22CA1723 Peo v Hagos 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1723 City and County of Denver District Court No. 00CR3603 Honorable Christopher J. Baumann, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Abraham Hagos,
Defendant-Appellant.
ORDERS AFFIRMED
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant- Appellant ¶1 Defendant, Abraham Hagos, appeals the postconviction court’s
orders denying his pro se Crim. P. 35(c) motion for postconviction
relief (as supplemented by counsel), his Crim. P. 35(c) motion for a
proportionality review, and his Crim. P. 35(a) motion to correct an
illegal sentence. We affirm the orders.1
I. Background
¶2 In 2002, a jury convicted Hagos of first degree kidnapping,
first degree burglary, felony menacing, and conspiracy to commit
second degree kidnapping, first degree burglary, and felony
menacing. The trial court sentenced him to life in the custody of
the Department of Corrections without the possibility of parole.
¶3 Hagos appealed his conviction, and a division of this court
affirmed. See People v. Hagos, (Colo. App. No. 03CA0315, Dec. 8,
2005) (not published pursuant to C.A.R. 35(f)) (Hagos I).
1 Hagos’s counsel improperly formatted citations to the record in
the opening brief by removing spaces, artificially lowering the word count. This violated C.A.R. 28(e) and the Court of Appeals Policy on Citation to the Record, https://perma.cc/NU53-ZBFQ. We explicitly disapprove of that practice and expect that it won’t happen again. 1 ¶4 In 2006, Hagos filed a pro se Crim. P. 35(c) motion for
postconviction relief. He asserted, among other things, that the
prosecution presented insufficient evidence to sustain his first
degree kidnapping conviction and that inconsistencies between the
first degree kidnapping and felony menacing verdicts resulted in an
infirm conviction. The postconviction court summarily denied the
motion, and Hagos appealed through counsel. Postconviction
appellate counsel raised four arguments on appeal, none of which
challenged the evidence’s sufficiency or the first degree kidnapping
and felony menacing verdicts’ consistency. A division of this court
affirmed. See People v. Hagos, (Colo. App. No. 07CA0902, May 13,
2010) (not published pursuant to C.A.R. 35(f)), aff’d, 2012 CO 63.
¶5 In 2019, Hagos filed another pro se Crim. P. 35(c) motion for
postconviction relief. Through new counsel, he filed a supplemental
Crim. P. 35(c) motion two years later, asserting that postconviction
appellate counsel provided ineffective assistance by failing to argue,
in the appeal of the postconviction court’s denial of Hagos’s first
Crim. P. 35(c) motion, that the prosecution presented insufficient
evidence to sustain Hagos’s first degree kidnapping conviction and
2 that inconsistencies between the first degree kidnapping and felony
menacing verdicts and between the first degree kidnapping and
conspiracy to commit second degree kidnapping verdicts resulted in
an infirm conviction for first degree kidnapping. Counsel also
moved for (1) an abbreviated and extended proportionality review
under Crim. P. 35(c), asserting that Hagos’s life without parole
sentence is grossly disproportionate to his first degree kidnapping
conviction; and (2) correction of an illegal sentence under Crim. P.
35(a), asserting that Colorado law doesn’t authorize Hagos’s
sentence.
¶6 In separate orders, the postconviction court summarily denied
the supplemental Crim. P. 35(c) motion regarding postconviction
appellate counsel, the Crim. P. 35(c) motion for a proportionality
review, and the Crim. P. 35(a) motion to correct an illegal sentence.
Hagos appeals all three orders.
II. Standard of Review and Applicable Law
¶7 We review de novo a postconviction court’s summary denial of
a Crim. P. 35(c) motion. People v. Higgins, 2017 COA 57, ¶ 11. A
court may deny a Crim. P. 35(c) motion without a hearing when (1)
3 the motion, files, and record clearly establish that the defendant
isn’t entitled to relief; (2) the allegations, even if true, don’t provide a
basis for relief; or (3) the claims are bare and conclusory in nature
and lack supporting factual allegations. Id. at ¶ 4; see also Crim.
P. 35(c)(3)(IV).
¶8 We also review de novo the postconviction court’s summary
denial of a Crim. P. 35(a) motion to correct an illegal sentence. See
People v. Bassford, 2014 COA 15, ¶ 20. “A sentence that is
inconsistent with the statutory sentencing scheme outlined by the
General Assembly is illegal.” People v. Hard, 2014 COA 132, ¶ 46.
III. Postconviction Appellate Counsel
¶9 Hagos first contends that the postconviction court erred by
summarily denying his supplemental Crim. P. 35(c) motion
regarding postconviction appellate counsel. We disagree.
A. Applicable Law
¶ 10 A defendant has a limited statutory right to effective
assistance of postconviction counsel. Silva v. People, 156 P.3d
1164, 1168-69 (Colo. 2007). To succeed on an ineffective
assistance of counsel claim concerning trial, appellate, or
postconviction counsel, the defendant must show by a 4 preponderance of the evidence that (1) his counsel’s performance
was deficient and (2) the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Dunlap v.
People, 173 P.3d 1054, 1061-62 (Colo. 2007); Silva, 156 P.3d at
1169. If the defendant doesn’t satisfy both prongs, the claim fails.
Strickland, 466 U.S. at 697.
B. Analysis
¶ 11 In his motion, Hagos asserted that postconviction appellate
counsel provided ineffective assistance by failing to argue, in the
appeal of the denial of Hagos’s first Crim. P. 35(c) motion, that the
prosecution presented insufficient evidence to sustain his first
degree kidnapping conviction, and that inconsistencies between the
first degree kidnapping and felony menacing verdicts and between
the first degree kidnapping and conspiracy to commit second degree
kidnapping verdicts resulted in an infirm conviction for first degree
kidnapping.
¶ 12 The postconviction court ruled that these claims are
procedurally barred under Crim. P. 35(c)(3)(VII), which provides that
“[t]he court shall deny any claim that could have been presented in
5 an appeal previously brought or postconviction proceeding
previously brought.”
¶ 13 Hagos asserts that the court’s ruling is “nonsensical” because
“[i]t is impossible to assert ineffective postconviction counsel claims
until the conclusion of the postconviction proceedings.” See People
v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002). But even if he were
correct on the issue of successiveness as it applies to postconviction
appellate counsel, that would only get him so far. He fails to grasp
that, had postconviction appellate counsel raised these claims,
Crim. P. 35(c)(3)(VII) would have barred them as successive because
Hagos could have raised them on direct appeal. See People v.
Vondra, 240 P.3d 493, 494 (Colo. App. 2010) (under Crim.
P. 35(c)(3)(VII), a court must deny any claim that could have been
raised in a prior appeal).
¶ 14 Hagos’s argument might carry more weight if he had claimed
that postconviction appellate counsel failed to argue that trial
counsel — or even appellate counsel on direct appeal — provided
ineffective assistance by not challenging the evidence’s sufficiency
and the verdicts’ consistency. See Crim. P. 35(c)(3)(VIII)
6 (“Notwithstanding [Crim. P. 35(c)(3)(VII)], the court shall not deny a
postconviction claim of ineffective assistance of trial counsel on the
ground that all or part of the claim could have been raised on direct
appeal.”). But Hagos didn’t make such a claim. He merely claimed
that postconviction appellate counsel failed to challenge the
evidence’s sufficiency and the verdicts’ consistency in the appeal of
the denial of his first Crim. P. 35(c) motion. As noted, had
postconviction appellate counsel raised such challenges, this court
would have found them barred under Crim. P. 35(c)(3)(VII).
Therefore, postconviction appellate counsel couldn’t have provided
ineffective assistance by failing to raise them.
¶ 15 We reject Hagos’s argument that, because Crim. P.
35(c)(3)(VII)’s procedural bar didn’t take effect until two months
after he had directly appealed his conviction, this allowed him to
wait until a postconviction proceeding to assert his claims. As the
People point out, the Colorado Supreme Court adopted the relevant
amendments to Crim. P. 35 four months before Hagos’s counsel
filed the opening brief on direct appeal. See Rule Change 2004(2),
Colorado Rules of Criminal Procedure (Amended and Adopted by
7 the Court En Banc, Jan. 29, 2004), https://perma.cc/R9YQ-CT55.
Counsel thus could reasonably have believed when filing the
opening brief on direct appeal that Crim. P. 35, as amended, would
preclude Hagos from waiting until a postconviction proceeding to
raise claims that he could have raised in his direct appeal. See
People v. Walton, 167 P.3d 163, 167 (Colo. App. 2007) (concluding
that Crim. P. 35(c)(3)(VII) barred the defendant’s postconviction
claim because he didn’t raise it on direct appeal, even though the
opening brief in his direct appeal had been filed more than one year
before Crim. P. 35’s changes took effect). And postconviction
appellate counsel could therefore have reasonably decided that any
claim of ineffective assistance on this basis would go nowhere.
¶ 16 In any event, even if it was unclear whether Crim. P.
35(c)(3)(VII) would have barred Hagos’s claims, Hagos can’t
demonstrate that postconviction appellate counsel’s failure to raise
them amounted to ineffective assistance because the claims are
meritless.
¶ 17 In support of his insufficient evidence claim, Hagos argues
that the prosecution presented insufficient evidence to prove that
8 he forcibly seized and carried the victim and the victim suffered
bodily injury. See § 18-3-301(1)(a), C.R.S. 2024 (a person commits
first degree kidnapping by “[f]orcibly seiz[ing] and carr[ying] any
person from one place to another” with the requisite intent); § 18-3-
301(2), C.R.S. 2024 (“Whoever commits first degree kidnapping is
guilty of a class 1 felony if the person kidnapped shall have suffered
bodily injury.”).
¶ 18 Reviewing this issue de novo, see People v. Harrison, 2020 CO
57, ¶ 31, we conclude that substantial evidence in the record
supports Hagos’s first degree kidnapping conviction. The
prosecution presented sufficient evidence to prove that Hagos,
either personally or as a complicitor, forcibly seized and carried the
victim from one place to another.2 That a division of this court
concluded that the trial court erroneously instructed the jury that it
could find Hagos guilty of first degree kidnapping if he “forcibly, or
otherwise, seized and carried any person from one place to
another,” doesn’t render the evidence of force insufficient, as Hagos
2 The trial court instructed the jury that it could find Hagos guilty of
first degree kidnapping as a complicitor. 9 suggests. Rather, the division reasoned that the erroneous jury
instruction wasn’t plain error because the evidence of force was
overwhelming:
[T]he record contains overwhelming, undisputed evidence that B.L. was seized and carried from his apartment by force. He was beaten, hit with a gun, threatened with a gun, handcuffed, and ordered to walk to a car, which took him away from his apartment at gunpoint. It is also undisputed that the goal of these acts was to obtain B.L.’s cooperation in locating his brother, R.L. Further, the record shows that this entire scenario was planned and directed by [Hagos]. Testimony from a number of witnesses shows that [Hagos] organized the raid on B.L.’s apartment and offered others a reward to help him locate his missing money and drugs. . . .
Accordingly, because the record contains overwhelming and undisputed evidence of [Hagos]’s participation in the forcible removal of B.L. from his apartment, we conclude the addition of the language “or otherwise” did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the conviction.
Hagos I, slip op. at ¶¶ 17-18.
¶ 19 The prosecution also presented sufficient evidence to prove
that the victim suffered bodily injury as a result of the kidnapping.
The jury heard testimony that Hagos and his friend took a gun and
10 leather whip into a bathroom, where they hit and whipped the
victim. Afterwards, the victim looked “beat up” and “bruised,” and
blood covered “his eyes, nose, and . . . head.”
¶ 20 Hagos asks us to disregard this evidence because “such
testimony came from witnesses who were either co-defendants or
uncharged participants testifying for immunity, leniency, and self-
preservation” and the record contains exculpatory evidence. But
“the determination of the credibility of witnesses is solely within the
province of the jury[,] . . . [and] the trial court may not serve as a
thirteenth juror and determine what specific weight should be
accorded to various pieces of evidence or by resolving conflicts in
the evidence.” People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999);
see Harrison, ¶ 33 (in reviewing a sufficiency of the evidence
challenge, we may not consider whether we might have reached a
different conclusion than that of the jury or invade the jury’s
province by second-guessing any findings that are supported by the
evidence).
¶ 21 Because the prosecution presented sufficient evidence to
sustain his first degree kidnapping conviction, Hagos can’t prove
11 that counsel provided ineffective assistance by not challenging the
sufficiency of the evidence in the appeal of the denial of his first
postconviction motion.
¶ 22 Hagos raises two arguments in support of his inconsistent
verdicts claim: (1) the first degree kidnapping and felony menacing
verdicts are inconsistent; and (2) the first degree kidnapping and
conspiracy to commit second degree kidnapping verdicts are
inconsistent.
¶ 23 We review de novo whether verdicts are inconsistent. People v.
Delgado, 2019 CO 82, ¶ 13. Although it isn’t necessary for a guilty
verdict and a not guilty verdict to be consistent, two legally and
logically inconsistent guilty verdicts can’t stand. Id. at ¶¶ 14, 20.
Verdicts are legally and logically inconsistent where an element of
one offense negates a necessary element of the other. Id. at ¶ 20.
In making this determination, we review the evidence presented at
trial and ask “whether the jury had to rely on identical evidence in
producing two apparently inconsistent conclusions.” People v. Frye,
872 P.2d 1316, 1318 (Colo. App. 1993), aff’d, 898 P.2d 559 (Colo.
1995).
12 ¶ 24 The jury convicted Hagos of first degree kidnapping as a class
1 felony, which, as discussed, required the jury to find beyond a
reasonable doubt that the victim suffered bodily injury. See § 18-3-
301(2); see also People v. Hines, 572 P.2d 467, 470 (Colo. 1977) (“To
support a finding of bodily injury the prosecution must prove that
at least some physical pain, illness or physical or mental
impairment, however slight, was caused by the kidnapper.”). The
jury also convicted Hagos of felony menacing, a lesser included
offense of second degree assault. While a person commits second
degree assault by causing bodily injury to another person by means
of a deadly weapon and with intent to cause such injury, § 18-3-
203(1)(b), C.R.S. 2024, a person commits felony menacing “if, by
any threat or physical action, he or she knowingly places or
attempts to place another person in fear of imminent serious bodily
injury,” § 18-3-206, C.R.S. 2024. The trial court instructed the jury
to determine Hagos’s guilt as to second degree assault (the charged
offense) before considering his guilt as to felony menacing (the
lesser included offense).
13 ¶ 25 Hagos’s argument goes as follows. The key difference between
second degree assault and felony menacing is causation of bodily
injury; by finding Hagos guilty of felony menacing but not guilty of
second degree assault, the jury determined that he hadn’t caused
bodily injury to the victim. This determination creates ambiguity in
the first degree kidnapping verdict because, by finding Hagos guilty
of first degree kidnapping, the jury determined that he had caused
bodily injury to the victim.
¶ 26 This argument fails for several reasons. First, no element of
first degree kidnapping negates a necessary element of felony
menacing, so the verdicts are legally and logically consistent. See
Delgado, ¶ 20. Conceivably, one may commit both offenses by
knowingly placing a person in fear of serious bodily injury, see § 18-
3-206, while forcibly seizing and carrying the person from one place
to another, see § 18-3-301(1)(a), and, in doing so, cause bodily
injury to the person, see § 18-3-301(2). And contrary to Hagos’s
argument, the elements of first degree kidnapping and felony
menacing don’t conflict merely because one offense requires
causation of bodily injury and the other doesn’t. See Margerum v.
14 People, 2019 CO 100, ¶ 29 (“[T]he crimes of assault and menacing
have different elements and address different forms of harm that,
significantly, are not inconsistent. A person could commit both
crimes, and implicate both harms, in the same physical action
without an inconsistent finding by the fact finder. In other words, a
consistent factual basis can establish that someone caused bodily
injury to another while also knowingly placing the person in fear of
serious bodily injury.”); cf. Delgado, ¶¶ 27-28 (The defendant’s
robbery and theft convictions were inconsistent because the jury
found that he committed robbery by “tak[ing] anything of value from
the person or presence of another by the use of force, threats, or
intimidation” and that he committed theft “from the person of
another by means other than the use of force, threat, or
intimidation.”) (citations omitted).
¶ 27 Second, we aren’t convinced that, by acquitting Hagos of
second degree assault before convicting him of felony menacing, the
jury necessarily determined that Hagos didn’t cause the victim
bodily injury. Acquittals tell us very little about the jury’s thought
process. The jury could have found that Hagos caused the victim
15 bodily injury but that, instead of having intended to cause bodily
injury, he had intended only to place the victim in fear of imminent
serious bodily injury. Or the jury could have acquitted Hagos of
second degree assault as a result of lenity, which only inures to his
benefit. See id. at ¶ 25 (Inconsistent guilty and not guilty verdicts
may be upheld “because the verdicts could have been the result of
‘mistake, compromise, or lenity[.]’ In other words, ‘[t]he most that
can be said . . . is that the verdict shows that either in the acquittal
or the conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the defendant’s
guilt.’” (quoting United States v. Powell, 469 U.S. 57, 63, 65 (1984))).
¶ 28 Third, the jury may have convicted Hagos of first degree
kidnapping and felony menacing based on different evidence. In
closing argument, the prosecutor argued that Hagos menaced the
victim with a gun in the bedroom of the victim’s apartment. Hagos
and his friends then carried the victim to another apartment. In
the bathroom of this other apartment, Hagos beat the victim while
demanding to know the money’s location. Therefore, the jury could
have found Hagos guilty of felony menacing based on what occurred
16 at the victim’s apartment and of first degree kidnapping based on
what occurred later. See People v. Corpening, 837 P.2d 249, 251-52
(Colo. App. 1992) (the defendant’s contributing to the delinquency
of a minor and second degree forgery verdicts weren’t inconsistent
because different evidence supported them); see also People v.
Scearce, 87 P.3d 228, 232 (Colo. App. 2003) (“If the verdicts are
consistent in any view of the evidence, the presumption is that the
jury took that view.”).
¶ 29 In sum, we aren’t convinced that Hagos’s first degree
kidnapping and felony menacing verdicts are inconsistent,
warranting reversal. Therefore, Hagos can’t show that
postconviction appellate counsel’s failure to raise this argument
amounted to ineffective assistance under Strickland.
¶ 30 Hagos also argues that the first degree kidnapping and
inconsistent. Because he didn’t make this argument in his first
Crim. P. 35(c) motion, postconviction appellate counsel can’t have
been ineffective by not raising it in the appeal of the postconviction
court’s denial of that motion. See People v. Stovall, 2012 COA 7M,
17 ¶ 3 (ineffective assistance claims not raised in a Crim. P. 35(c)
motion aren’t properly preserved and can’t be raised for the first
time on appeal).
IV. Proportionality Review
¶ 31 Hagos next contends that the postconviction court erred by
summarily denying his Crim. P. 35(c) motion for an abbreviated and
extended proportionality review of his sentence. Again, we disagree.
¶ 32 As discussed, Crim. P. 35(c)(3)(VII) bars any claim that could
have been presented in a previous appeal or postconviction
proceeding. Because Hagos could have challenged his sentence on
direct appeal or in a previous postconviction motion, Crim. P.
35(c)(3)(VII) bars this claim.
¶ 33 We reject Hagos’s argument that his proportionality review
claim warrants review under Crim. P. 35(c)(3)(VII)(c), which carves
out an exception to Crim. P. 35(c)’s procedural bar for “[a]ny claim
based on a new rule of constitutional law that was previously
unavailable, if that rule should be applied retroactively to cases on
collateral review.” In his request for a proportionality review, Hagos
asserted that his life without parole sentence is grossly
18 disproportionate to his first degree kidnapping conviction under
Wells-Yates v. People, 2019 CO 90M, which the Colorado Supreme
Court announced after the trial court sentenced Hagos. He also
cited People v. Clark, (Colo. App. No. 18CA2293, Aug. 26, 2021) (not
published pursuant to C.A.R. 35(e)), in which a division of this
court conducted an abbreviated proportionality review under Wells-
Yates and concluded that the defendant’s life without parole
sentence for first degree kidnapping raised an inference of gross
disproportionality because, among other reasons, the victim lived.
Id., slip op. at ¶¶ 37-40. But a division of this court has held in a
published opinion that Wells-Yates doesn’t apply retroactively.
People v. McDonald, 2023 COA 23, ¶ 24 (cert. granted Nov. 14,
2023); see id. (“[T]o the extent [Wells-Yates] announced new rules as
suggested by McDonald, those rules are procedural, not
substantive. As a result, the exceptions to Crim. P. 35(c)’s
procedural bars don’t apply to McDonald’s 2020 claims regarding
19 the proportionality of his sentence, and they were properly
denied.”).3
¶ 34 We agree with McDonald’s holding and therefore follow it.
Because Hagos’s motion for a proportionality review is procedurally
barred, the postconviction court didn’t err by summarily denying it.
V. Legality of Hagos’s Sentence
¶ 35 Lastly, Hagos contends that the postconviction court erred by
summarily denying his Crim. P. 35(a) motion to correct an illegal
sentence. We perceive no error.
¶ 36 In his motion, Hagos asserted that Colorado law doesn’t
authorize his life without parole sentence because the erroneous
jury instruction for first degree kidnapping invalidates his
conviction for that offense. But Hagos’s claim isn’t cognizable
under Crim. P. 35(a), which asks only whether a defendant’s
sentence is consistent with the General Assembly’s sentencing
scheme. See People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005);
3 This issue — whether Wells-Yates v. People, 2019 CO 90M,
announced a new, substantive rule of constitutional law that applies retroactively — is currently pending before the Colorado Supreme Court in McDonald v. People, No. 23SC381, 2023 WL 8009016 (Colo. Nov. 14, 2023) (unpublished order). 20 Hard, ¶ 46. (Indeed, Hagos concedes that Colorado’s sentencing
statute, § 18-1.3-401, C.R.S. 2024, authorizes a life without parole
sentence upon conviction of a class 1 felony.)
¶ 37 His claim challenges the constitutionality of his conviction,
which instead falls under Crim. P. 35(c)(2)(I). See People v. Dunlap,
222 P.3d 364, 369 (Colo. App. 2009) (“[T]here is a significant
difference between a true illegal sentence claim under Crim. P. 35(a)
that the sentence is inconsistent with the statutory scheme, and the
assertion of a claim that a sentence was imposed in violation of the
constitution, which can involve a claim that the conviction itself is
defective.”) (citations omitted); see also Rockwell, 125 P.3d at 422
(Coats, J., concurring in the judgment) (“[T]he defendant’s challenge
to the factual basis for his offense only secondarily implicates the
legality of his sentence. . . . Were Crim. P. 35(a) to extend so far,
virtually any challenge to a defendant’s conviction could be couched
in terms of its secondary effect on his sentence, obliterating any
distinction between Crim. P. 35(a) and Crim. P. 35(c), and the
separate purposes and limitations of each.”); People v. Collier, 151
P.3d 668, 670 (Colo. App. 2006) (the substance of a postconviction
21 motion determines whether it falls under Crim. P. 35(a) or Crim. P.
35(c)).
¶ 38 Because the division affirmed Hagos’s first degree kidnapping
conviction in Hagos I, the postconviction court properly rejected
Hagos’s attempt to relitigate his conviction. See Crim. P. 35(c)(3)(VI)
(the court must deny any claim that was raised and resolved in a
prior appeal); Dunlap, 222 P.3d at 369 (“Because defendant would
seek to attack his conviction, not just his sentence, we decline to
allow a new appeal, which would effectively open his entire case to
relitigation, contrary to finality principles.”).
VI. Disposition
¶ 39 The postconviction court’s orders are affirmed.
JUDGE LIPINSKY and JUDGE SULLIVAN concur.