Peo v. Hoid

• Court: Colorado Court of Appeals
• Decided: December 19, 2024
• Docket: 23CA1976
• Status: Unpublished

Opinion

23CA1976 Peo v Hoid 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1976 Boulder County District Court No. 20CR2138 Honorable Nancy W. Salomone, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Edward Herbert Hoid,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE HARRIS Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Edward Herbert Hoid, Pro Se ¶1 Defendant, Edward Herbert Hoid, appeals the district court’s

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

affirm.

I. Background

¶2 In January 2021, the People charged Hoid with identity theft,

first degree trespass, felony menacing, misdemeanor theft, and

criminal mischief. Hoid later pleaded guilty to identity theft, theft,

and criminal mischief, and, in exchange, the prosecution dismissed

the remaining charges. Under the plea agreement, sentencing was

left open to the court. The district court sentenced Hoid, who was

on parole at the time he committed the offenses, to a controlling

term of seven years in prison.

¶3 Hoid timely filed a Crim. P. 35(c) motion for postconviction

relief. The motion primarily alleged that the police, prosecutor, and

news media conspired to falsely accuse him of involvement in a

homicide, and that he was discriminated against based on his

diabetes. Hoid also raised the following claims related to his

convictions and sentence:

• his interrogation in November 2020 was unlawful;

1 • his lawyer was ineffective for failing to file a motion to

change venue;

• his lawyer coerced him into pleading guilty by

threatening to initiate competency proceedings and by

promising that the court would sentence him to

probation or community corrections;

• his lawyer was ineffective for failing to present mitigating

evidence of his diabetes at sentencing;

• his lawyer was ineffective for failing to file an appeal;

• his lawyer told him that if he was sentenced to prison,

the lawyer would file a postconviction motion, but the

lawyer failed to do so; and

• the sentencing judge was biased.

¶4 The district court denied Hoid’s motion in a written order. The

court concluded that most of Hoid’s allegations did not give rise to

claims cognizable under Rule 35(c), and the remainder were refuted

by the record, were vague and conclusory, or, even if true, did not

entitle him to relief.

2 II. The Crim. P. 35(c) Motion

¶5 Hoid contends that the district court erred by denying his

Crim. P. 35(c) motion without a hearing. We disagree.

A. Standard of Review

¶6 In a Crim. P. 35(c) proceeding, a judgment of conviction is

presumed valid, and the defendant bears the burden of establishing

an entitlement to postconviction relief. See People v. Corson, 2016

CO 33, ¶ 25. To obtain a hearing on his postconviction motion, the

defendant must assert specific facts that, if true, would provide a

basis for relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo.

1988). Thus, a district court may deny a Crim. P. 35(c) motion

without a hearing if (1) the allegations are merely conclusory,

vague, or lacking in detail; (2) the allegations, even if true, do not

warrant relief; or (3) the record refutes the claims. See Crim. P.

35(c)(3)(IV); People v. Duran, 2015 COA 141, ¶ 9.

¶7 We review the court’s summary denial of a Crim. P. 35(c)

motion de novo. People v. Cali, 2020 CO 20, ¶ 14.

B. Analysis

¶8 On appeal, Hoid mostly reasserts his allegations of police and

prosecutorial misconduct concerning a homicide investigation and 3 of discrimination based on his diabetes. We agree with the district

court that these allegations do not support any cognizable claims

that his guilty plea is unlawful.

¶9 But even his claims regarding his judgment of conviction are

without merit.

¶ 10 To begin, any claim concerning conduct that occurred before

his guilty plea is waived. A guilty plea generally “precludes review

of issues that arose prior to the plea.” Neuhaus v. People, 2012 CO

65, ¶ 8; see also Tollett v. Henderson, 411 U.S. 258, 267 (1973)

(reaffirming the principle that “a guilty plea represents a break in

the chain of events which has preceded it in the criminal process”

so that a defendant “may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea”). In other words, a guilty plea

“waives all non-jurisdictional errors in the defendant’s conviction.”

Neuhaus, ¶ 8.

¶ 11 Therefore, by entering a guilty plea, Hoid waived his claims

that (1) he was unlawfully detained and/or interrogated prior to the

date of his plea; (2) his lawyer was ineffective for failing to move for

4 a change of venue; (3) his bond was unlawfully revoked; (4) “false

certificates” were issued; and (5) there was insufficient evidence

underlying his guilty plea. Because Hoid waived these claims, the

district court properly denied them without a hearing. See People v.

Osorio, 170 P.3d 796, 799 (Colo. App. 2007) (holding that a court

may deny a motion without a hearing if “the motion, the files, and

the record clearly establish that the defendant is not entitled to

relief”); see also Moody v. People, 159 P.3d 611, 615 (Colo. 2007)

(appellate court may affirm on any basis the record supports, even

if that basis is different from the grounds on which the district

court relied).

¶ 12 Hoid’s claim that his lawyer coerced him into pleading guilty

fails for a different reason. True, a “defendant may challenge his

guilty plea on the grounds of ineffective assistance of counsel when

that challenge goes to the issue of whether the plea was knowingly,

voluntarily, and intelligently entered.” People v. Stovall, 2012 COA

7M, ¶ 13; see also People v. Isham, 923 P.2d 190, 194 (Colo. App.

1995) (“A defendant can successfully attack a plea only if he can

prove serious dereliction on the part of counsel sufficient to show

5 that his plea was not a knowing and intelligent act.”). But the

record directly refutes any allegation that Hoid’s lawyer used

threats or promises to coerce him into pleading guilty.

¶ 13 In signing the plea agreement, Hoid averred that he was

“entering [his] guilty plea freely and voluntarily and not as a result

of coercion or undue influence on the part of anyone.” He

specifically agreed that “[t]here ha[d] been no threats, force, or

promises made to [him] to cause [him] to enter th[e] plea.”

Additionally, under Crim. P. 11, the court could not have accepted

Hoid’s guilty plea without first determining that he had been

advised of all his rights, he understood the nature of the charges to

which he was pleading guilty and there was a factual basis for the

plea, the plea was “voluntary” and “not the result of undue

influence or coercion,” and he understood that the court would “not

be bound by any representations made to the defendant by anyone

concerning the penalty to be imposed . . . unless such

representations [were] included in [the] formal plea agreement.”

Crim. P. 11(b)(1)-(6). Hoid did not properly designate the transcript

of the plea hearing as part of the record on appeal, so we presume

6 the court engaged in the required colloquy and made findings that

Hoid’s guilty plea was knowing, intelligent, and voluntary. See

People v. Montgomery, 2014 COA 166, ¶ 22 (“If an appellant does

not designate as part of the record material portions of the

proceedings, a reviewing court must assume that the omitted

portions would support the judgment.”).1

¶ 14 Hoid’s allegations that his lawyer provided ineffective

assistance after the plea are also unavailing. To demonstrate

ineffective assistance of counsel, a defendant must show that (1) his

lawyer’s performance was deficient and (2) the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 687 (1984).

¶ 15 Hoid argues that his lawyer was ineffective for failing to

present evidence of his diabetes at sentencing and to file a direct

1 Under C.A.R. 10, the appellant must file a designation of

transcripts with the trial court and an advisory copy with the appellate court within seven days of the date of filing the notice of appeal. The designation must be on Form 8 and comply with the policies adopted by the appellate and trial courts for designating transcripts and for obtaining free transcripts. 7 appeal or a postconviction motion. But these claims are either too

conclusory or fail for lack of prejudice.

¶ 16 Hoid does not explain why the fact that he has diabetes

mitigated his conduct in using another person’s credit card to buy

items at Walmart or why the court would have imposed a lower

sentence if it had known about his diabetes.2 In any event, during

the presentence investigation interview, Hoid did not say that his

conduct was related to any medical condition; he told the

interviewer that he was “high on meth.”

¶ 17 As for the claim that his lawyer should have filed a direct

appeal, Hoid did not sufficiently allege that he was entitled to file an

appeal. Under section 18-1-409(1), C.R.S. 2024, a defendant who

pleads guilty may not appeal his sentence if the sentence imposed

“is within a range agreed upon by the parties pursuant to a plea

2 The sentencing judge was the same judge who considered and

denied Hoid’s Crim. P. 35(c) motion. By denying the Rule 35(c) motion, the judge implicitly found that evidence of Hoid’s diabetes would not have changed the outcome of the sentencing proceedings. See, e.g., Voytik v. United States, 778 F.2d 1306, 1310 (8th Cir. 1985) (where district court judge had determined “that he would not have reduced [the defendant’s] sentence” even if counsel had performed as the defendant wished, the defendant’s ineffective assistance of counsel claim failed for lack of prejudice.). 8 agreement.” Because the plea agreement left sentencing open, the

sentence imposed in this case fell within the range agreed to by the

parties. Nonetheless, in this appeal, Hoid repeatedly claims that his

sentences are unlawful, so if he asked his lawyer to raise that

argument on direct appeal, his lawyer was not deficient for failing to

do so. And Hoid did not allege that he had some basis to appeal his

conviction. See Laycock v. State, 880 F.2d 1184, 1188 (10th Cir.

1989) (“Normally, when a defendant pleads guilty, he has foreclosed

his right to appeal.”) Accordingly, Hoid’s allegations are too vague

to state a claim for ineffective assistance of counsel related to a

direct appeal.

¶ 18 Hoid cannot show any prejudice from his lawyer’s failure to file

a Rule 35(c) motion because, first, there is no Sixth Amendment

right to counsel in postconviction proceedings, see People v.

Breaman, 939 P.2d 1348, 1350 (Colo. 1997), and second, Hoid filed

a timely Rule 35(c) motion, and he does not allege that his lawyer

would have raised different, meritorious claims.

¶ 19 Finally, we reject Hoid’s conclusory claim that the sentencing

judge was biased. A defendant asserting bias on the part of a

9 district court judge must establish that the judge “had a substantial

bent of mind against him.” People v. Jennings, 2021 COA 112, ¶ 28

(citation omitted). “The record must establish such bias clearly;

mere speculative statements and conclusions are not enough.” Id.

In his motion, Hoid alleged that the sentencing court’s statements

at the hearing and its imposition of an aggravated sentence

demonstrated actual bias. But we do not have a transcript of the

sentencing hearing, so we must assume that the court did not

evince a “substantial bent of mind” against Hoid or rely on improper

factors in fashioning the sentence. See Montgomery, ¶ 22. And

adverse rulings alone — including imposition of an aggravated

sentence — are insufficient to establish actual bias. See Bocian v.

Owners Ins. Co., 2020 COA 98, ¶ 57.

III. Disposition

¶ 20 The order is affirmed.

JUDGE YUN and JUDGE KUHN concur.