22CA1560 Peo v Howard 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1560 Arapahoe County District Court No. 13CR2750 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daeshaun Laquel Howard,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE HARRIS Brown and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Defendant- Appellant ¶1 Defendant, Daeshaun Laquel Howard, appeals the district
court’s summary denial of his Crim. P. 35(c) motion alleging
ineffective assistance of counsel. We affirm.
I. Background
¶2 In 2013, just after he turned eighteen, Howard shot at two
people outside a bar, killing one of them and injuring the other. A
jury convicted him of, among other offenses, first degree murder
after deliberation. The trial court imposed the mandatory sentence
of life in prison without parole.
¶3 On direct appeal, Howard argued, as relevant here, that his
life without parole sentence, which did not account for his “juvenile
characteristics,” “violated the federal and state constitutions’ . . .
prohibition against barbaric or disproportionate sentences.” The
division rejected that argument and affirmed his life without parole
sentence. People v. Howard, slip op. at ¶¶ 75-79 (Colo. App. No.
17CA0829, Dec. 26, 2019) (not published pursuant to C.A.R. 35(e)).
¶4 Howard filed a timely pro se Crim. P. 35(c) motion, alleging
that his lawyers had provided ineffective assistance during the plea
bargaining process. Later, appointed counsel filed a supplemental
motion, alleging in relevant part as follows:
1 • “[F]rom the beginning,” Howard told his lawyers that he
“wanted a [plea] offer.”
• In September 2014, Howard authorized his lawyers to propose
a plea agreement with a twenty-five-year sentence.
• The prosecution did not respond to Howard’s proposal until
May 2016. In an email to defense counsel, the prosecutor
rejected Howard’s offer and told counsel that negotiations
could only continue if Howard were “willing to accept a higher
number (at least in the 40s).”1
• Counsel did not tell Howard that the prosecution would only
consider an offer involving a sentence “in the 40s.” Instead,
they told Howard that he had to make a “counteroffer” to “get
the prosecution down from 48 years,” even though, at that
point, the prosecution was still open to a sentence “in the
40s.”
1 The supplemental motion omits the words “at least,” but we quote
the language as it appears in the email, which is attached to the motion.
2 • Howard agreed to seek an offer of a thirty-five-year sentence.
Counsel advised Howard about parole eligibility with respect to
a thirty-five-year sentence.
• “Because the offer to ‘negotiate in the 40s’ did not explicitly
come with an expiration date,” counsel did not advise Howard
“that the opportunity to negotiate ‘in the 40s’ was of limited
duration.”
• By August 2016, the prosecution “would not consider anything
other than 48 [years].”
• Despite Howard’s request, counsel declined to speak to
Howard’s mother or stepfather about the case and whether
Howard should plead guilty.
• There was no movement in negotiations for almost a year. A
week before the March 2017 trial, Howard met with the
prosecution to try to obtain an offer. But by then, even the
potential forty-eight-year offer was off the table.
• The case proceeded to trial. It was only during the trial that
Howard “realize[d] that he needed to do anything” to “not . . .
go to trial.” His realization came about after his stepfather
explained to him one night “that there was a difference
3 between a 48-year sentence and a life sentence.” So Howard
told his lawyers that he would accept a forty-eight-year offer,
but the prosecution declined to extend one.
¶5 Based on these factual allegations, Howard asserted that his
counsel had performed deficiently by (1) failing to disclose that the
prosecution would continue plea negotiations only if Howard were
willing to accept an offer “in the 40s”; (2) failing to tell Howard that
the opportunity to negotiate for an offer “in the 40s” was likely to
expire at some point; (3) “improperly push[ing] the plea negotiations
higher” than necessary, by suggesting a forty-eight-year sentence to
the prosecution;2 (4) failing to consult with Howard’s family about
the plea negotiations; and (5) failing to adequately advise Howard
about the “benefits of pleading guilty to a 40-something year
sentence,” including failing to explain the “(minimal) difference
between” a thirty-five-year sentence and a sentence “in the 40s.”
2 The initial pro se motion alleged that the prosecution conveyed an
early, tentative offer of forty-eight years but then indicated in the May 2016 email that “there was room to negotiate in the ‘40’ range.” To the extent the supplemental motion’s allegations and its theories of deficient performance and prejudice are inconsistent with those set forth in the pro se motion, the supplemental motion controls. See People v. Smith, 2024 CO 3, ¶ 29.
4 ¶6 As for prejudice, Howard alleged there was a reasonable
probability that, but for counsel’s errors, the prosecution would
have extended “an offer in the 40s.” And he said that if counsel had
properly advised him about the benefits of such a sentence, he
would have accepted the offer.
¶7 In a detailed, well-reasoned order, the district court denied
Howard’s motion without a hearing. The court determined that
during plea negotiations, counsel made objectively reasonable
strategy decisions aimed at securing an offer acceptable to Howard,
and that Howard had sufficient information to evaluate any
potential offer. The court also determined that, regardless,
counsel’s alleged errors did not prejudice Howard because it was
improbable that the prosecution would have made a firm offer that
Howard would have accepted.
II. Ineffective Assistance of Counsel Claims
¶8 Howard alleges that the district court erred by summarily
denying his ineffective assistance of counsel claims. Though our
reasoning differs in certain respects from that of the district court,
we agree that Howard’s motion does not warrant a hearing. See
People v. Taylor, 2018 COA 175, ¶ 8 (appellate court can affirm the
5 district court’s ruling on a Crim. P. 35(c) motion on any ground
supported by the record).
A. Legal Principles and Standard of Review
¶9 A criminal defendant has a constitutional right to the effective
assistance of counsel. People v. Rainey, 2023 CO 14, ¶ 1. To
prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) counsel’s performance was deficient, meaning it
fell below an objective standard of reasonableness; and (2) counsel’s
deficient performance prejudiced the defense, meaning there is a
reasonable probability that, but for counsel’s errors, the outcome
would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 694 (1984).
¶ 10 A defendant’s right to the effective assistance of counsel
extends to the plea bargaining process. Missouri v. Frye, 566 U.S.
134, 144 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus,
a claim alleging ineffective assistance during plea negotiations is
subject to Strickland’s two-part analysis. Hill v. Lockhart, 474 U.S.
52, 58 (1985). To demonstrate prejudice in this context, the
defendant must show that but for counsel’s errors, there is a
reasonable probability that he would have received and accepted a
6 plea offer and that his sentence under the offer would have been
less severe than the sentence he received after trial. People v.
Delgado, 2019 COA 55, ¶ 21.
¶ 11 “Because a defendant must show both deficient performance
and prejudice, a court may resolve the claim solely on the basis that
the defendant has failed in either regard.” People v. Karpierz, 165
P.3d 753, 759 (Colo. App. 2006).
¶ 12 To warrant a hearing, the Crim. P. 35(c) motion must allege
facts that, if true, would entitle the defendant to postconviction
relief. People v. Joslin, 2018 COA 24, ¶ 4. Thus, the court may
deny a motion without holding a hearing where the defendant’s
allegations are bare and conclusory; the allegations, even if true, do
not state an ineffective assistance of counsel claim; or the record
directly refutes the defendant’s claims. Id.
¶ 13 We review the summary denial of a Rule 35(c) motion de novo.
People v. Luong, 2016 COA 13M, ¶ 7.
B. The District Court Did Not Err by Summarily Denying the Motion
¶ 14 Addressing each of Howard’s claims in turn, we conclude that
his factual allegations contradict his assertions of deficient
7 performance and prejudice or are otherwise insufficient to state an
ineffective assistance of counsel claim.
1. Counsel’s Failure to Disclose the Prosecution’s Negotiating Position
¶ 15 Howard’s primary claim is that his lawyers were ineffective for
failing to relay the substance of the prosecutor’s May 2016 email —
that negotiations could only continue if Howard were willing to
accept a sentence “at least in the 40s.”3 But Howard never explains
with specificity how counsel’s failure to convey that information
prejudiced him. On appeal, he says only that counsel’s error
deprived him of an “opportunity to consider making an offer in the
3 The People note that an exhibit to the supplemental motion
appears to contradict Howard’s allegation that his lawyers did not disclose the substance of the prosecutor’s email. They point to handwritten notes from counsel’s May 2016 jail visit with Howard that include the following notations:
Because we conclude that Howard’s claim fails on other grounds, we need not consider whether the claim is directly refuted by the exhibit.
8 ¶ 16 But Howard did not specifically allege that the prosecution
would have agreed at any time to a sentence lower than forty-eight
years. And by his own account, as early as August 2016, the
prosecution had confirmed that it would not consider a lower offer.
¶ 17 Moreover, Howard acknowledges that counsel’s failure to
communicate about the email did not prevent him from accepting
an offer “in the 40s.” Howard’s motion alleged that in August 2016,
“there had been discussions of a 48-year offer,” the prosecution
would not consider a lower offer, and counsel had Howard meet
with the prosecution in March 2017 in the hope that the forty-eight-
year offer would be “reextend[ed].” Howard did not allege that he
was ever unaware that he could accept an offer of forty-eight years.
¶ 18 Thus, Howard has failed to sufficiently allege that his lack of
knowledge of the May 2016 email prejudiced his ability to negotiate
(or accept) an offer “in the 40s.”
9 2. Counsel’s Failure to Advise Howard of a Deadline for Securing a Plea Offer
¶ 19 Howard asserts that counsel were ineffective for failing to tell
him that “there was an expiration to the ability to engage in plea
negotiations.” But in his motion, Howard alleged that the offer to
negotiate “in the 40s” did not “explicitly come with an expiration
date.” And indeed, Howard’s allegations demonstrate that both
sides considered negotiations to be ongoing, even up to the week
before trial. If there was no deadline for negotiating a plea offer, it
follows that counsel did not perform deficiently by not advising
Howard about a deadline for securing an offer.
¶ 20 But even if counsel should have explained in more general
terms that time was of the essence, Howard did not sufficiently
allege prejudice. In his motion, he said that counsel’s failure to
properly advise him meant that he lost an opportunity to make a
counteroffer or negotiate a plea offer “in the 40s.” But by August
2016, at the latest, the only possible offer available to Howard was a
non-negotiable offer of forty-eight years.
¶ 21 True, in his motion, Howard said that he “had no idea he
could not accept the prosecution’s offer to 48 years during trial.”
10 But he did not explain why that lack of knowledge mattered. For
example, he did not allege that if he had known about a potential
deadline for negotiations, he could have obtained a more favorable
offer before August 2016 and would have accepted that offer. Nor
did Howard allege that if he had known about a deadline, he would
have tried to accept the potential forty-eight-year offer in August
2016 or at any time before March 2017, the month his trial started.
¶ 22 In the prejudice section of his motion, Howard alleged only
that the reason he did not seek a plea offer more in line with the
prosecution’s demand “was because he was misadvised by counsel”
to not “pursue plea negotiations,” a statement that, in addition to
having no connection to his purported unawareness of the plea
negotiation deadline, seems inconsistent with his other factual
allegations. In his reply brief on appeal, Howard adds that if he had
known about a deadline, he would have “asked for an offer in the
40s earlier.” But that allegation is still insufficient: he had a
potential offer “in the 40s earlier” — a potential forty-eight-year
offer. To show prejudice, he had to allege that if he had known he
would run out of time to accept the forty-eight-year offer, he would
11 have tried to accept it earlier. But he never says that, and his
allegations suggest otherwise.
3. Counsel’s Decision to Push Negotiations Higher Than Necessary
¶ 23 Howard claims that in August 2016, counsel improperly
increased the starting point for negotiations by broaching a possible
forty-eight-year sentence, despite the prosecution’s willingness to
negotiate for a sentence “in the 40s.”
¶ 24 Howard points to an August 22, 2016, email to support this
claim. But the email shows that counsel was responding to a
tentative offer from the prosecution. When counsel asked, “Is there
ANY chance that we can resolve this case with less than 48 years?”,
the prosecutor responded, “I don’t think there is room on the offer.”
¶ 25 At any rate, as we have noted, Howard did not specifically
allege that the prosecution would have agreed at any point to a
sentence of less than forty-eight years. So even if counsel’s email
created a forty-eight-year starting point for negotiations, Howard
has failed to sufficiently allege prejudice from that error.
¶ 26 Indeed, Howard’s theory of prejudice is that if counsel had
performed competently, the prosecution would have extended an
12 offer “in the 40s,” and Howard would have accepted the offer. A
forty-eight-year sentence is a sentence “in the 40s,” so for this
reason, too, counsel’s reference to a forty-eight-year sentence could
not have prejudiced Howard.
4. Failure to Consult With Howard’s Family
¶ 27 Howard argues that his counsel were ineffective for failing to,
first, educate his family about the strength of the prosecution’s case
(including his mother, a witness for the prosecution); and second,
enlist his family members to “mak[e] him understand the
seriousness of the situation and the benefits of the plea offer.”
According to Howard, this duty, which arises from juvenile defense
standards, applies to his counsel because Colorado defense
attorneys have adopted the standards in cases involving “18-year-
olds facing life without parole.” This claim fails on both the
deficient performance and prejudice prongs.
¶ 28 In his motion, Howard alleged that his counsel’s performance
fell below the guidelines set forth in the Campaign for the Fair
Sentencing of Youth (CFSY) and the National Juvenile Defense
Standards (NJDS). Specifically, he pointed to CFSY standard 1.4
and NJDC standard 2.6. The former suggests that lawyers “should
13 be sensitive to the ongoing concerns and involvement of caretakers”
and should provide family members “with regular updates and the
opportunity to ask questions and receive clarification on the legal
process.” See The Campaign for the Fair Sentencing of Youth, Trial
Defense Guidelines: Representing a Child Client Facing a Possible
Life Sentence, https://perma.cc/AA78-D28Y. The latter advises
lawyers to “work to overcome barriers to effective communication by
. . . enlisting the help of outside experts or other third parties when
necessary, and taking time to ensure the client has fully understood
the communication.” See National Juvenile Defender Center,
National Juvenile Defense Standards, https://perma.cc/RL7F-
ZBFF.
¶ 29 Neither standard requires defense counsel to disclose to family
members the evidence against the client or to seek the assistance of
family members in persuading the client to accept a plea offer.
Thus, Howard has not shown that counsel had a duty to involve his
family in the plea negotiations. And unless counsel had such a
duty, their failure to discharge it cannot constitute deficient
performance.
14 ¶ 30 Additionally, Howard has never alleged any prejudice from
counsel’s failure to consult with his family. He does not say, for
example, that if his lawyers had spoken to his mother or stepfather,
he would have agreed to accept a forty-eight-year plea offer
sometime before the week of trial.
5. Failure to Explain the Benefits of a Potential Plea Offer
¶ 31 Finally, Howard argues that counsel were ineffective for failing
to explain the benefits of an offer of a sentence “in the 40s.” This
claim is mostly bare and conclusory because, with one exception,
Howard does not specifically allege what his lawyers should have
told him to help him understand the offer’s benefits.
¶ 32 The exception is the allegation that his counsel should have
“meaningfully explain[ed] the difference between a life sentence
without the possibility of parole [and] a 40-something-year
sentence.” In our view, no detailed explanation would be necessary,
so no prejudice resulted. The difference between never being
released from prison and someday being released from prison is
self-explanatory, even to an eighteen-year-old. At any rate, Howard
never alleged that he did not understand the difference between
15 those sentences; he simply said that counsel did not do a good job
of explaining it.
¶ 33 Likewise, any failure to explain the difference between a thirty-
five-year sentence and a sentence “in the 40s” could not have
prejudiced Howard. That difference is a matter of simple math —
somewhere between six and fourteen years. In his motion, Howard
acknowledged that counsel fully advised him of the consequences of
accepting a thirty-five-year offer, including providing information
about parole eligibility. Thus, we agree with the district court that,
by his own admission, Howard had enough information to evaluate
the benefit of an offer of a sentence “in the 40s.”
6. Conclusion
¶ 34 In sum, Howard’s factual allegations, even if true, do not
support his legal claims of deficient performance or prejudice.
Accordingly, the district court did not err by denying his ineffective
assistance of counsel claims.
III. Proportionality Challenge
¶ 35 The district court conducted an abbreviated proportionality
review. It determined that first degree murder is a per se grave or
serious crime and concluded that Howard’s life without parole
16 sentence, which was legislatively mandated, was constitutional. In
the alternative, it determined that, even if first degree murder were
not a per se grave or serious crime, the facts of the case showed
that the offense was grave or serious and therefore Howard’s
sentence was not grossly disproportionate.
¶ 36 On appeal, Howard contends that the district court erred in
two ways: first, by determining that first degree murder is a per se
grave or serious offense because a categorical per se grave or
serious designation runs afoul of supreme court precedent and is
unconstitutional; and second, by failing to consider Howard’s age
and background in determining whether the crime was nonetheless
grave or serious as a matter of fact.
¶ 37 We agree with the district court and the People that Howard’s
proportionality challenge is arguably successive of the claim he
raised on direct appeal. But because the district court elected to
resolve the claim on the merits, we will too. We conclude that the
first argument fails as a matter of law, and therefore we need not
address the second argument.
17 A. Legal Principles and Standard of Review
¶ 38 The Eighth Amendment prohibits sentences that are grossly
disproportionate to the crime. Wells-Yates v. People, 2019 CO 90M,
¶¶ 5, 10. Whether a sentence is grossly disproportionate is a
question of law that we review de novo. Id. at ¶ 35.
¶ 39 A proportionality review involves a two-step process: an
abbreviated proportionality review and, if needed, an extended
proportionality review. Id. at ¶¶ 7, 10.
¶ 40 In conducting an abbreviated review, the court compares
(1) the gravity or seriousness of the offense and (2) the harshness of
the penalty. Id. at ¶¶ 11-14, 18. Whether a crime is grave or
serious ordinarily depends on the facts and circumstances
underlying the offense and is determined by assessing the harm
caused or threatened to the victim or society and the culpability of
the offender. People v. Kennedy, 2023 COA 83M, ¶ 14. If a crime is
grave or serious, and as long as the penalty is within the statutory
range, the sentence is “nearly impervious to attack.” Id. at ¶ 15.
¶ 41 But when a crime is designated as “per se grave or serious,”
the reviewing court skips the first step of the abbreviated review —
“i.e., was this specific crime grave or serious” — and “proceeds
18 straight to an assessment of the harshness of the penalty.” Id. at
¶ 16. A crime is per se grave or serious if, based on its statutory
elements, it necessarily involves grave or serious conduct, meaning
the crime would be grave or serious in every potential factual
scenario. Wells-Yates, ¶ 63.
B. The Court Did Not Err in Its Proportionality Analysis
¶ 42 The per se grave or serious shortcut was first adopted in
People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992), abrogated by,
Wells-Yates v. People, 209 CO 90M. Howard contends that the
categorical designation of crimes as per se grave and serious,
“without regard to the facts underlying the offense,” is “a
misapplication” of Gaskins’s holding. But that argument is
foreclosed by Wells-Yates, which reaffirmed the per se grave and
serious shortcut for certain crimes. Wells-Yates, ¶¶ 13, 62
(explaining that “[o]nce a crime has been deemed per se grave or
serious,” courts “skip the first subpart of step one . . . (gravity or
seriousness) and proceed directly to the second subpart . . .
(harshness of the penalty)”).
¶ 43 Because we are bound by supreme court decisions, we must
also reject Howard’s argument that, notwithstanding Wells-Yates,
19 categorical per se grave or serious designations violate the Eighth
Amendment. See People v. Wright, 2021 COA 106, ¶ 65 (rejecting
the identical argument on the merits and because divisions of the
court of appeals are “bound to follow our supreme court’s decision
in Wells-Yates”).
¶ 44 Howard does not dispute that, if a per se grave or serious
designation is allowable, first degree murder is a per se grave or
serious offense. See People v. Sellers, 2022 COA 102, ¶ 65 (first
degree felony murder is a per se grave or serious crime), aff’d, 2024
CO 64; People v. Castillo, 2022 COA 20, ¶ 42 (first degree extreme
indifference murder is a per se grave or serious crime). Thus, the
district court was not required to assess the particular
circumstances of Howard’s offense. See Kennedy, ¶ 16. And
Howard does not argue that, even if first degree murder is a per se
grave or serious crime, his sentence is nonetheless grossly
disproportionate.
¶ 45 Accordingly, the district court did not err by concluding that
Howard’s sentence comports with the Eighth Amendment.
IV. Disposition
¶ 46 The order is affirmed.
20 JUDGE BROWN and JUDGE LUM concur.