23CA1911 Peo v Linton 01-08-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1911 Adams County District Court No. 15CR3429 Honorable Mark D. Warner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Byron Linton,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE KUHN Dunn and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 8, 2026
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado; Daniel R Kent Esquire, LLC, Daniel Kent, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Byron Linton, appeals the postconviction court’s
denial of his Crim. P. 35(c) motion without a hearing. We affirm.
I. Background
¶2 We draw the following background information from the
testimony and evidence presented at trial. One evening, Linton
pulled his semi-truck up behind the victim, who was standing next
to his parked car at a gas station air pump. The victim’s car was
blocking Linton’s access to a weigh scale located next to the air
pump. Once the victim finished using the pump, he waved to
Linton, gave him a thumbs up, and gestured to the pump. As the
victim went to get back into his car, Linton got out of his truck and
quickly walked up to the victim.
¶3 Linton stopped a foot or so away from the victim and angrily
gestured at him, telling the victim that Linton needed to weigh his
truck on the scale. They began to argue, and the victim stepped
back — away from his car and off a curb — putting space between
the two of them. Linton then stepped forward in between the victim
and his car. Linton reached for his right waistband, and as he did
so, the victim stepped back onto the curb. The victim, who believed
that Linton was reaching for a gun, said “Oh, you going to shoot
1 me, you’re going to shoot me.” Linton swiftly pulled a gun from his
hip holster and shot the victim in the lower right abdomen.
¶4 The victim collapsed to the ground as Linton holstered his gun
in one smooth motion while stepping back. Linton then stepped
forward and leaned over the victim. At trial, the victim testified that
Linton said, “You see what you made me do. You see what you
made me do.” The victim, trying to keep Linton calm, replied, “Sir,
just I understand like, I wasn’t going to do anything like.” And
Linton then said, “I didn’t mean to do it. I didn’t mean to do it.”
Linton started to walk away as the victim crawled back towards his
car but then returned to say something else. Linton then left the
victim on the ground and got back into his truck. Some bystanders
came over, contacted emergency services, and provided aid to the
victim. Linton spoke with some of the bystanders, but he did not
call emergency services or attempt to aid the victim himself. The
victim was taken to a hospital and survived.
¶5 The gas station’s video-only camera recorded the entire
incident, although the footage is somewhat blurry. Approximately
twenty seconds passed between Linton parking his truck and
shooting the victim. The victim was unarmed and, based on
2 testimony at trial, at no point attacked Linton or threatened him
verbally or physically.
¶6 At trial, Linton argued that he drew the gun in self-defense,
focusing on his fear of the victim, Linton’s reduced physical
capacity, and his hearing loss, which led him to misunderstand
what the victim was saying. He also argued that he did not intend
to shoot the victim. The jury convicted him of attempted second
degree murder and first degree assault. The court sentenced Linton
to twenty years in the custody of the Department of Corrections on
each count, running concurrently.
¶7 Linton filed an appeal, and a division of this court affirmed the
judgment of conviction. See People v. Linton, (Colo. App. No.
17CA0382, Nov. 12, 2020) (not published pursuant to C.A.R. 35(e)).
He then filed a motion to reconsider his sentence under Rule 35(b),
which the postconviction court denied. He later filed a Rule 35(c)
petition in which he alleged ineffective assistance of counsel and
that the court did not accommodate his hearing loss disability. He
also sought a review of his sentence for gross disproportionality.
The postconviction court denied his Rule 35(c) petition without
holding a hearing.
3 II. Analysis
¶8 Linton contends that the postconviction court erred by
denying the following claims without holding a hearing: (1) violation
of his right to effective assistance of counsel; (2) violation of his
constitutional rights by failing to adequately accommodate his
hearing loss; and (3) violation of his Eighth Amendment rights by
imposing a sentence disproportionate to his crime. We address
each contention in turn.
A. Linton’s Ineffective Assistance of Counsel Claims Do Not Warrant a Hearing
¶9 Linton contends that he was denied effective assistance of
counsel in violation of the Sixth Amendment. He claims that his
lawyers were ineffective by failing to (1) hire an expert to enhance
the surveillance video footage of the incident; (2) present evidence
from a kinesiology expert; and (3) secure the presence of an
exculpatory witness. Lastly, he asserts that (4) the combined
prejudice from these failures amounts to cumulative error. We
disagree.
4 1. Standard of Review and Applicable Law
¶ 10 We review de novo a district court’s denial of a Rule 35(c)
motion without a hearing. See People v. Phipps, 2016 COA 190M,
¶ 20.
¶ 11 When the motion, the files, and the record clearly establish
that the defendant is not entitled to relief, a court may deny a Rule
35(c) motion without a hearing. Ardolino v. People, 69 P.3d 73, 77
(Colo. 2003). Summary denial of a motion for postconviction relief
without a hearing is also appropriate if the claims raise only an
issue of law, or if the allegations, even if true, do not provide a basis
for relief. People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).
Likewise, if the claims are bare and conclusory in nature and lack
supporting factual allegations, the court may deny the motion
without a hearing. Id.
¶ 12 Review under Rule 35(c) is limited. The proceedings “are
intended to prevent injustices after conviction and sentencing, not
to provide perpetual review.” People v. McDowell, 219 P.3d 332, 335
(Colo. App. 2009). One ground for review is “[t]hat the conviction
was obtained or sentence imposed in violation of the Constitution or
laws of the United States or the constitution or laws of this state.”
5 Crim. P. 35(c)(2)(I). In a Rule 35 proceeding, “the legality of the
judgment and the regularity of the proceedings leading up to the
judgment are presumed, and the burden is upon the applicant to
establish by a preponderance of the evidence the allegations of his
motion.” Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567
(Colo. 1991).
¶ 13 In all criminal prosecutions, a defendant is entitled to the
assistance of counsel for his defense. U.S. Const. amend. VI. As
the United States Supreme Court has long recognized, “the right to
counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation
omitted).
¶ 14 “In order to prevail on an ineffective assistance of counsel
claim, a defendant must prove that 1) counsel’s performance was
deficient and 2) the deficient performance prejudiced the defense.”
Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing
Strickland, 466 U.S. at 687). A court may resolve an ineffective
assistance of counsel claim “solely on the basis that the defendant
has failed in either regard.” People v. Romero, 2015 COA 7, ¶ 25
(citing People v. Garcia, 815 P.2d 937, 941 (Colo. 1991)).
6 2. The Enhanced Video Footage
¶ 15 Linton argues that his counsel was ineffective and prejudiced
him by failing to retain an expert to enhance the surveillance
footage of the shooting to corroborate his assertion that the
shooting was accidental.
¶ 16 To support this postconviction argument, Linton retained an
expert who enhanced the surveillance video and provided that
enhanced video to the postconviction court. Linton asserts that the
enhanced video shows that his index finger was on the barrel of his
gun and that his middle finger was in the trigger guard, consistent
with someone who did not intend to pull the trigger. Further, he
argues that such facts — combined with the shape of the gun, his
hand positioning on the weapon, and the holster that he used — led
him to accidentally discharge the firearm with his middle finger. He
contends that by failing to properly investigate and present this
aspect of his defense, his trial attorney was ineffective. And he
argues that such ineffectiveness, coupled with the resulting
prejudice, violated his Sixth Amendment rights. Additionally,
Linton argues that the enhanced video, unlike the unenhanced
version admitted at trial, shows that he fired before activating the
7 targeting laser — contrary to the prosecution’s argument that he
laser-sighted the gun before he fired.
¶ 17 In ruling on Linton’s Rule 35(c) petition, the postconviction
court analyzed the enhanced video footage and concluded that it
added nothing new. We agree with Linton that, as far as his
asserted finger placement was concerned, the court was incorrect in
making this determination without holding a hearing. At the
prehearing stage of a Rule 35(c) petition, all asserted facts must be
taken as true. See People v. Chavez-Torres, 2016 COA 169M, ¶ 31
(“The denial of a claim of ineffective assistance of counsel without a
hearing is justified if, but only if, the existing record establishes
that the defendant’s allegations, even if proven true, would fail to
establish either constitutionally deficient performance or
prejudice.”), aff’d, 2019 CO 59. Linton asserted that his finger was
misplaced on the barrel of the gun and claimed that the enhanced
video supported that factual assertion. Based on our review of the
enhanced video, and the stills taken from it, the video (though
blurry) could suggest to a jury that Linton’s index finger was along
the barrel of the gun, which — according to the assertions in the
motion — left his middle finger in the trigger guard. Thus, the video
8 potentially added something new in support of Linton’s theory that
he accidentally fired the gun, believing that his middle, ring, and
pinky fingers were on the gun grip.
¶ 18 However, we agree with the postconviction court that, as far as
the sequence of the shooting and triggering the laser sight was
concerned, there is no meaningful difference between the
unenhanced and enhanced videos. In our review of the two videos,
it was difficult to see the exact sequence of events and whether the
plume of smoke from the gun appeared before the laser activated.
The enhanced video did not add anything new on this point.
¶ 19 Regardless of these two points, we also agree with the
postconviction court that Linton’s assertions regarding his finger
placement and the enhanced video fail to demonstrate prejudice.
Under the prejudice prong, Linton must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Even if counsel erred by
failing to engage an expert to enhance the video, that omission does
not establish prejudice.
9 ¶ 20 First, the enhanced video is extremely blurry, and, as the
postconviction court noted, “even zoomed in and slowed down, it is
very difficult to make out [Linton’s] fingers.” We agree that, despite
arguably providing some evidence for Linton’s position, the
enhanced video is of limited evidentiary value because it is so
blurry. This limited value does not undermine the evidence
presented at trial. See People v. Dillard, 680 P.2d 243, 245 (Colo.
App. 1984) (determining that evidence of questionable benefit does
not demonstrate prejudice from counsel’s failure to call an expert).
¶ 21 Second, at trial, Linton testified, “I didn’t fire it intentionally.
It was totally an accident. My finger slipped inside the trigger guard
as I was pulling the gun up, and set the gun off.” But the jury was
not merely weighing Linton’s finger placement. Both versions of the
surveillance video showed Linton exiting his truck and within
approximately twenty seconds — and without provocation or in
response to any aggressive action — pointing his gun directly at the
victim. Linton then shot the victim without hesitation or visible
surprise, reholstered the gun, and watched the victim crawl on the
ground. According to witness testimony, he leaned over the victim
10 and said, “You see what you made me do. You see what you made
me do.”
¶ 22 Even accepting as true that the enhanced video provides
corroborating evidence about which finger pulled the trigger, that
evidence doesn’t constitute a reasonable probability sufficient to
undermine confidence in the outcome. The jury had ample
evidence from which it could evaluate Linton’s mental state. The
unenhanced video evidence showed the sequence of events and
Linton’s reaction to those events. And the jury was able to evaluate
Linton’s version of events. Linton does not explain, and we don’t
see, how corroboration of his finger placement would have resulted
in a different outcome in the face of other evidence adduced about
his mental state at trial.
¶ 23 Thus, Linton’s enhanced video claim fails to allege prejudice
because he cannot demonstrate “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Ardolino, 69 P.3d at 76. And because a
court may resolve an ineffective assistance of counsel claim solely
on the basis that the defendant has failed to establish either
11 deficient performance or prejudice, see Romero, ¶ 25, we discern no
error in the postconviction court’s ruling.
3. The Kinesiology Expert
¶ 24 Linton contends that his counsel was ineffective and
prejudiced him by failing to retain an expert in kinesiology to testify
in support of his argument that his grip on the gun resulted in an
unintentional shooting.
¶ 25 In support of this argument, Linton’s postconviction counsel
consulted with a kinesiologist, Dr. Roger Enoka. In his Rule 35(c)
petition, Linton claimed that Dr. Enoka would have testified at trial
that Linton’s fingers were misaligned on the gun and that his
middle, ring, and pinky fingers are all controlled by the same
muscle. Linton argues that Dr. Enoka’s testimony would have
demonstrated that Linton involuntarily discharged the weapon
when he squeezed the handle of the gun. Linton argues that his
trial counsel was ineffective because Dr. Enoka would have been a
better expert witness for his accidental discharge defense than
Chief Dan Montgomery, the former law enforcement officer whom
his trial counsel called as an expert at trial. Alternatively, Linton
12 argues that Dr. Enoka’s potential testimony was a necessary but
omitted addition to Chief Montgomery’s testimony.
¶ 26 When addressing trial counsel’s performance, we evaluate that
performance from counsel’s perspective at the time the
representation occurred while “ignoring ‘the distorting effects of
hindsight.’” People v. Lopez, 2015 COA 45, ¶ 59 (quoting Davis v.
People, 871 P.2d 769, 772 (Colo. 1994)). Additionally, we must
“indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
¶ 27 Viewed in this light, Linton’s argument that another expert
would have been better than — or needed in addition to — the
expert his counsel called at trial relies on the distortion of
hindsight. See Lopez, ¶ 59. At trial, Linton’s counsel called Chief
Montgomery to testify as an expert “in the area of accidental
discharge concerning a citizen use of the gun.” Chief Montgomery
testified about how negligent or accidental discharges can occur,
the four fundamental rules of firearms control, and examples of
negligent discharges.
13 ¶ 28 Linton contends that Dr. Enoka’s testimony would have
provided a biomechanical explanation for part of Linton’s account of
the shooting. But given that trial counsel called another well-
qualified witness to testify regarding the same accidental discharge
theory, this allegation does not overcome the strong presumption of
reasonableness that we afford to trial counsel’s decision-making.
See id. Based on his argument, Linton only reached the conclusion
that he needed additional or different expert testimony to support
this defense after he was dissatisfied with the result of Chief
Montgomery’s testimony.
¶ 29 Contrary to Linton’s argument, the motion and the record
demonstrate that his trial counsel investigated his case and
retained an expert specifically qualified on the defense he argued at
trial. Therefore, the record directly refutes Linton’s claim that his
trial counsel failed to properly investigate. See Phipps, ¶ 19. While
it may be true that Dr. Enoka could have provided some support for
Linton’s case at trial, we cannot say on this record that counsel’s
performance in obtaining a law enforcement expert, but not a
kinesiology expert, constituted deficient performance.
14 ¶ 30 Thus, we conclude that the postconviction court did not err by
denying this claim without a hearing. See Romero, ¶ 25.
4. The Missing Witness
¶ 31 Linton contends that his counsel was constitutionally
ineffective by failing to secure a witness, Joseph Deede, to testify at
trial. Linton asserts that Deede would have testified that Linton
told him the gun accidentally went off and that Linton appeared
quiet and remorseful.
¶ 32 The postconviction court found that Linton’s trial counsel
failed to secure Deede’s presence at trial because counsel had failed
to show due diligence. The court refused to allow Deede to testify
telephonically for the same reason. But the postconviction court
ultimately determined that Linton failed to allege prejudice
stemming from that defective performance. We agree with the
postconviction court that Linton failed to allege that he was
prejudiced by trial counsel’s failure to secure Deede’s presence at
trial.
¶ 33 At trial, Linton’s attorney elicited the following testimony
regarding Linton’s accidental discharge defense:
15 • On the first day of trial, the victim testified that Linton, after
shooting him, said, “You see what you made me do. You
see what you made me do.” The victim testified that Linton
then said, “I didn’t mean to do it. I didn’t mean to do it.”
• The victim repeated those statements on the second day of
trial and affirmed that Linton seemed shocked that he had
shot him.
• Linton’s trial counsel also pointed out that a witness told a
responding police officer that Linton seemed dazed after the
shooting.
• Another witness said that, following the shooting, Linton
might have been in a state of shock and that he heard other
people saying that Linton had called it an accident.
• One of the responding paramedics testified that the victim
told him that Linton said “I’m sorry” after the shooting.
• Detective James Zamora testified that Linton told him he
was shocked by the incident.
• Linton’s trial counsel also pointed out that Linton told
Detective Zamora that he “didn’t know the [gun’s] handle
was not in [his] palm.”
16 • Detective Zamora affirmed that Linton said he was “shook
up” after the incident and “[he] just couldn’t believe it
happened and [he] was just stunned.”
• Linton’s trial counsel also emphasized testimony and
evidence supporting the accidental discharge defense
during opening statements and closing arguments.
¶ 34 Linton argues that Deede’s testimony was critical for the
defense because it “would have supported and corroborated . . .
Linton’s claim that the discharge of the gun was accidental” and
“rebutted the prosecution argument that [Linton] was callous and
indifferent after the incident.” We are not persuaded.
¶ 35 Given the extensive testimony from multiple witnesses
summarized above, Deede’s proposed testimony would have been
cumulative of other evidence the jury had already heard.1 Though
Deede’s testimony may have been admissible, see People v.
Melendez, 102 P.3d 315, 320 (Colo. 2004) (“[C]umulative evidence
1 During the colloquy in which Linton requested a continuance in
lieu of Deede’s written testimony or telephonic testimony, the trial court found that Deede’s proffered testimony would be cumulative of that of other witnesses or improper speculation on Linton’s thought process.
17 that may corroborate the defendant’s own statement should
ordinarily be admitted.”), that doesn’t make it critical. To the
contrary, the jury heard testimony that Linton said that the
shooting was an accident and that his demeanor was “dazed,” “in
shock,” shook up,” and “stunned.” As a result, we don’t see how
Deede’s testimony would have changed the outcome of the trial.
See People v. Washington, 2014 COA 41, ¶ 35 (concluding defense
counsel wasn’t constitutionally ineffective for failing to present
evidence that would have been cumulative of other witness
testimony on the same topic).
¶ 36 Thus, Linton’s assertions, taken as true, don’t “show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. We discern no error in the
postconviction court’s denial of this claim without a hearing. See
Chavez-Torres, ¶ 31.
5. Cumulative Prejudice
¶ 37 Linton contends that trial counsel’s errors and omissions
constituted cumulative error, entitling him to relief.
18 ¶ 38 The People assert that “the cumulative error doctrine has no
applicability to ineffective assistance claims.” But Colorado courts
have recognized that an individual may bring a cumulative
prejudice argument2 regarding ineffective assistance of counsel.
See, e.g., People v. Gandiaga, 70 P.3d 523, 529 (Colo. App. 2002)
(“[P]rejudice may result from the cumulative impact of multiple
attorney errors . . . .”); see also Dunlap, 173 P.3d at 1081 (declining
to reach a cumulative prejudice argument because trial counsel’s
actions did not fall below an objective standard of reasonableness);
People v. Garner, 2015 COA 174, ¶ 75 (denying ineffective
assistance of counsel cumulative error claim in postconviction
appeal).
¶ 39 Regardless, Linton’s cumulative prejudice claim cannot
prevail. Even if we assume error on the part of his attorneys, those
errors were neither so numerous nor so prejudicial as to have
deprived Linton of a fair trial. See Gandiaga, 70 P.3d at 529. We
2 In the context of a Crim. P. 35(c) petition for ineffective assistance
of counsel, a cumulative error argument is more properly characterized as “cumulative prejudice.” See Dunlap v. People, 173 P.3d 1054, 1081 (Colo. 2007).
19 therefore conclude that the postconviction court did not err by
denying this claim without a hearing.
B. Failure to Provide Accommodations for Hearing Loss
¶ 40 Linton next contends that the postconviction court was
required to grant a hearing on his assertion that the trial court
violated his constitutional rights to due process, equal protection,
confrontation, and to present a defense by failing to provide
adequate accommodations for his hearing loss disability. See U.S.
Const. amends. V, VI, XIV; Colo. Const. art. II, §§ 16, 18, 25.
Reviewing his claim de novo, see Phipps, ¶ 20, we disagree that the
postconviction court erred.
¶ 41 The postconviction court denied Linton’s constitutional claim
as successive because he could have raised it in his direct appeal.
Linton argues that this ruling was improper because “there was no
way to litigate this issue on direct appeal, as trial counsel had failed
to make an adequate record on the issue.”
¶ 42 This argument misunderstands the law. Plain error is
designed to correct an “error that is so obvious that a trial court
should be able to avoid it without benefit of objection.” People v.
20 Sparks, 2018 COA 1, ¶ 36. Additionally, “the error must so
undermine the trial’s fundamental fairness as to cast serious doubt
on the conviction’s reliability.” Id.
¶ 43 Rule 35(c)(3)(VII) “bars postconviction claims that ‘could have
been presented in an appeal previously brought or postconviction
proceeding previously brought.’” People v. Taylor, 2018 COA 175,
¶ 17 (quoting Crim. P. 35(c)(3)(VII)). And its “language is mandatory
rather than permissive.” Id. Linton does not argue that his claim
falls within any exceptions to this bar. Linton could have raised
this claim on direct appeal, even if it was unpreserved and even if
arguing the claim would have been hampered by a poorly developed
record. See Hagos v. People, 2012 CO 63, ¶ 14 (“Finally, we review
all other errors, constitutional and nonconstitutional, that were not
preserved by objection for plain error.”). Thus, the postconviction
court did not err by denying as successive his claim that the trial
court did not adequately protect his constitutional rights during the
trial. See Crim. P. 35(c)(3)(VII); Taylor, ¶ 17.
¶ 44 Linton also argues that his counsel was ineffective by failing to
ensure that his hearing disability was accommodated during the
21 trial. But as the postconviction court noted, this claim is refuted by
the record.
¶ 45 Linton’s trial attorney alerted the court to Linton’s hearing loss
at a pretrial hearing and again raised the issue at the beginning of
jury selection. The trial court repeatedly recognized Linton’s
hearing loss and took steps to ensure that he could hear and that
defense counsel felt comfortable raising the issue to the court.
[Defense Counsel]: And, Your Honor, . . . I presume the [c]ourt did listen to the interview of Mr. Linton --
THE COURT: I haven’t.
[Defense Counsel]: But I want to remind the [c]ourt he is hard of hearing. And we’ve had through the course of proceedings we’ve just tried to remind people to speak into the microphone.
THE COURT: Okay.
[Defense Counsel]: He’s told me when the [c]ourt’s speaking, when the [c]ourt speaks into the microphone, he doesn’t have any trouble hearing at all. I tend to be loud. He hasn’t had any trouble hearing me. The government, when they were standing at the table, he had some trouble hearing them.
THE COURT: Okay. What I’m going to suggest then to the [district] attorneys is you get that microphone in front of you . . . except for
22 objections. And just speak loud, we’ll go from here.
[Prosecutor]: Yes, Your Honor.
THE COURT: And the other thing, I was going to say, Mr. Linton, it’s really important that you hear everything. So if there is something you don’t hear, will you nudge your attorney, and then we’ll repeat it to make sure you do hear it?
[Prosecutor]: And, Your Honor, in regards to jury selection, then, would the Court want me to stay near the podium --
THE COURT: Yes.
[Prosecutor]: -- with the microphone?
THE COURT: Yes. And I think the court reporter probably would like that as well. So --
[Prosecutor]: Of course.
THE COURT: -- I’ll caution everybody, I’m the biggest offender, please talk slowly, and don’t talk over each other. That way we’ll get a good record.
¶ 46 Additionally, when informed that Linton could not hear things,
the trial court immediately took appropriate steps to accommodate
his hearing loss. For example, Linton’s trial counsel took the
following steps during trial:
23 • Counsel informed the court that Linton could not hear the
prosecution’s opening statement, in response to which the
prosecutor said he would speak louder.
• Counsel interrupted the trial court at least twice to ask the
court to speak into the microphone.
• Counsel ensured that the defense table had access to real
time stenographic transcription of the trial that allowed
Linton to read a real time transcript of the proceedings.
• When the defense table lost access to the real-time
transcription, counsel promptly informed the court of the
problem. The court immediately supplied Linton with
headphones, which Linton confirmed helped.
• Counsel emphasized Linton’s hearing challenges during
sentencing.
¶ 47 Therefore, the record refutes Linton’s argument that his
counsel was ineffective for failing to ensure that the court knew of
and accommodated his hearing disability so that he was able to
24 hear and participate in the proceedings.3 And a Rule 35(c) motion
may be denied without a hearing “if the record directly refutes the
defendant’s claims.” Phipps, ¶ 19. Thus, we discern no error in the
postconviction court’s denial of Linton’s disability accommodation
claims without a hearing.
C. Linton’s Proportionality Claim
¶ 48 Lastly, Linton contends that his sentence is grossly
disproportionate to his crime. See U.S. Const. amend. VII; Colo.
Const. art. II, § 20. The postconviction court determined that
Linton’s proportionality argument was barred as successive.
Reviewing the court’s ruling de novo, see Phipps, ¶ 20, we agree
with the court’s determination.
¶ 49 Linton argues that “established Colorado law . . . holds [that]
because proportionality is a function of the Eighth
Amendment . . . [,] it is properly cognizable under [Rule] 35(c).”
While it’s true that a proportionality challenge is cognizable under
3 Linton also argues, without citation to the record, that the court
provided him with a hearing device that did not work. But the record refutes this claim and indicates that Linton confirmed that he could hear the witnesses when they were speaking into the microphone.
25 Rule 35(c), People v. Crawley, 2024 COA 49, ¶¶ 7-9, that doesn’t
resolve the successiveness problem in this case. The procedural
bars, including successiveness, apply to constitutional claims
raised under the rule. See People v. Isom, 2015 COA 89, ¶ 32
(holding that a postconviction indeterminate sentence challenge was
time barred and successive), aff’d, 2017 CO 110. And Rule 35(c)’s
language is mandatory. It requires a postconviction court to deny a
claim that could have been brought in a previous appeal or
postconviction proceeding. Taylor, ¶ 17.
¶ 50 So the appropriate question in this case is not whether a
proportionality challenge can ever be brought in a postconviction
proceeding, but rather, whether Linton could have brought his
proportionality challenge in his direct appeal. A defendant is
permitted to bring a proportionality claim on direct appeal. See,
e.g., People v. Loris, 2018 COA 101, ¶ 9. Linton doesn’t explain why
that general rule doesn’t apply to him, and he doesn’t claim that
any of the exceptions to the successiveness bar apply to his case.
¶ 51 Instead, Linton relies on Crawley, ¶¶ 7-9, People v. Moore-El,
160 P.3d 393, 395-96 (Colo. App. 2007), and People v. Castillo,
2022 COA 20, ¶ 38, in support of his argument that he can bring
26 his proportionality claim for the first time in his postconviction
challenge. But those cases don’t help him. In Crawley, the
defendant pleaded guilty and his proportionality challenge under
Rule 35(c) was his first challenge to his sentence. Crawley, ¶¶ 3-4.
So the successiveness bar did not apply in that case. In Castillo,
the division did conduct a proportionality review for the first time
during a postconviction appeal. Castillo, ¶¶ 36-44. But the
defendant’s claim failed on other grounds, id. at ¶ 44, and there’s
no indication that the People challenged his claim as successive in
that case. Finally, in Moore-El, the division concluded that the
proportionality review was time barred and could not be considered
under the rule. 160 P.3d at 395-96. If anything, this conclusion
lends support to the People’s position that the procedural bars
apply to postconviction proportionality review claims.
¶ 52 Given all of this, we conclude that Linton could have raised his
proportionality challenge in his direct appeal, and the
postconviction court did not err by concluding that his challenge is
barred as successive.
III. Disposition
¶ 53 The postconviction court’s order is affirmed.
27 JUDGE DUNN and JUDGE LIPINSKY concur.