Peo v. Harris

Opinion

23CA2067 Peo v Harris 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2067 Teller County District Court No. 22M245 Honorable Scott Sells, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Samuel David Harris,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUSTICE MARTINEZ* Moultrie, J., concurs J. Jones, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Erin Wigglesworth, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Samuel David Harris, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion for postconviction

relief following an evidentiary hearing. We affirm.

I. Background

¶2 As part of a plea agreement Harris pleaded guilty to violation

of a protection order. In exchange for his plea, the prosecution

agreed to dismiss the remaining charged counts as well as the

counts in two separately filed criminal cases. Harris agreed to pay

restitution for all dismissed counts and cases and “stipulate[d] to

causation for restitution purposes.” The parties agreed that the

sentence would be open to the court.

¶3 The district court sentenced Harris to 364 days in jail. The

court ordered the prosecution to submit its request for restitution

within thirty days following the sentencing hearing and granted trial

counsel fourteen days to object.

¶4 Subsequently, the prosecution submitted a proposed

restitution “payout order” for the imposition of $11,026.01 in

restitution. When Harris did not file an objection within the court-

ordered timeframe, the district court granted the prosecution’s

request and entered an order for $11,026.01 in restitution.

2 ¶5 Approximately two weeks after the district court entered its

order, trial counsel filed a motion objecting to the restitution order

and requesting that the court set a hearing to determine the

amount of restitution to be paid. The motion explained that trial

counsel had been on family leave when the prosecution filed its

proposed order for restitution and had just been made aware of the

request. The court denied the motion, finding that “[t]he objection

was not timely filed.”

¶6 Thereafter, with the assistance of counsel, Harris filed a

motion for postconviction relief pursuant to Crim. P. 35(c). In it,

Harris alleged that trial counsel provided ineffective assistance by

failing to file a timely objection to the prosecution’s proposed order

and that counsel’s failure to file a timely objection resulted in the

loss of his due process right to challenge restitution at a hearing.

And Harris argued that he should not be required to demonstrate

prejudice because counsel’s ineffective assistance resulted in the

forfeiture of his objection to the restitution order and a hearing.

¶7 The postconviction court ordered the prosecution to respond

to Harris’s motion. The prosecution did so and asserted that Harris

was required to show prejudice because the failure to timely object

3 to a restitution request was not a failure that deprived Harris of an

entire judicial proceeding. The prosecution also argued that

prejudice in this context would be that, but for counsel’s failure to

file a timely objection, the court would have both (1) set the matter

for a hearing and (2) denied the prosecution’s request following that

hearing.

¶8 The postconviction court held an evidentiary hearing on

Harris’s motion. Before the start of the hearing, the prosecution

conceded that trial counsel’s failure to timely object to the

restitution amount constituted deficient performance but continued

to object on prejudice grounds.

¶9 Harris’s trial counsel testified at the hearing. The prosecution

did not call any witnesses but submitted a victim impact statement

showing the costs purportedly incurred as a result of Harris’s

conduct.

¶ 10 After the hearing, the postconviction court denied Harris’s

motion. The court disagreed with Harris that prejudice was

presumed. Instead, the court concluded that to establish prejudice

Harris needed to show that the court would have “set a hearing”

and “would have denied the restitution payout order at the

4 hearing.” The court also found that if a timely objection had been

filed, it “would have set it for a hearing” but it would not have

denied the prosecution’s request following a hearing because there

was “no showing that [the] damages [were] unreasonable or over-

inflated or excessive” and the amount requested by the prosecution

was “reasonable based upon the evidence.” Because Harris failed to

establish prejudice, the postconviction court denied Harris’s

motion.

II. Appellate Jurisdiction

¶ 11 Initially, we consider whether we have jurisdiction to hear this

appeal. The order being appealed was signed by Judge Sells, a

district court judge, in a case that originated in the county court, in

Teller County. The court of appeals issued an order to show cause

on the jurisdictional issue, and Harris filed a response. Based on

the response, the motions division of this court discharged the

order to show cause and ordered the appeal to proceed. Because

one judge on this merits division does not agree that we have

jurisdiction, rather than merely rest on the decision of the motions

division, we explain the basis of our jurisdiction over this appeal.

5 ¶ 12 Jurisdiction is a question of law, which we review de novo.

People v. Maser, 2012 CO 41, ¶ 10.

¶ 13 Appellate jurisdiction over county court decisions rests with

the district court for the judicial district in which the relevant

county court sits. See § 13-6-310(1), C.R.S. 2025; § 16-2-114(1),

C.R.S. 2025; Crim. P. 37(a); Maser, ¶ 12. Thus, if the denial of a

postconviction motion was entered in county court, we lack

jurisdiction to address Harris’s claims. If it is an appeal from the

district court, we may hear the appeal. See § 13-4-102(1), C.R.S.

2025; C.A.R. 1(a)(1); Maser, ¶ 12.

¶ 14 Relevant to our determination is a broad local policy

encouraging the transfer of county court criminal cases to the

district court to allow multiple cases concerning the same

defendant to be resolved together when the defendant has a case or

cases pending in the district court. The policy is in a standing

order issued by the Chief Judge of the Fourth Judicial District

(which includes El Paso County and Teller County). This order,

Fourth Judicial District Chief Judge Order 2008-02, Transfer of

County Court Criminal Cases to District Court (amended Apr. 21,

2008) (CJO), requires that all non-domestic violence misdemeanor

6 cases, where the defendant has an open and pending felony case in

district court, be transferred to the district court if the defendant

has not entered a guilty plea in the county court case. Additionally,

this order directs the district court not to consider a county court

case as transferred to the district court until the county court

division has entered a minute order noting the transfer. And this

order directs the district court’s clerk to ensure that the actions in

the district court are entered in the county court case. The CJO is

an appropriate exercise of authority by a chief judge. See Colo.

Const. art. VI, § 5(4) (“Each chief judge shall have and exercise such

administrative powers over all judges of all courts within his district

as may be delegated to him by the chief justice.”).

¶ 15 At the time this case was filed, Harris had two open, pending

felony cases in the district court. Therefore, this case, originating in

the county court with only misdemeanor non-domestic violence

charges, met the criteria for a mandatory transfer to the district

court pursuant to the CJO. The operative question, then, is

whether this county court case was transferred to the district court

as required. We conclude that it was.

7 ¶ 16 Significantly, the written petition to enter a plea of guilty

carries a caption indicating the matter was transferred to the

district court. So does the prosecution’s proposed restitution

“payout order” requesting the imposition of $11,026.01 in

restitution. See People v. Vargas-Reyes, 2018 COA 181, ¶ 19

(considering the pertinent filings by the parties to determine

appellate court jurisdiction). Also, our review of the Colorado

Judicial Branch’s case management system, known as JPOD, lists

the misdemeanor case in “Division 11 - Teller District Court.” See

People v. Linares-Guzman, 195 P.3d 1130, 1135-37 (Colo. App.

2008) (concluding that it is appropriate to take judicial notice of the

court records in the judicial branch’s case management system).

¶ 17 We acknowledge that there is no minute order transferring

this case to the district court, as required by the CJO. However,

based on the other minute orders in this case, which appear to have

been entered by the district court clerk in the county court case as

required by the CJO, every proceeding, apart from the first

appearance, was held in Division 11 of the district court. And,

apart from the initial appearance, Judge Sells presided over each of

the proceedings and signed the order being appealed. Moreover,

8 there is no order that we could find assigning Judge Sells to the

county court. See Chief Justice Directive 95-01, Authority and

Responsibility of Chief Judges, § A(III)(B) (amended Jan. 2025) (“The

chief judge may assign district court judges to any district or county

court within the district when necessary.”).

¶ 18 The apparent administrative failure of the county court to

issue an order documenting the mandatory transfer of the case is

not determinative of whether we have jurisdiction to resolve Harris’s

appeal. Cf. Maser, ¶¶ 6, 9 (holding that the court of appeals had

jurisdiction to hear the prosecution’s appeal absent a minute order

from the county court in El Paso County transferring the case to the

district court as required by the CJO). Nor does the entry of orders

in the county court case determine jurisdiction; those entries were

required by the CJO for cases transferred to the district court.

Finally, we note that the motions division of this court separately

determined that we have jurisdiction to address Harris’s appeal.

While divisions of this court are not bound by the decisions of other

divisions, including a motions division, see Chavez v. Chavez, 2020

COA 70, ¶ 13, based on the foregoing, we see no reason to depart

from the motions division’s prior determination.

9 ¶ 19 In sum, the charges against Harris were duly filed in the

county court. The case was then transferred, as required by the

CJO, to the district court. A district court judge, sitting as such,

accepted Harris’s plea and entered an order requiring him to pay

restitution. Because the judgment of conviction was entered in the

district court, Harris’s postconviction challenge must also remain in

the district court. See Vargas-Reyes, ¶ 23.

¶ 20 Accordingly, because the denial of Harris’s postconviction

motion was entered in district court, appellate jurisdiction lies with

us, and we will address his appeal on the merits.

III. Ineffective Assistance of Counsel Claim

¶ 21 Harris contends that the postconviction court erred by denying

his Crim. P. 35(c) motion because the denial of a restitution hearing

due to the deficient performance of counsel itself satisfies the

prejudice prong of an ineffective assistance of counsel claim. We

disagree.

A. Legal Principles and Standard of Review

¶ 22 We review the denial of a Crim. P. 35(c) motion after a hearing

as a mixed question of fact and law. People v. Corson, 2016 CO 33,

¶ 25. We defer to the postconviction court’s factual findings but

10 review de novo the court’s ultimate conclusions regarding

performance and prejudice. See Carmichael v. People, 206 P.3d

800, 807-08 (Colo. 2009), overruled on other grounds as recognized

by, People v. Delgado, 2019 COA 55; People v. Sharp, 2019 COA

133, ¶ 12. The postconviction court determines the weight and

credibility to be given to the testimony of witnesses in a Crim. P.

35(c) hearing. People v. Hardin, 2016 COA 175, ¶ 39. Accordingly,

“[w]here the evidence in the record supports the findings and

holding of the postconviction court that presided over an evidentiary

hearing, the judgment will not be disturbed on review.” People v.

Wardell, 2020 COA 47, ¶ 27.

¶ 23 To succeed on an ineffective assistance of counsel claim, the

defendant must establish that (1) counsel’s performance was

deficient, meaning it fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defendant. Strickland v. Washington, 466 U.S. 668, 687-88

(1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). A

postconviction court may reject an ineffective assistance of counsel

claim if the defendant fails to demonstrate either deficient

11 performance or prejudice. See People v. Aguilar, 2012 COA 181,

¶ 9.

¶ 24 Prejudice is normally proved by showing that there is a

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

the result of the proceeding would have been different. People v.

Valdez, 178 P.3d 1269, 1278 (Colo. 2007). In this circumstance,

proof of actual prejudice is necessary because there is a strong

presumption that the proceedings were reliable. Id.

¶ 25 But in very limited circumstances prejudice is presumed. In

United States v. Cronic, 466 U.S. 648, 659-60 (1984), the Supreme

Court identified three of these circumstances: (1) when the

defendant is denied counsel at a critical stage of the proceeding; (2)

when counsel “entirely fails to subject the prosecution’s case to

meaningful adversarial testing”; and (3) when circumstances are

such that “although counsel is available to assist the accused

during trial, the likelihood that any lawyer, even a fully competent

one, could provide effective assistance is so small that a

presumption of prejudice is appropriate without inquiry into the

actual conduct of the trial.” In addition, courts have found that

prejudice is presumed when counsel fails to perfect an appeal, see

12 Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); People v. Long, 126

P.3d 284, 286-87 (Colo. App. 2005), or fails to timely pursue a

motion under Crim. P. 35(c), see Valdez, 178 P.3d at 1278-80.

B. Analysis

¶ 26 Harris contends that trial counsel provided ineffective

assistance of counsel by failing to timely object to the prosecution’s

proposed restitution order. He argues that, because he has “the

right to a restitution hearing when requested” and restitution is “a

critical stage,” we must presume Strickland prejudice from counsel’s

forfeiture of this right.

¶ 27 Harris cites no authority directly indicating that we presume

Strickland prejudice when counsel fails to timely object to the

prosecution’s request for restitution. Instead, he relies on People v.

Martinez-Chavez, 2020 COA 39, ¶ 18, in which a division of this

court recognized that a defendant has a right to a restitution

hearing when one is requested. But the division in Martinez-Chavez

required a timely objection to the restitution request and did not

address whether prejudice is presumed when counsel fails to assert

a defendant’s right to a restitution hearing by timely filing an

objection to the prosecution’s request for restitution. See id. at ¶ 2

13 (“We hold that when restitution is not addressed at a defendant’s

sentencing hearing and is instead reserved at the request of the

prosecution, if the defendant timely objects to the restitution and

demands a hearing, then the defendant is entitled to an in-person

hearing on the issue of restitution.” (emphasis added)).

¶ 28 We do not disagree with the notion that, in Colorado, a

defendant has a statutory right to a restitution hearing when one is

timely requested, see id., and we acknowledge that sentencing,

which includes the imposition of restitution, is a critical stage of the

trial proceeding. See People v. Hernandez, 2019 COA 111, ¶ 24

(concluding that sentencing, including the imposition of restitution,

is a critical stage). However, when the district court proceeds under

section 18-1.3-603(1)(b), C.R.S. 2025, as it did here, the court

enters an order assigning restitution liability, which is a component

of the sentence, but the determination of the amount of restitution

is severed from the sentence and the judgment of conviction. See

Tennyson v. People, 2025 CO 31, ¶ 50 (“Under subsection (1)(b), the

amount of restitution is severed from the sentence . . . .”); Sanoff v.

People, 187 P.3d 576, 578 (Colo. 2008) (noting that an order

assigning liability for restitution is a necessary component of a

14 defendant’s sentence, and the judgment of conviction, while an

order establishing the amount of restitution is not a required

component of the defendant’s sentence).

¶ 29 Harris does not challenge the district court’s order that he is

liable for restitution. Rather, he challenges the court’s order

concerning the restitution amount. Because the court’s order

concerning the amount of restitution is not a component of his

sentence and the judgment of conviction, see Sanoff, 187 P.3d at

578, we do not agree with Harris that trial counsel’s forfeiture of the

hearing to set that amount falls within Cronic’s presumption of

prejudice where there is a complete denial of counsel at a critical

stage of the proceeding. See Cronic, 466 U.S. at 659 (when a

defendant is denied counsel at a critical stage of the proceeding,

prejudice should be presumed).

¶ 30 Moreover, a presumption of prejudice applies only when

counsel’s conduct results in the forfeiture of an “entire judicial

proceeding.” Flores-Ortega, 528 U.S. at 483 (emphasis added); see

Sharp, ¶¶ 28-31. A “proceeding” in this context means “the whole

of a discrete phase of a criminal prosecution.” Sharp, ¶ 30

(emphasis added). Colorado courts recognize three discrete

15 proceedings: “(1) a trial proceeding, from the commencement of the

case to the resolution of all allowed post-judgment, pre-appeal

motions in the trial court; (2) an appellate proceeding, including at

least a defendant’s appeal as a matter of right to this court; and (3)

a postconviction proceeding under Rule 35(c).” Id. (footnote

omitted). When counsel fails to file an individual motion or take

other action within a proceeding — for example, moving for a new

trial or a judgment of acquittal — such conduct does not qualify for

a presumption of prejudice because the defendant has not been

deprived of an entire proceeding. See id. at ¶¶ 31-34.

¶ 31 We conclude that a hearing on the amount of restitution is not

a critical stage of the proceeding and does not constitute an “entire

judicial proceeding” for purposes of presuming prejudice. Flores-

Ortega, 528 U.S. at 483. Rather, a hearing on the amount of

restitution is but one subpart of the trial proceeding — namely, the

resolution of a postjudgment motion in the district court. See

Sharp, ¶ 30. Because trial counsel’s failure to file a motion

objecting to the amount of restitution did not cause Harris to forfeit

an entire judicial proceeding to which he was entitled, Harris was

16 required to show actual prejudice from his counsel’s performance.

See id. at ¶¶ 30-31.

¶ 32 We are not persuaded otherwise by Harris’s argument that

prejudice must be presumed because he had “no opportunity” to

review and prepare a challenge to the victim impact statement

submitted by the prosecution and relied on by the postconviction

court when it found that Harris had failed to show actual prejudice.

Even if Harris had no opportunity to review and prepare a challenge

to the victim impact statement, we note that while postconviction

counsel objected to the admission of the exhibit, when the court

admitted it over her objection, she did not request a continuance or

make any suggestion that she needed additional time to prepare a

challenge to it. See People v. Anderson, 837 P.2d 293, 299 (Colo.

App. 1992) (a failure to request a continuance or ask for more time

in the district court belies an assertion of surprise on appeal).

¶ 33 Instead, postconviction counsel chose to argue only that

prejudice was presumed because prejudice in this circumstance

was either “the loss of any right to a restitution hearing” or “that

there’s actually a reason for a restitution hearing” because trial

counsel “would have objected in this specific case.” Postconviction

17 counsel chose not to argue or present any evidence that, but for

trial counsel’s deficient performance, the district court would have

held a hearing, and Harris would have been successful at that

hearing. See People v. Ortiz, 2016 COA 58, ¶ 30 (“[T]he court did

not deny defendant the opportunity to rebut the prosecution’s

evidence; defendant simply chose not to try to do so.”).

¶ 34 Having concluded that Harris was required to show actual

prejudice from trial counsel’s deficient performance, and because

Harris makes no argument regarding actual prejudice, we perceive

no error in the postconviction court’s decision to deny his claim

that his trial counsel provided ineffective assistance of counsel by

failing to file a timely objection to the amount of restitution

requested by the prosecution.

IV. Disposition

¶ 35 The order is affirmed.

JUDGE MOULTRIE concurs.

JUDGE J. JONES dissents.

18 JUDGE J. JONES, dissenting.

¶ 36 When this court lacks jurisdiction over an appeal, we must

refrain from addressing its merits and must dismiss it. See Goodall

v. Gentry-Cunningham, 2024 CO 52, ¶¶ 2, 11-12; Giuliani v.

Jefferson Cnty. Bd. of Cnty. Comm’rs, 2012 COA 190, ¶ 15; People

in Interest of J.C.S., 169 P.3d 240, 248 (Colo. App. 2007). In my

view, we lack jurisdiction over this appeal. Therefore, I respectfully

dissent.

¶ 37 The court of appeals lacks jurisdiction over appeals from

county court; such appeals must be pursued in district court. § 13-

6-310(1), C.R.S. 2025; Crim. P. 37(a); see also Colo. Const. art. VI,

§ 17. This case began and has remained in county court, and the

order appealed from — the order denying defendant’s petition for

postconviction relief — was issued in county court.

¶ 38 The People initiated this case in July 2022 by seeking an

arrest warrant on two misdemeanor allegations of violating a

protection order. The case was assigned the following case number:

“2022M000245.” It was more fully designated in the court’s register

of actions as case number “C0602022M000245.” (Emphasis

added.) Presumably the “M” stands for “misdemeanor.” Three

19 previously filed and related felony cases against defendant were

filed in district court and bore the case number designation “D”

rather than “C” and the case type indicator “CR” rather than “M.”

The People ultimately charged defendant with three misdemeanors

in this case.

¶ 39 Defendant reached a global plea disposition covering this case,

another misdemeanor county court case (captioned with a “C”

designation and “M” case type), and the three district court cases

previously mentioned. As part of that plea agreement, defendant

agreed to plead guilty to one misdemeanor in this case — one of the

charges asserted in an “Amended Complaint” filed along with the

plea agreement and bearing the caption “County Court.” The

court’s order accepting that plea agreement in this case was

captioned as being issued in “County Court” and bore the county

court case number. Defendant agreed to pay restitution as part of

the plea agreement. The court’s order approving the amount of

restitution sought by the People was captioned as being issued in

“County Court” and bore the county court case number.

¶ 40 Defendant filed a petition for postconviction relief under Crim.

P. 35(c) challenging the amount of restitution. That petition was

20 captioned as being filed in “County Court.” The People filed an

opposition to that motion also captioned as filed in “County Court”

and bearing the full case number “C0602022M000245.” Following

a hearing on the motion, the court entered a minute order denying

it. That order was captioned as being issued by the “County Court”

and bore the full case number “C0602022M000245.” Defendant

appeals that order.

¶ 41 A motions division of this court ordered defendant to show

cause why his appeal should not be dismissed because it was from

an order issued in a county court case. Defendant’s response

argued only that the order had been issued by a district court

judge. The motions division discharged the order to show cause

and allowed the appeal to proceed.

¶ 42 In my view, the motions division got it wrong. See Chavez v.

Chavez, 2020 COA 70, ¶¶ 13, 25, 40 (a merits division of the court

of appeals isn’t bound by the ruling of a motions division;

dismissing appeal for lack of jurisdiction). As noted, the case was

filed in county court, the case was designated as a county court

case, the case at all times bore a county court case number, and all

21 orders entered in the case were expressly from “County Court”

bearing a county court case number.

¶ 43 As I see it, the fact that a district court judge entered the order

appealed from (and certain other orders entered in the case) makes

no difference.1 District court judges “may serve in any state court

with full authority as provided by law.” Colo. Const. art. VI, § 18;

see also Colo. Const. art. VI, § 1 (vesting judicial power in “county

courts”); §§ 13-6-101, -102, C.R.S. 2025 (establishing county courts

as “court[s] of record”); Blackman v. Cnty. Ct., 455 P.2d 885, 887

(Colo. 1969) (when acting pursuant to article VI, a county court is a

“state court”). I’m not aware of any authority holding that when a

district court judge acts in a county court case, that, by itself,

transforms the case into a district court case.

¶ 44 I am aware that Fourth Judicial District Chief Judge Order

2008-02, Transfer of County Court Criminal Cases to District Court

(amended Apr. 21, 2008), which I presume remains in effect, allows

for county court cases to be transferred to district court in limited

circumstances. It is questionable, at best, whether any of those

1 Other orders were entered by a county court judge.

22 circumstances exist in this case. But more importantly, that order

expressly says, “The District Court shall NOT consider a County

Court case transferred to District Court until the County Court

division has entered a minute order transferring such case to

District Court.” Id. (emphasis in original). No such order appears

in the Teller County Combined Court’s register of actions for this

case.2

¶ 45 The appellant has the burden of showing appellate

jurisdiction. Jok v. City of Burlington, 96 F.4th 291, 293 (2d Cir.

2024); United States v. Solco I, LLC, 962 F.3d 1244, 1249 (10th Cir.

2020); In re Marriage of Salviola, 2020 IL App (1st) 182185, 165

N.E.3d 514, 521; Moran v. Bonneville Square Assocs., 25 P.3d 898,

899 (Nev. 2001) (an appellate court may not presume it has

jurisdiction). Defendant has failed to meet that burden. Because

we don’t have any authority to expand our jurisdiction, Chavez,

¶ 22, I would dismiss this appeal with prejudice.

2 Fourth Judicial District Chief Judge Order 2008-02, Transfer of

County Court Criminal Cases to District Court (amended Apr. 21, 2008), also provides that “[n]either the district attorney, defense counsel, nor pro se’ [sic] defendant may transfer the case.”