Peo v. Gray

• Court: Colorado Court of Appeals
• Decided: March 27, 2025
• Docket: 24CA0465
• Status: Unpublished

Opinion

24CA0465 Peo v Gray 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0465 Mesa County District Court No. 18CR1089 Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ronald Gray,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

M. Linton Wright, Alternate Defense Counsel, Lafayette, Colorado, for Defendant-Appellant ¶1 Defendant, Ronald Gray, appeals the postconviction court’s

order denying his Crim. P. 35(c) motion without a hearing. We

affirm.

I. Background

¶2 The People charged Gray with second degree kidnapping,

second degree assault, attempt to influence a public servant,

forgery, and criminal impersonation based on evidence of the

following events. Gray and his girlfriend, C.T., were parked on the

shoulder of a highway when Mesa County Sheriff’s Deputy

Benjamin Garner approached to see if they were okay. Gray

provided Garner with a false name and identification and signed a

summons using that false name. Garner saw the couple arguing

before he left the area.

¶3 Gray then walked to get gas while C.T. waited on an

embankment near their parked car. Upon his return, Gray dragged

C.T. by her hair, kicked and struck her in the face and ribs, forced

her into the car, and drove her to Utah against her will. The next

day, someone noticed C.T.’s injuries at a gas station and called the

police. Upon their arrival, police requested an ambulance for C.T.,

1 who was later diagnosed with several rib fractures, a collapsed

lung, and other injuries.

¶4 While awaiting trial, Gray was charged in a second case based

on several jail-recorded phone calls in which he urged C.T. to

change her story or avoid testifying in this case. Gray was

represented by a series of six defense attorneys during this time.

The sixth attorney, Joshua Martin, represented Gray beginning in

September 2019. In January 2020, Gray’s second case proceeded

to trial, and a jury found him guilty of six counts of witness

tampering and eight counts of violating a protection order.

¶5 In February 2020, Gray pleaded guilty in this case to second

degree assault causing serious bodily injury (SBI) — a crime with a

presumptive sentencing range of five to sixteen years in the custody

of the Department of Corrections (DOC). See § 18-3-203(1)(g),

C.R.S. 2024 (defining second degree assault – SBI); see also

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

§ 18-1.3-406(2)(a)(II)(C), C.R.S. 2024. In exchange, the People

agreed to dismiss all remaining charges — kidnapping, forgery, and

2 criminal impersonation — and stipulated to a reduced DOC

sentencing range of five to eight years.1

¶6 During Gray’s sentencing hearing, Martin called an addiction-

recovery program director to testify on Gray’s behalf. Martin argued

for a DOC sentence of five or six years based on Gray’s commitment

to the recovery program, his cooperation with law enforcement

while in jail, the difficulties of family visitation given that they live

far away, and the low likelihood of reoffending due to his advanced

age. The district court imposed a sentence of seven years in DOC

custody.

¶7 Gray timely filed a pro se Crim. P. 35(c) motion claiming,

among other things, that five of his defense attorneys had provided

ineffective assistance. The postconviction court forwarded the

motion to the public defender and to the prosecution. Alternate

defense counsel entered his appearance and supplemented Gray’s

pro se motion, asserting three ineffective assistance claims. The

prosecution responded that the claims in the motion and

supplement were vague, conclusory, and failed to allege prejudice.

1 The court dismissed Gray’s attempt to influence charge after the

preliminary hearing.

3 In a written order, the district court agreed with the prosecution

and denied the motion without granting an evidentiary hearing.

II. Discussion

¶8 Gray contends on appeal that the postconviction court erred

by summarily denying his Rule 35(c) motion because he alleged

sufficient facts to warrant an evidentiary hearing on certain

ineffective assistance claims. Namely, he asserts that defense

counsel failed to adequately (1) investigate; (2) present mitigation

evidence at sentencing; and (3) communicate about or provide him

with discovery. We conclude that the district court properly denied

these claims without a hearing.

A. Standard of Review and Applicable Law

¶9 We review de novo a postconviction court’s decision to deny a

Crim. P. 35(c) motion without a hearing. People v. Higgins, 2017

COA 57, ¶ 11.

¶ 10 A defendant need not provide evidence for the allegations in

his motion, but he must assert facts that would provide a basis for

relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). To

seek relief based on a claim of ineffective assistance of counsel, a

defendant must allege facts that, if true, would show that

4 (1) defense counsel’s performance was deficient, and (2) this

deficient performance prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To allege prejudice in the

context of a guilty plea, a defendant must assert facts showing a

reasonable probability that, but for counsel’s deficient performance,

he would not have pleaded guilty and would have 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); People v. Sifuentes, 2017

COA 48M, ¶ 20.

¶ 11 When, as here, the postconviction court does not deny the

motion under Crim. P. 35(c)(3)(IV), it must grant a hearing after the

prosecution’s response “unless, based on the pleadings, the court

finds that it is appropriate to enter a ruling containing written

findings of fact and conclusions of law.” Crim. P. 35(c)(3)(V); see

People v. Chalchi-Sevilla, 2019 COA 75, ¶ 26 (holding that the court

may deny a hearing in these circumstances when it concludes that

the claims lack sufficient factual grounds for relief); see also

People v. Segura, 2024 CO 70, ¶ 26 n.8. If the pleadings fail to

allege particularized facts for either Strickland prong, the court may

deny the claim without a hearing. Ardolino v. People, 69 P.3d 73,

5 77 (Colo. 2003); see also People v. Esquibel-Alaniz, 985 P.2d 22, 25

(Colo. App. 1999).

B. Inadequate Investigation Claim

¶ 12 Gray’s motion and supplement claim that defense counsel

failed to adequately investigate alternative suspects, C.T.’s criminal

history, C.T.’s impairment due to drug use, and possible mitigation

witnesses. A defendant claiming that counsel provided ineffective

assistance by conducting an inadequate investigation must explain

with sufficient specificity what additional investigative steps counsel

should have taken, what the results of those efforts would have

been, and how they would have affected the outcome of the case.

See People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003).

¶ 13 Gray alleged that counsel’s investigation was inadequate

based on the following failures:

• Regarding an alternative suspect for the assault charge,

counsel failed to investigate “a possible female suspect” of

Native-American or Hispanic descent who could have been

responsible for C.T.’s injuries or to follow up with a lead

who could have helped locate the suspect.

6 • Regarding C.T.’s criminal history, counsel withheld C.T.’s

criminal records, including active out-of-state warrants and

drug crimes, from him.

• Regarding C.T.’s drug use, counsel failed to investigate a

toxicology report from C.T.’s emergency room visit that

would have shown that C.T. had recently used

methamphetamine.

• And regarding mitigation evidence, Gray alleged that Martin

did not interview family witnesses for sentencing mitigation

purposes.

¶ 14 We agree with the postconviction court that Gray failed to

sufficiently allege deficient performance as to witness interviews

because he did not identify which witnesses should have been

interviewed or describe what information they would have provided.

See People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007) (“A trial

court may also deny relief where the allegations of counsel’s

deficient performance are merely conclusory, vague, or lacking in

detail.”). We also conclude that Gray did not sufficiently allege

Strickland prejudice for any of his inadequate investigation claims

because he did not explain how any evidence that counsel could

7 have turned up would have affected the outcome of the case. In

other words, he did not allege facts showing a reasonable

probability that, but for counsel’s inadequate investigation, he

would not have pleaded guilty and would have insisted on going to

trial. See Garcia, 815 P.2d at 943; People v. Stovall, 2012 COA 7M,

¶ 29. We note that the alleged investigative deficiencies pertain

primarily to Gray’s assault charge, and if Gray had proceeded to

trial, he faced a DOC sentence of up to thirteen and a half years on

his kidnapping, forgery, and impersonation charges alone.

¶ 15 As best we can determine from the motion and supplement,

Gray’s only allegations relevant to the issue of prejudice were that

(1) unspecified evidence “would have exonerated [him] or possibly

changed the outcome of [his] cases”; and (2) if Martin had

interviewed “witnesses” and “learned the content of what

information they could provide,” the outcome of his case “may have

been [a]ffected.” These vague and conclusory allegations are not

enough to plead prejudice under Strickland. See, e.g., People v.

Melendez, 2024 COA 21M, ¶¶ 34-35 (affirming the summary denial

of an ineffective assistance claim that did not allege specific facts to

explain how the result would have been different if defense counsel

8 had interviewed and elicited testimony from a certain witness).

Accordingly, we conclude that the postconviction court properly

denied this claim without a hearing. See Ardolino, 69 P.3d at 77.

C. Mitigation Claim

¶ 16 Next, Gray claims that Martin failed to present adequate

mitigation evidence at sentencing. Gray’s supplemental motion

baldly alleged that Martin’s performance was deficient because he

failed to present unnamed character witnesses, to contact or

present statements from “family members,” and to present evidence

of his “mental health, substance abuse needs, or any other

collateral mitigation.” But Gray did not specify who might have

been called, what statements or evidence might have been

presented, or how that mitigation would have changed the district

court’s decision on his sentence. We agree with the postconviction

court that this vague and conclusory claim does not merit a

hearing. See Osorio, 170 P.3d at 799.

D. Discovery Communication Claim

¶ 17 Gray claims that Martin’s performance was deficient because

he failed to communicate about discovery — specifically, all of his

jail-recorded phone calls, the forensic evidence, and the forensic lab

9 report — or make that evidence available for his review. Gray

explained that Martin disclosed only ten jail-recorded phone calls

out of the approximately fifty calls he made to C.T. And he specified

that Martin withheld forensic and photographic evidence showing

that he did not have wounds, blood spatter, or C.T.’s DNA on him at

the time of his arrest.

¶ 18 Taking these allegations as true and assuming, without

deciding, that Martin’s performance was deficient as to sharing this

evidence with Gray, we cannot conclude that Gray sufficiently

alleged Strickland prejudice. He alleged that he “would have elected

to pursue different options in this case” if he had been able to

review discovery, but once again, he did not explain how his

consideration of the missing phone calls or forensic evidence would

have affected his decision to plead guilty rather than proceed to

trial. See Garcia, 815 P.2d at 943. Because Gray did not

sufficiently allege prejudice under Strickland, we conclude that the

postconviction court properly denied this claim without a hearing.

See Ardolino, 69 P.3d at 77.

10 E. Final Considerations

¶ 19 Gray’s opening brief adds substantial context to his

inadequate investigation claim, alleging that Martin inadequately

investigated “impeachment evidence” and elaborating on how this

evidence could have undermined C.T.’s credibility at trial. The brief

also adds that Martin unreasonably failed to investigate mitigation

factors because he did not seek a mental health evaluation. And it

alleges for the first time that there was a “breakdown in

communication” between Gray and Martin. We do not address

these allegations because they were not presented to the district

court. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996)

(“Allegations not raised in a Crim. P. 35(c) motion . . . and thus not

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

review.”); see also People v. Rodriguez, 914 P.2d 230, 251 (Colo.

1996) (rejecting the defendant’s “attempts to use his brief on . . .

appeal to fortify a number of issues inadequately raised or

supported by his [postconviction] motion”).

¶ 20 Moreover, we do not address any of the numerous claims

raised in the pro se Crim. P. 35(c) motion but not discussed on

11 appeal; we deem those claims abandoned. See People v. Delgado,

2019 COA 55, ¶ 9 n.3.

III. Disposition

¶ 21 The order is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.