 69
P.3d 73, 77 (Colo. 2003). Thus, a summary denial of a
postconviction motion is appropriate if (1) the allegations are bare
and conclusory; (2) the allegations, even if true, do not warrant
postconviction relief; or (3) the record directly refutes the
3 defendant’s claims. See White v. Denver Dist. Ct., 766 P.2d 632,
634 (Colo. 1988); People v. Venzor, 121 P.3d 260, 262 (Colo. App.
2005); People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001).
Evidentiary support is not necessary in the Rule 35(c) motion, but
bare assertions are insufficient. See People v. Bossert, 772 P.2d
618, 620 (Colo. 1989).
¶8 The Sixth Amendment right to counsel includes the right to
effective counsel. See Strickland, 466 U.S. at 686. To prevail on an
ineffective assistance claim, the defendant must be able to show
both that (1) counsel’s performance fell below an objective standard
of reasonableness and (2) counsel’s deficient performance
prejudiced the defense. See People v. Chalchi-Sevilla, 2019 COA 75,
¶ 6 (citing Strickland, 466 U.S. at 687). To establish prejudice in
the context of plea offers and discussions, the defendant must show
an objectively reasonable probability that, but for counsel’s
unprofessional errors, he would not have pled guilty and insisted on
going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v.
Garcia, 815 P.2d 937, 943 (Colo. 1991).
¶9 Because the burden is on the defendant to satisfy both
Strickland prongs, a court may deny such a claim by concluding
4 one of the prongs has not been met without analyzing the other.
Garcia, 815 P.2d at 941-42.
III. Preservation
¶ 10 As an initial matter, the Attorney General contends that none
of Fuentes’ contentions were raised below and, thus, we should
dismiss his appeal. We agree that Fuentes’s postconviction motion
did not raise the following issues: (1) the police illegally searched his
phone without a warrant because he did not understand the waiver
of his Miranda rights; (2) his plea was involuntary because it was
motivated by the illegally obtained evidence from his phone; and
(3) trial counsel failed to show him documents supporting that the
evidence from his phone was illegally obtained. We decline to
address these issues further. DePineda v. Price, 915 P.2d 1278,
1280 (Colo. 1996) (“Issues not raised before the district court in a
motion for postconviction relief will not be considered on appeal of
the denial of that motion.”); see also People v. Wolfe, 213 P.3d 1035,
1037 (Colo. App. 2009) (same).
¶ 11 But Fuentes raised, and the court addressed and denied, his
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24CA0239 Peo v Fuentes 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0239 Boulder County District Court No. 21CR4 Honorable Nancy W. Salomone, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ely Antonio Fuentes,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE JOHNSON Welling and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Ely Antonio Fuentes, Pro Se ¶1 Defendant, Ely Antonio Fuentes (Fuentes), appeals the
postconviction court’s order denying his pro se Crim. P. 35(c)
motion without a hearing. On appeal, Fuentes contends that his
trial counsel was constitutionally deficient by failing to (1) challenge
Fuentes’ statements made after his Miranda rights were given to
him in English, as his native language is Spanish; (2) challenge the
admissibility of statements Fuentes made when speaking with the
police because the interview was conducted in English; and
(3) appropriately investigate his case. Because of this deficient
performance, Fuentes argues, he did not understand the judicial
proceedings, and, therefore, entered an involuntary guilty plea. We
affirm.
I. Background
¶2 In late December 2020, Fuentes’ significant other reported to
police that she had witnessed Fuentes digitally penetrating his five-
year-old niece’s “private parts” in the bathroom of the master
bedroom during a family gathering. She also reported witnessing
him filming his actions on his phone. Since the significant other
did not speak English, her daughter reported the incident to the
1 police, and the daughter acted as the significant other’s interpreter
when law enforcement arrived.
¶3 Fuentes is a native-Spanish speaker with limited English-
speaking skills; at the time of the investigation, however, he told
officers that he was able to understand English and responded
appropriately to the police officer’s questions and comments. The
officers told Fuentes that it was not mandatory for them to look
through his phone, but he responded that it was “good for him” and
it could be checked. The police discovered an image of a
prepubescent vagina with what appeared to be an adult hand. After
the interview, Fuentes was arrested, and his phone was seized.
¶4 Fuentes was charged with one count of sexual assault on a
child, two counts of sexual exploitation of a child, and a sentence
enhancing aggravated sex offense count. In November 2022,
Fuentes entered into a plea agreement in which the prosecution
agreed to dismiss the four counts against him in exchange for his
guilty pleas to one count of first degree assault and one count of
sexual exploitation of a child. The agreement also required Fuentes
to forfeit all seized electronics, register as a sex offender, and have
no contact with his significant other, the niece, and two other
2 involved family members. Fuentes was sentenced to fourteen years
in the custody of the Department of Corrections.
¶5 In September 2023, Fuentes filed his Crim P. 35(c) motion.
The court denied it without holding a hearing or appointing
counsel. Fuentes filed this appeal.
II. Standard of Review and Applicable Law
¶6 Postconviction rulings on ineffective assistance of counsel
claims are a mixed question of fact and law. See Strickland v.
Washington, 466 U.S. 668, 698 (1984); see also Dunlap v. People,
173 P.3d 1054, 1063 (Colo. 2007). A postconviction court’s denial
of a Rule 35(c) motion without a hearing is reviewed de novo. See
People v. McGlaughlin, 2018 COA 114, ¶ 25; People v. Smith, 2017
COA 12, ¶ 12.
¶7 A court may deny a Crim P. 35(c) motion without an
evidentiary hearing if the motion, files, and case record establish
the defendant is not entitled to relief. See Ardolino v. People, 69
P.3d 73, 77 (Colo. 2003). Thus, a summary denial of a
postconviction motion is appropriate if (1) the allegations are bare
and conclusory; (2) the allegations, even if true, do not warrant
postconviction relief; or (3) the record directly refutes the
3 defendant’s claims. See White v. Denver Dist. Ct., 766 P.2d 632,
634 (Colo. 1988); People v. Venzor, 121 P.3d 260, 262 (Colo. App.
2005); People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001).
Evidentiary support is not necessary in the Rule 35(c) motion, but
bare assertions are insufficient. See People v. Bossert, 772 P.2d
618, 620 (Colo. 1989).
¶8 The Sixth Amendment right to counsel includes the right to
effective counsel. See Strickland, 466 U.S. at 686. To prevail on an
ineffective assistance claim, the defendant must be able to show
both that (1) counsel’s performance fell below an objective standard
of reasonableness and (2) counsel’s deficient performance
prejudiced the defense. See People v. Chalchi-Sevilla, 2019 COA 75,
¶ 6 (citing Strickland, 466 U.S. at 687). To establish prejudice in
the context of plea offers and discussions, the defendant must show
an objectively reasonable probability that, but for counsel’s
unprofessional errors, he would not have pled guilty and insisted on
going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v.
Garcia, 815 P.2d 937, 943 (Colo. 1991).
¶9 Because the burden is on the defendant to satisfy both
Strickland prongs, a court may deny such a claim by concluding
4 one of the prongs has not been met without analyzing the other.
Garcia, 815 P.2d at 941-42.
III. Preservation
¶ 10 As an initial matter, the Attorney General contends that none
of Fuentes’ contentions were raised below and, thus, we should
dismiss his appeal. We agree that Fuentes’s postconviction motion
did not raise the following issues: (1) the police illegally searched his
phone without a warrant because he did not understand the waiver
of his Miranda rights; (2) his plea was involuntary because it was
motivated by the illegally obtained evidence from his phone; and
(3) trial counsel failed to show him documents supporting that the
evidence from his phone was illegally obtained. We decline to
address these issues further. DePineda v. Price, 915 P.2d 1278,
1280 (Colo. 1996) (“Issues not raised before the district court in a
motion for postconviction relief will not be considered on appeal of
the denial of that motion.”); see also People v. Wolfe, 213 P.3d 1035,
1037 (Colo. App. 2009) (same).
¶ 11 But Fuentes raised, and the court addressed and denied, his
other contentions, so we review them.
5 IV. Analysis
A. Failure to Investigate
¶ 12 We agree with the postconviction court’s conclusion that
Fuentes asserted nothing more than conclusory allegations about
his trial counsel’s failure to conduct an adequate investigation.
Other than indicating that counsel should have interviewed him
and examined police reports, Fuentes did not allege what other
investigation his counsel should have undertaken, nor did he
indicate any evidence that further investigation might have
discovered or developed. Put another way, his bare assertions do
not indicate what evidence would have been discovered had trial
counsel conducted an adequate investigation or how such evidence
would have influenced Fuentes’ decision to plead guilty. Therefore,
we agree that this claim fails to meet either Strickland prong, and
was therefore properly denied without a hearing.
B. Motion to Suppress
¶ 13 The postconviction court did not err by denying Fuentes’ claim
concerning trial counsel’s failure to file a motion challenging the
legality of Fuentes’ statements made to police because he did not
understand his rights. Broadly construing Fuentes’ argument that
6 he did not understand what police officers were saying to him
before his arrest, we affirm the postconviction court’s assessment
that, even if counsel had filed such a motion, suppressing his
statements would not have changed the outcome of Fuentes’ plea
process. See Hill, 474 U.S. at 59.
¶ 14 Even assuming such a motion had legal merit, the
postconviction court further reasoned, the statements Fuentes
made to law enforcement were not inculpatory and his conduct
leading to the more significant charges was not known to police at
the time of his arrest, so his statements were immaterial to those
charges. We agree with the postconviction court that Fuentes has
failed to make allegations sufficient to warrant relief under the
second prong of Strickland.
V. Conclusion
¶ 15 The postconviction court’s order is affirmed.
JUDGE WELLING and JUDGE GROVE concur.