Peo v. Johnson

Opinion

24CA1043 Peo v Johnson 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1043 City and County of Denver District Court No. 18CR6425 Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tahlil Johnson,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE LIPINSKY Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 4, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee

Tahlil Johnson, Pro Se ¶1 Tahlil Johnson appeals the postconviction court’s order

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

I. Background

¶2 In August 2018, the Denver Fire Department responded to

reports of smoke coming from an apartment. Firefighters

discovered in the apartment a person who had been set on fire and

was severely burned. The victim was pronounced dead less than an

hour later.

¶3 Law enforcement identified the victim and located his vehicle a

few blocks away, where officers spoke with Johnson and his

girlfriend, Julisa Granados. The two of them told the officers that

someone named “Guillermo” had been upset with the victim and

“may have done something” to him.

¶4 During an interview at police headquarters, Johnson and

Granados told detectives that they had been staying with the victim

at his apartment and had heard a fight between Guillermo and the

victim. They said that they awoke to the smell of smoke the next

morning and saw the victim on the floor on fire.

¶5 However, during a second interview, Granados admitted that

she lied in the first interview. She said that Johnson became upset

1 and fought with the victim. According to Granados, Johnson killed

the victim by kicking him in the head numerous times. Johnson

and Granados then bought cleaning supplies at a Family Dollar

store to clean up some of the blood.

¶6 Granados said that, after determining he needed to dispose of

the victim’s body, Johnson walked to a nearby store to purchase

lighter fluid. He returned to the apartment and set it on fire while

Granados waited outside. Law enforcement obtained surveillance

footage from a store showing Johnson buying lighter fluid about

thirty minutes before the fire was reported, as well as a video from

the Family Dollar store showing Johnson and Granados purchasing

cleaning supplies.

¶7 Based on this information, the prosecution charged Johnson

with two counts of first degree felony murder (with robbery and

arson as the predicate crimes), first degree murder – after

deliberation, first degree arson, aggravated robbery, aggravated

motor vehicle theft in the first degree, and abuse of a corpse. The

prosecution twice moved to amend the complaint to add a

tampering with a deceased body count, as well as three habitual

2 criminal counts based on Johnson’s previous convictions for

identity theft and forgery.

¶8 Johnson pleaded guilty to two added counts — second degree

murder and a crime of violence sentence enhancer — in exchange

for the dismissal of the original counts. The second degree murder

count, a class 2 felony, carried a presumptive sentencing range of

eight to twenty-four years, see §§ 18-1.3-401(1)(a)(V)(A.1), C.R.S

2025; § 18-3-103(1), C.R.S. 2025, while the crime of violence count

mandated a sentence “for a term of incarceration of at least the

midpoint in, but not more than twice the maximum of, the

presumptive range,” §§ 18-1.3-406(1)(a), C.R.S. 2025; see

§ 18-1.3-401(8)(a). Although these sentencing statutes subjected

Johnson to a prison sentence of sixteen to forty-eight years, he

stipulated to a sentence of forty to forty-eight years in his plea

agreement. The court sentenced him to forty-eight years in the

custody of the Department of Corrections — the maximum in the

stipulated range.

¶9 Almost three years later, Johnson filed a timely Crim. P. 35(c)

motion, asserting that (1) his attorneys had provided ineffective

assistance; (2) he was entitled to the ameliorative effect of two 2023

3 amendments to the Criminal Code; (3) the court abused its

discretion by imposing an excessive sentence; and (4) the

prosecution engaged in misconduct. In a written order, the

postconviction court denied Johnson’s motion without a hearing.

II. Discussion

¶ 10 Johnson contends that the postconviction court erred by

denying his Crim. P. 35(c) motion. We disagree.

A. Standard of Review and Applicable Law

¶ 11 We review de novo a postconviction court’s denial of a

Crim. P. 35(c) motion without a hearing. People v. Cali, 2020 CO

20, ¶ 14, 459 P.3d 516, 519.

¶ 12 A court may deny a Crim. P. 35(c) motion without a hearing if

the motion, files, and record clearly establish that the allegations in

the defendant’s motion do not warrant postconviction relief.

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). This standard is

satisfied if (1) the defendant’s allegations are bare and conclusory;

(2) the allegations, even if true, do not warrant postconviction relief;

or (3) the record directly refutes the defendant’s claims. People v.

Duran, 2015 COA 141, ¶ 9, 382 P.3d 1237, 1239.

4 B. Ineffective Assistance of Counsel

¶ 13 Johnson asserts that the postconviction court erred by

denying four of his ineffective assistance of counsel claims. We are

not persuaded.

¶ 14 To succeed on an ineffective assistance 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,

meaning there is a reasonable probability that, but for counsel’s

deficient performance, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

People v. Duran, 2025 COA 34, ¶ 16, 569 P.3d 899, 904. A

postconviction court may reject an ineffective assistance claim if the

defendant fails to demonstrate either deficient performance or

prejudice. People v. Aguilar, 2012 COA 181, ¶ 9, 317 P.3d 1255,

1257.

¶ 15 First, Johnson contends that the postconviction court erred by

denying his claim that the public defender who represented him

during the first six months of the case was ineffective because of

“significant disparities in budget and experience” between the

5 public defender’s office and that of the district attorney. But

Johnson did not allege that his attorney provided ineffective

assistance on this basis and, therefore, he has not established the

deficient performance prong of his ineffective assistance claim. See

People v. Osorio, 170 P.3d 796, 800 (Colo. App. 2007) (rejecting the

defendant’s ineffective assistance claim because “[o]ther than a bare

assertion of errors, no detail [wa]s provided to explain why [the

challenged] actions were deficient or to place them in context”). Nor

did Johnson allege any prejudice resulting from the purported

budgeting disparities, particularly as the public defender only

represented him during the first six months of the case.

¶ 16 Second, Johnson asserts that the postconviction court erred

by denying his claim that the private attorney who represented him

after the public defender withdrew was ineffective because the

private attorney moved to continue the trial without Johnson’s

consent. Johnson alleged that his attorney should have instead

filed a motion for “Vindictive Prosecutorial Misconduct.”

¶ 17 This claim fails because a lawyer does not need the client’s

consent to file a motion. See Arko v. People, 183 P.3d 555, 558

(Colo. 2008) (explaining that, although a lawyer must abide by the

6 client’s decisions in some areas, decisions about what motions to

file are tactical decisions reserved for the attorney). And Johnson

did not explain how the outcome of the case would have been

different if his attorney had filed the motion he requested. See

Duran, ¶¶ 8-9, 382 P.3d at 1239.

¶ 18 Third, Johnson maintains that the postconviction court

erroneously denied his claim that the alternate defense counsel who

represented him after the private attorney withdrew coerced him

into pleading guilty by telling him that he would lose at trial

because (1) a jury would be prejudiced against him for “bringing

them out during the height of a pandemic” and (2) he would “appear

very intimidating” to the jury as a “6’5” black man wearing a mask.”

Assuming, without deciding, that by referencing these statements

Johnson sufficiently alleged deficient performance, Johnson’s claim

of prejudice is conclusory, and the record refutes it.

¶ 19 To establish prejudice in the context of a guilty plea, a

defendant must demonstrate a reasonable probability that, “but for

counsel’s errors, the defendant ‘would not have pleaded guilty and

would have insisted on going to trial.’” People v. Campos-Corona,

2013 COA 23, ¶ 10, 343 P.3d 983, 985-86 (quoting People v.

7 Stovall, 2012 COA 7M, ¶ 19, 284 P.3d 151, 155). To do so, the

defendant must produce some objective corroborating evidence

outside of his self-serving statements, Carmichael v. People, 206

P.3d 800, 807 (Colo. 2009), overruled on other grounds as

recognized by People v. Delgado, 2019 COA 55, ¶ 1, 442 P.3d 1021,

1023, and “must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances,”

People v. Sifuentes, 2017 COA 48M, ¶ 20, 410 P.3d 730, 736

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). “In

determining whether a decision to reject the guilty plea would have

been rational, a court should consider the strength of the

prosecution’s case, the attractiveness of the plea deal, and the risks

of going to trial.” Duran, ¶ 18, 569 P.3d at 904.

¶ 20 In his motion, Johnson did not allege that alternate defense

counsel’s actions prejudiced him. Nor did he allege that objective

evidence would corroborate his assertion that he would have made

a different decision about the plea absent alternate defense

counsel’s allegedly deficient performance. See Sifuentes, ¶ 20, 410

P.3d at 736. Further, Johnson made no allegation that the

prosecution’s case was weak or flawed, nor did he identify a

8 meritorious defense to the charges against him. See id. at ¶ 21,

410 P.3d at 736. And Johnson did not address in the motion the

benefits of the plea agreement compared to the risks he would have

faced had he gone to trial. See id.; Carmichael, 206 P.3d at 806.

Lastly, he does not seek to withdraw his plea, which refutes his

assertion that he wished to proceed to trial.

¶ 21 In any event, the record refutes Johnson’s claim by

demonstrating the strength of the case against him. See Duran,

¶ 22, 569 P.3d at 905 (noting that the evidence — including

surveillance video, eyewitnesses, and results of a blood test — was

“exceptionally strong”). Granados, an eyewitness to the crimes,

would have testified that Johnson kicked the victim to death and

set the victim’s body on fire. In addition, video evidence

corroborated Grandos’s testimony, including surveillance videos

showing Johnson purchasing lighter fluid and Johnson and

Granados buying cleaning products. If convicted, Johnson faced

the risk of a life sentence without parole. A forty-eight-year prison

sentence was less harsh than life behind bars. See People v.

Corson, 2016 CO 33, ¶ 42, 379 P.3d 288, 297 (noting that “the plea

agreement provided substantial benefits” to the defendant (i.e., a

9 stipulated probation sentence), and in contrast, if the defendant

went to trial he faced a mandatory prison sentence). Under these

circumstances, it would not have been rational for Johnson to reject

the plea agreement and insist on going to trial.

¶ 22 Finally, Johnson argues that the postconviction court erred by

denying his claim that alternate defense counsel did not tell him

about the consequences of pleading guilty to the crime of violence

sentence enhancer. Specifically, he alleged in his motion that

alternate defense counsel did not advise him that pleading to the

crime of violence count would result in a lengthy sentence. The

record refutes Johnson’s argument, however, because (1) the

possible sentence with the crime of violence enhancer was clearly

spelled out in Johnson’s plea documentation; (2) Johnson expressly

agreed to a potential sentence of forty to forty-eight years; and

(3) after the district court explained the possible penalties to

Johnson, the court found that he understood “the possible

penalties and the possible places of incarceration and the period of

mandatory parole.” See People v. Boling, 261 P.3d 503, 505 (Colo.

App. 2011) (“To the extent defendant claims his plea was entered

upon the improper advice of counsel, that assertion is belied by the

10 plea documents and transcript of the providency hearing in which

he expressed complete satisfaction with counsel’s representation”).

In any event, even if alternate defense counsel performed

deficiently, Johnson still did not sufficiently allege prejudice, as

explained above, see Duran, ¶ 20, 569 P.3d at 905-06, and the

court said that alternate defense counsel was effective and

competent. We therefore reject Johnson’s assertion that alternate

defense counsel’s performance was deficient.

C. Challenges to the Sentence

¶ 23 Johnson also asserts that the postconviction court erred by

denying three arguments related to his sentence. We are not

persuaded.

¶ 24 First, Johnson alleged in his motion that he was entitled to the

ameliorative effect of House Bill 23-1293, which, according to

Johnson, reclassified his previous felonies as misdemeanors.

Johnson argued that because his prior convictions are no longer

felonies he is “not a habitual criminal.” Even assuming the truth of

this allegation, however, we reject Johnson’s assertion because

although he was charged with habitual criminal counts he did not

11 plead guilty to them and the court did not sentence him under the

habitual criminal statute.

¶ 25 Second, Johnson alleged that the district court abused its

discretion by imposing an excessive sentence. We disagree because

(1) the district court imposed a sentence within the presumptive

range and (2) Johnson stipulated to a sentence of up to forty-eight

years. See People v. Palmer, 888 P.2d 348, 352 (Colo. App. 1994)

(explaining that appellate courts defer to a court’s sentencing

decision when the sentence is with the presumptive range and is

based on appropriate considerations). And, to the extent that

Johnson’s claim can be construed as a request for a sentence

reconsideration under Crim. P. 35(b), it is untimely. See People v.

Fuqua, 764 P.2d 56, 59 (Colo. 1988) (holding that if a defendant

fails to file a motion within the time limit in Crim. P. 35(b), the court

loses jurisdiction to reduce the sentence and must deny the

motion).

¶ 26 Third, Johnson alleged that his sentence “exceeded the

maximum authorized by law” because “[c]ount 13 was blank.” The

postconviction court found “there was a clerical error that was

corrected to reflect that the crime of violence enhancer imposes a

12 five year mandatory period of parole.” The court therefore

determined that Johnson had not raised a “viable claim for

post-conviction relief.” Because we agree with the postconviction

court, we reject Johnson’s appellate contention.

D. Abandoned Claims

¶ 27 Johnson raised several other claims in his postconviction

motion that he does not reassert on appeal. We therefore consider

those claims abandoned and do not address them. See Osorio, 170

P.3d at 801.

E. New Claims

¶ 28 Finally, we decline to address arguments that Johnson did not

raise in his postconviction motion — the arguments he raised in his

opening brief under the heading, “Mental Health Considerations.”

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

(“Allegations not raised in a Crim. P. 35(c) motion or during the

hearing on that motion and thus not ruled on by the trial court are

not properly before this court for review.”). And we do not review

arguments presented for the first time in a reply brief. People v.

Medina, 72 P.3d 405, 409 (Colo. App. 2003).

13 III. Disposition

¶ 29 The order is affirmed.

JUDGE DUNN and JUDGE KUHN concur.