24CA0319 Peo v Garcia 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0319 City and County of Denver District Court No. 22CR409 Honorable Jay S. Grant, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Justin A. Garcia,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Reclamation Law, LLC, Erin Hunn, Denver, Colorado, for Defendant-Appellant ¶1 Justin A. Garcia appeals the sentence the district court
imposed after he pleaded guilty to child abuse and assault. He
contends that the court erred by (1) denying his request for a
presentencing hearing under People v. Bergerud, 223 P.3d 686
(Colo. 2010); and (2) when sentencing him, considering factors not
contemplated in the sentencing statute. We affirm.
I. Background
¶2 The prosecution charged Garcia with twenty-three counts
based on allegations that he sexually assaulted his adolescent
daughters for more than two years. In exchange for dismissal of the
original charges, Garcia pleaded guilty to one count of child abuse
resulting in serious bodily injury and one count of second degree
assault, with a sexual factual basis for each count. As part of the
plea agreement, Garcia stipulated to a ten- to twenty-four-year
sentence in the custody of the Department of Corrections (plus
mandatory parole) and a consecutive ten-year term of sex offender
intensive supervised probation (SOISP). He also agreed to register
as a sex offender.
1 ¶3 At his providency hearing, the court accepted Garcia’s plea
and found that he entered it knowingly, intelligently, and
voluntarily. The court then set a sentencing hearing.
¶4 Approximately a week and a half before that hearing, Garcia
wrote a letter to the court saying,
I am writting [sic] you to express my concern about my Public Defenders . . . . I believe that I am being deprived of my rite [sic] to effective assistance of counsel and am requesting a Burger [sic] Hearing for the following reasons.
• Breakdown in communication, neither [public defenders] have come to visit me since the [providency hearing] except to sit in on the [offense-specific evaluation (OSE)] and [presentencing investigation (PSI)] Interview.
• I lost all confidence in [public defenders]. Sentencing is less then [sic] two weeks away and we have formed no sentence mitigation strategy.
• [Public defenders] withheld evidence in my case, victims written recantation.
¶5 The court subsequently postponed the sentencing hearing for
one month “per agreement of all parties.”
2 ¶6 At the sentencing hearing, the court acknowledged Garcia’s
letter but said that he should present the allegations in his letter
through a Crim. P. 35(c) motion following sentencing:
THE COURT: Mr. Garcia did file a motion addressing some dissatisfaction or grievances with his counsel. My thought is — My initial thought is that we continue to sentencing and then he can pursue a 35(c). So a 35(c) would be that you’d be asserting ineffective assistance of counsel, Mr. Garcia.
GARCIA: Okay.
THE COURT: And we’ll appoint alternative defense counsel to do that, but I think we can proceed though to sentencing. . . .
DEFENSE COUNSEL: I — I agree with that I guess. We are asking to continue sentencing.
THE COURT: Okay.
¶7 The court deferred sentencing Garcia again and set a new date
for the sentencing hearing. In the meantime, the court issued a
written order stating that it would appoint postconviction counsel
for Garcia and asking the Office of the Public Defender to identify
any conflicts of interest it might have in representing Garcia in
connection with a postconviction motion. Garcia’s public defenders
responded that they would have a conflict in doing so and requested
appointment of conflict-free postconviction counsel for Garcia.
3 ¶8 The court sentenced Garcia to twenty-four years in the
custody of the Department of Corrections (the maximum possible
sentence specified in the plea agreement) and ten years of SOISP.
The court found that Garcia’s alleged conduct was “outrageous” and
characterized the stipulated sentence in the plea agreement as
“gracious.” The court then said,
[T]he most important thing for me to do is fashion a sentence where when Mr. Garcia gets out of . . . prison, that [the victims] are well into their adult lives and that they’re able to take care of themselves. So I think twenty- four years is an appropriate sentence here. They’ll be . . . women of age that hopefully they’ll have . . . gotten through the trauma and will be able to take care of themselves, so I think that’s the most important thing here.
¶9 On appeal, Garcia contends that the court erred by
(1) characterizing his letter as a Crim. P. 35(c) petition rather than
as a request for a Bergerud hearing and not conducting such a
hearing, and (2) considering his daughters’ ages in fashioning
Garcia’s sentence.
II. Request for a Bergerud Hearing
¶ 10 Garcia first contends that the court erred by proceeding to
sentencing without first holding a Bergerud hearing on the concerns
4 about his counsel reflected in his letter. The People counter that
Garcia either invited the error or waived this contention.
Alternatively, the People argue that the district court properly
construed Garcia’s letter as an ineffective assistance of counsel
claim and, as such, properly postponed consideration of the issues
raised in the letter until after sentencing.
A. Invited Error and Waiver
¶ 11 The People argue that, by agreeing to the court’s proposal to
take up Garcia’s contentions in a postconviction motion, Garcia
invited the error he now asserts on appeal. We disagree.
¶ 12 “The doctrine of invited error prevents a party from
complaining on appeal of an error that he or she has invited or
injected into the case; the party must abide the consequences of his
or her acts.” People v. Rediger, 2018 CO 32, ¶ 34, 416 P.3d 893,
901. “Invited error is a narrow doctrine and applies to errors in
trial strategy but not to errors that result from oversight.” Id.
¶ 13 We hold that neither Garcia nor his counsel invited the
claimed error. The court interpreted Garcia’s pro se letter as a
request for postconviction relief under Crim. P. 35(c) and proposed
to address the issues raised in the letter through that lens.
5 Although Garcia and his counsel assented to the court’s proposal,
this plan of action was not their idea, and they did not suggest it as
a matter of strategy. See id. at ¶¶ 36-37, 416 P.3d at 902
(characterizing the “acquiescence” at issue in Horton v. Suthers, 43
P.3d 611, 619 (Colo. 2002), as a “specific admission[]” amounting to
an effective concession, and distinguishing cases where a party, by
mere oversight, generally expresses satisfaction with a proposed
course of conduct).
¶ 14 The People next contend that Garcia waived the claimed error.
We are, again, unpersuaded. Waiver is “the intentional
relinquishment of a known right or privilege.” Id. at ¶ 39, 416 P.3d
at 902 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247
(Colo. 1984)). We indulge every reasonable presumption against
waiver. Id. No evidence in the record suggests that Garcia
intentionally relinquished his request for substitute counsel before
sentencing, especially given that he conflated two legally distinct
concepts — one involving counsel’s past representation and one
involving counsel’s representation going forward — in his letter.
¶ 15 Nor does counsel’s fleeting, half-hearted approval of the court’s
proposal — which she made immediately before requesting a
6 continuance and without conferring with Garcia — reflect the kind
of informed and intentional waiver contemplated in Rediger. For
these reasons, Garcia did not waive his claim that the court erred
by sentencing him before conducting a Bergerud hearing.
B. The Nature of the Allegations Raised in Garcia’s Letter
¶ 16 In his letter, Garcia generally asserted that he had received
ineffective assistance of counsel and requested a Bergerud hearing.
But upon close scrutiny, it becomes apparent that his allegations
raised discrete — albeit related — issues that implicated two
different procedures. Because Garcia wrote the letter himself, we
read the allegations in his letter broadly. People v. Cali, 2020 CO
20, ¶ 34, 459 P.3d 516, 522 (“[W]e will broadly construe a pro se
litigant’s pleadings to effectuate the substance, rather than the
form, of those pleadings . . . .”); Bergerud, 223 P.3d at 696-97.
¶ 17 We first consider whether the three allegations in Garcia’s
letter implicated the alleged ineffective assistance of his counsel
earlier in the case or constituted a request for new counsel in
connection with his forthcoming sentencing.
¶ 18 The first two allegations were forward-looking. In those
allegations, Garcia requested new counsel before his sentencing
7 hearing for two reasons. First, he suggested that communications
with his current attorneys had broken down because they had only
visited him in custody for the OSE and PSI interview. Second,
Garcia asserted that his counsel had not yet formulated a
sentencing strategy even though the sentencing hearing was less
than two weeks away. In sum, Garcia asserted that he would
receive an unjust sentence unless the court appointed new lawyers
for him.
¶ 19 A court will typically hold a Bergerud hearing to determine
whether a substitution of counsel is required under the facts of the
case. See Bergerud, 223 P.3d at 703 (“[A] request for new counsel
necessarily implies a limited waiver of the attorney-client privilege;
the trial court must be able to inquire into the details of a dispute
between a defendant and his attorneys — outside the presence of
opposing counsel — in order to evaluate the dispute’s constitutional
character and determine whether the defendant is entitled to
replacement counsel.”).
¶ 20 Garcia appropriately requested a Bergerud hearing to address
the first two allegations in his letter, as they focused on whether his
current counsel could competently represent him at the upcoming
8 sentencing hearing. See People v. Ramcharan, 2024 COA 110, ¶ 77,
562 P.3d 425, 438 (explaining that a Bergerud hearing is intended
to “adjudicate a defendant’s assertion that his appointed attorney
cannot or will not completely represent him”). Thus, we agree with
Garcia that the court incorrectly characterized his first two
allegations as claims for postconviction relief. The court interpreted
those allegations as Crim. P. 35(c) ineffective assistance of counsel
claims rather than as Bergerud claims, in which a defendant seeks
new counsel going forward in the case. See Bergerud, 223 P.3d at
703.
¶ 21 In contrast, the third allegation in the letter — that Garcia’s
counsel withheld evidence of one or both victims’ recantation — is
fundamentally retrospective. It related to his counsel’s effectiveness
before Garcia entered into the plea agreement. Although he did not
explicitly challenge his guilty plea, Garcia’s third allegation appears
to call into question whether his guilty plea was knowingly,
intelligently, and voluntarily entered in light of his counsel’s alleged
ineffectiveness.
¶ 22 “The right to counsel is a fundamental right guaranteed by the
Sixth Amendment to the United States Constitution and is
9 considered essential to a fair trial.” People v. Rodriguez, 2022 COA
98, ¶ 62, 521 P.3d 678, 689. Because ineffective assistance claims
implicate the constitutional right to the effective assistance of
counsel, see People v. Houser, 2020 COA 128, ¶ 27, 490 P.3d 863,
870, they may be presented through a Crim. P. 35(c)(2)(I) motion.
That rule provides that an “application for postconviction review”
may be premised on the claim that the defendant’s “conviction was
obtained or sentence imposed in violation of the Constitution or
laws of the United States or the constitution or laws of this state.”
Crim. P. 35(c)(2)(I). Ineffective assistance claims are “generally not
permitted . . . on direct appeal because such a claim ordinarily
requires the development of a factual record that will not have been
developed in the trial court.” A.R. v. D.R., 2020 CO 10, ¶ 62, 456
P.3d 1266, 1281; see also People v. Kelling, 151 P.3d 650, 655
(Colo. App. 2006).
¶ 23 Thus, the court correctly determined that Garcia should raise
his third allegation through a Crim. P. 35(c) claim following
sentencing.
10 C. Although the Court Mischaracterized the Nature of Garcia’s First Two Allegations, It Nonetheless Reached the Correct Result
1. Applicable Law and Standard of Review
¶ 24 We consider four factors when determining whether a district
court erred by denying a defendant’s request for substitution of
counsel:
(1) the timeliness of the defendant’s motion;
(2) the adequacy of the court’s inquiry;
(3) whether the conflict between the defendant and his
attorney was so great that it resulted in a total lack
of communication or otherwise prevented an
adequate defense; and
(4) whether the defendant substantially and
unreasonably contributed to the conflict with his
attorney.
People v. Session, 2020 COA 158, ¶ 15, 480 P.3d 747, 752
(emphasis added).
¶ 25 Upon receiving a request for substitute counsel, a court
generally must conduct a hearing or inquire into the reasons for the
request. Id. at ¶ 18, 480 P.3d at 753. “But when a defendant’s
11 written motion describes his complaints in sufficient detail, the
court need not inquire further.” Id.; see also People v. Arko, 159
P.3d 713, 718-19 (Colo. App. 2006) (holding that further inquiry is
not needed if the defendant fully articulated his disputes with
counsel in his motion; those disputes pertained to matters of
strategy; and they did not concern “a conflict of interest, a complete
breakdown of communication[,] or an irreconcilable conflict which
leads to an apparently unjust verdict”) (citation omitted), rev’d on
other grounds, 183 P.3d 555 (Colo. 2008). “We review a district
court’s denial of a defendant’s request for substitution of counsel
for an abuse of discretion.” Rodriguez, ¶ 61, 521 P.3d at 689.
¶ 26 Further, we will not reverse a district court’s decision if the
court “reache[d] the correct result although by an incorrect
analysis.” People v. Quintana, 882 P.2d 1366, 1375 (Colo. 1994),
abrogated on other grounds by Rojas v. People, 2022 CO 8, 504 P.3d
296; see also People v. Garcia, 2012 COA 79, ¶ 62, 296 P.3d 285,
293 (“We may affirm . . . on any ground that is supported by the
record.”); People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)
(holding that an appellate court may affirm a district court’s ruling
on different grounds).
12 2. Analysis
¶ 27 Although the court mischaracterized the first two claims in
Garcia’s letter, it nonetheless reached the correct result on those
two allegations because Garcia’s request for substitute counsel
failed as a matter of law. An indigent criminal defendant has a
constitutional right to counsel, but he does not “have the right to
demand a particular attorney.” Session, ¶ 14, 480 P.3d at 752.
Thus, “[b]efore change of counsel is warranted[,] the trial court
must verify that the defendant has ‘some well founded reason for
believing that the appointed attorney cannot or will not completely
represent him.’” Ramcharan, ¶ 85, 562 P.3d at 439 (quoting People
v. Arguello, 772 P.2d 87, 94 (Colo. 1989)). “[A] court isn’t required
to substitute counsel unless a defendant establishes ‘good cause,
such as a conflict of interest, a complete breakdown of
communication[,] or an irreconcilable conflict which leads to an
apparently unjust verdict.’” Session, ¶ 14, 480 P.3d at 752 (quoting
Arguello, 772 P.2d at 94).
¶ 28 In the first allegation, Garcia alleged a breakdown in
communication — a recognized justification for substitution of
counsel. See id. But he admitted that counsel attended his OSE
13 and PSI interview. Garcia’s first allegation thus fails under Session
because he did not allege a conflict “so great that it resulted in a
total lack of communication.” Id. at ¶ 15, 480 P.3d at 752
(emphasis added); see also People v. Faussett, 2016 COA 94M, ¶ 24,
409 P.3d 477, 483 (holding that a total breakdown in
communication means such minimal contact with the attorney that
meaningful communication was not possible); People v. Johnson,
2016 COA 15, ¶ 32, 381 P.3d 348, 355 (holding that an allegation
of “infrequent visits from counsel” is insufficient to establish a
complete breakdown in communication).
¶ 29 Garcia’s second allegation in his letter similarly fails as a
matter of law. Garcia asserted in that allegation that his counsel
had not yet formulated a mitigation strategy for sentencing, even
though the sentencing hearing was less than two weeks away. But
counsel had more than a week to develop such a strategy and,
critically, Garcia did not allege that he had any reason to believe
that the attorneys would not be prepared by the time of the
sentencing hearing.
¶ 30 It was the sole responsibility of Garcia’s attorneys to determine
when and how they would prepare for the sentencing hearing.
14 “Defense counsel stands as captain of the ship in ascertaining . . .
what strategy should be employed in the defense of the case.” Arko,
183 P.3d at 558 (quoting Steward v. People, 498 P.2d 933, 934
(Colo. 1972)). Garcia’s lack of confidence in counsel’s preparedness
in the weeks before sentencing did not amount to the type of
conflict of interest, complete breakdown in communication, or
irreconcilable conflict that warrants substitution of sentencing
counsel. See Session, ¶ 15, 480 P.3d at 752.
¶ 31 In sum, the court reached the correct result by rejecting the
first two allegations in Garcia’s letter.
D. The Third Allegation in Garcia’s Letter
¶ 32 Although Garcia did not explicitly challenge his guilty plea in
the third allegation in his letter, in that allegation, Garcia appeared
to assert that he had not knowingly, intelligently, and voluntarily
entered into the plea agreement because of his counsel’s alleged
ineffectiveness. As explained, supra Part II.B, these types of
retrospective ineffective assistance of counsel arguments are
properly presented in Crim. P. 35(c) motions.
¶ 33 Thus, the court correctly determined that Garcia should raise
his third allegation through a Crim. P. 35(c) claim following his
15 sentencing. See A.R., ¶ 62, 456 P.3d at 1281; Kelling, 151 P.3d at
655.
III. Sentencing Considerations
¶ 34 Finally, Garcia asserts that, in fashioning his sentence, the
court erred by considering factors not contemplated in the
sentencing statute. The People counter that Garcia challenges the
propriety of his sentence, which, on these facts, we may not review.
We agree with the People.
¶ 35 “When a sentence is imposed upon any person following a
conviction of any felony, . . . the person convicted shall have the
right to one appellate review of the propriety of the sentence.”
§ 18-1-409(1), C.R.S. 2024. But where, as here, “the sentence is
within a range agreed upon by the parties pursuant to a plea
agreement, the defendant shall not have the right of appellate
review of the propriety of the sentence.” Id.
¶ 36 “‘[T]he propriety of the sentence,’ as that phrase is used in
[section 18-1-409(1)], does not comprehend the manner in which
the sentence was imposed (i.e., the propriety of the sentencing
proceeding).” Sullivan v. People, 2020 CO 58, ¶ 4, 465 P.3d 25, 27.
16 Thus, the statute does not bar appeals concerning the manner in
which a sentence was imposed. Id. at ¶¶ 4, 17, 465 P.3d at 27, 30.
¶ 37 “Illegal sentences should not be confused with sentences
imposed in an illegal manner.” Tennyson v. People, 2025 CO 31,
¶ 29, 569 P.3d 815, 823. Illegal sentence claims — claims
challenging the propriety of a sentence — implicate the “intrinsic
fairness or appropriateness of the sentence itself taking into
account ‘the nature of the offense, the character of the offender, and
the public interest.’” Sullivan, ¶ 13, 465 P.3d at 28-29 (quoting
People v. Malacara, 606 P.2d 1300, 1302-03 (Colo. 1980)); see also
Tennyson, ¶¶ 25-27, 569 P.3d at 823. In contrast, illegal manner
claims — claims challenging the propriety of the sentencing
proceeding — involve “extrinsic factors and procedures which affect
the determination of the sentence,” including “the sufficiency and
accuracy of the information on which the sentence was based.”
Sullivan, ¶ 13, 465 P.3d at 29 (quoting Malacara, 606 P.2d at 1303);
see also Tennyson, ¶ 29, 569 P.3d at 823.
¶ 38 On appeal, Garcia argues that the sentencing court “did not
balance the many facets of sentencing” set out in section
18-1-102.5, C.R.S. 2024, including “a lot of mitigation.” He asserts
17 that, instead, the court “imposed the maximum sentence per the
plea agreement entirely based on how old the victims would be
when Mr. Garcia would be released from the Department of
Corrections.”
¶ 39 We conclude that Garcia challenges the propriety of his
sentence. He contests the intrinsic fairness or appropriateness of
the sentence, rather than alleging a defect in the “extrinsic factors
and procedures” or the imposition of a sentence without adequate
underlying information. Accordingly, we hold that section
18-1-409(1) precludes us from reviewing this contention.
IV. Disposition
¶ 40 The sentence is affirmed.
JUDGE PAWAR and JUDGE LUM concur.