22CA1713 Peo v Maher 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1713 Arapahoe County District Court No. 12CR2354 Honorable Ryan J. Stewart, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher John Maher,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE BERNARD* Fox and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Polansky Law Firm, PLLC, Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant, 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. 2024. ¶1 Defendant, Christopher John Maher, appeals the
postconviction court’s order denying his Crim. P. 35(c) motion. We
affirm.
I. Background
A. The Crime, the Trial, and the Conviction
¶2 Defendant dated a woman, K.C., who was the mother of the
eleven-year-old victim in this case. Defendant and K.C.’s
relationship lasted from August 2006 until June 2012. During that
time, K.C. and the victim frequently visited defendant’s home.
Defendant’s daughters, who were sixteen years old and thirteen
years old, were often there.
¶3 During these visits, the victim claimed defendant repeatedly
put one of his fingers in her vagina or in her anus. He rubbed his
genitals against her at least once between 2007 and 2012. Most of
the incidents happened at defendant’s home, and at least one of
them occurred in a swimming pool.
¶4 In October 2012, four months after K.C. and defendant broke
up, the victim told her mother about the sexual abuse. K.C.
immediately called the police.
1 ¶5 In November 2012, working with the police, K.C. invited
defendant to a local restaurant. She wore a wire.
¶6 The meal lasted about four hours, and defendant and K.C.
each drank two or three beers. K.C. told defendant that the victim
had claimed he had sexually assaulted her.
¶7 Defendant admitted he had sexual thoughts about the victim,
although he added she had behaved provocatively toward him. He
felt “a lot of guilt” about being sexually aroused by her. He said he
had “done things . . . that [he] shouldn’t have,” and those things
were “wrong.” He thought he should “get help.” “[A]s far as
inappropriate action [was] concerned, it was like momentary,
surprise kind of like, in a way, I don’t want to say it was an accident
necessarily . . . .” He added, “Did I think about her inappropriately?
Yeah. Did I stop situations when I should have stopped them? No.”
He did not admit to putting his fingers in the victim’s vagina or
anus, but he said, “I think I did something.”
¶8 He referred to three specific incidents involving the victim that
had occurred on the same weekend: one in a swimming pool, which
was “pretty bad”; one in a truck; and one in a store. He thought he
2 “drank a lot” that weekend, and he “didn’t really have his head on
straight.”
¶9 The police arrested defendant a short time later. The
prosecutor’s office charged him with seven counts of sexual assault
on a child resulting in a pattern of abuse of the victim. The
prosecution later dismissed four of those counts.
¶ 10 In July 2014, a jury convicted defendant of the remaining
three counts. His theory of defense at trial was that the events
could not have unspooled the way the victim described them
because too many people were always around, and none of them
saw anything untoward happen between defendant and the victim.
B. Direct Appeal and Crim. P. 35(c) Hearing
¶ 11 Maher appealed his convictions. A division of this court
affirmed. See People v. Maher, (Colo App. No. 14CA2221, Apr. 20,
2017)(not published pursuant to C.A.R. 35(e)).
¶ 12 In 2020, defendant filed a Crim. P. 35(c) motion. As is relevant
to our analysis, it raised two groups of claims.
¶ 13 In the first group, defendant asserted that, at the time of his
2014 trial, he was a hard core, functional alcoholic who needed to
drink during the trial to avoid showing withdrawal symptoms. He
3 claimed he was incompetent to stand trial, he was incompetent to
waive his right to testify, and he would have accepted a plea
disposition offered by the prosecution if he had been sober.
¶ 14 In the second group, he submitted that his trial counsel had
been ineffective because counsel did not (1) notice the symptoms of
his excessive drinking and, therefore, counsel did not raise the
issue that he was incompetent to stand trial; (2) call his daughters
to testify during the trial about their observations during the period
when the victim said defendant had abused her; and (3) challenge
the testimony of the prosecution’s expert who had physically
examined the victim via cross-examination and by calling a defense
expert.
¶ 15 In May 2022, the postconviction court held a four-day
evidentiary hearing that primarily focused on defendant’s drinking
before and during the trial. In August 2022, the court issued an
order denying defendant’s Crim. P. 35(c) motion.
II. Competency Claims
¶ 16 The postconviction court determined that defendant had not
shown he was incompetent to stand trial, or that he was
incompetent or too drunk to consider and reject plea dispositions
4 the prosecution had offered or to validly waive his right to testify.
He submits the court’s factual findings concerning these issues
were not supported by the record. As a result, he continues, the
court’s determination that he did not satisfy his burden to show he
was incompetent during these proceedings was flawed. These
errors, he finishes up, denied him his right to due process of law.
We disagree.
A. Standard of Review and Applicable Law
¶ 17 When we review a postconviction court’s decision to deny a
Crim. P. 35(c) motion after holding a hearing, we review the court’s
legal conclusions de novo, but we defer to the court’s factual
findings if the evidence supports them. People v. Villanueva, 2016
COA 70, ¶ 28.
¶ 18 We review de novo whether a defendant’s waiver of a
constitutional right was knowing and voluntary, but we defer to the
trial court’s findings of fact. People v. Davis, 2018 COA 113, ¶ 35.
¶ 19 In a Crim. P. 35(c) proceeding, a court presumes the validity of
a defendant’s conviction. People v. Naranjo, 840 P.2d 319, 325
(Colo. 1992). “[T]he burden is upon the defendant, as the moving
5 party, to establish his claim by a preponderance of the evidence.”
Id.
¶ 20 “The weight and credibility to be given the testimony of
witnesses in a Crim. P. 35(c) hearing is within the province of the
[postconviction] court and when there is sufficient evidence in the
record to support the court’s findings, its ruling will not be
disturbed on review.” People v. Williams, 908 P.2d 1157, 1161
(Colo. App. 1995). It is the postconviction court’s job “to resolve
conflicts, inconsistencies, and disputes in the evidence.” People v.
Poe, 2012 COA 166, ¶ 14.
¶ 21 We review a postconviction court’s competency determination
for an abuse of discretion. People v. Rodriguez, 2022 COA 98, ¶ 12.
A court abuses its discretion if its decision is “manifestly arbitrary,
unreasonable, or unfair, or it applies an incorrect legal standard.”
¶ 22 The United Sates and Colorado Constitutions preclude trying
mentally incompetent defendants. People v. Zapotocky, 869 P.2d
1234, 1237 (Colo. 1994)(citing Drope v. Missouri, 420 U.S. 162, 172
(1975)). In Colorado, defendants are considered “incompetent to
proceed” if they suffer from a mental disability that renders them
6 unable to have “sufficient present ability to consult with the
defendant’s lawyer with a reasonable degree of rational
understanding,” or, if, because of a mental disability, they do not
have a “rational and factual understanding of the criminal
proceedings.” § 16-8.5-101(12), C.R.S. 2024.
¶ 23 Mental disability is defined by statute as a substantial
disorder “of thought, mood, perception, or cognitive ability that
results in marked functional disability, significantly interfering with
adaptive behavior.” § 16-8.5-101(15). But this statute excludes
from the definition of mental disability “acute intoxication from
alcohol or other substances . . . [and] any substance abuse
impairment resulting from recent use or withdrawal,” unless the
substance abuse “results in a long-term, substantial disorder of
thought, mood, or cognitive ability.” Id.
¶ 24 The law presumes defendants are competent. People v.
Karpierz, 165 P.3d 753, 758 (Colo. App. 2006). The burden
therefore rests on them to prove they are incompetent. Id.
¶ 25 Defendants have a constitutional right to testify under the
United States and Colorado Constitutions. U.S. Const. amend. VI;
Colo. Const. art. II, § 25. For a waiver of the right to testify to be
7 valid, the trial court must advise the defendant of that right and
ensure that the defendant’s waiver is knowing, voluntary, and
intelligent. People v. Curtis, 681 P.2d 504, 515 (Colo. 1984), holding
modified by People v. Blehm, 983 P.2d 779 (Colo. 1999). “In order
for a defendant to make a voluntary, knowing, and intelligent
decision, he must be aware of his right to testify, the consequences
of testifying, and his right to take the stand regardless of his
counsel’s advice to the contrary.” Roelker v. People, 804 P.2d 1336,
1338 (Colo. 1991).
B. Postconviction Hearing Testimony and the Postconviction Court’s Factual Findings
¶ 26 After listening to the testimony at the four-day hearing, the
postconviction court made extensive factual findings, which we
summarize next.
1. Trial Attorneys
¶ 27 Two pairs of attorneys represented defendant from the time of
the filing of charges through the end of the trial. Defendant never
confessed to any of his attorneys that he had sexually abused the
victim.
8 a. Attorneys Bresee and Albani
¶ 28 The first attorney defendant hired was Collin Bresee, who was
shortly joined by Peter Albani.
¶ 29 At the beginning of their representation, defendant seemed
very involved in his case and focused on its details. Bresee thought
that defendant was a “great client,” a “smart guy” who was “very
attentive.” At the beginning of the case, defendant expressed an
interest in a plea disposition.
¶ 30 Bresee thought defendant would be convicted if the case went
to trial because of the statements defendant made to K.C. while she
was wearing a wire at the restaurant. So, when the prosecutor
offered defendant a plea disposition, Bresee thought defendant
should at least consider it.
¶ 31 The plea disposition’s conditions included undergoing
intensive probation supervision, spending up to two years in jail,
registering as a sex offender, and completing a sex offense-specific
evaluation. Defendant told Bresee he did not want to go to jail,
register as a sex offender, or make the statements necessary to
complete the evaluation.
9 ¶ 32 Defendant’s seeming denial of the evidence and the potential
consequences of losing at trial did not strike Bresee as odd. In “the
majority of [Bresee’s] experience, people either start off . . . in full
denial or moderate denial.” But defendant’s state of denial did not
make Bresee “concerned [about defendant’s] competency” because
defendant never told him that he abused the victim.
¶ 33 As is pertinent to our analysis, three things happened while
Bresee and Albani were representing defendant.
¶ 34 First, defendant changed as the case progressed. His
girlfriend began to dominate his meetings with the attorneys.
Bresee also noticed he seemed to gain a lot of weight, perhaps
because he often went out to dinner with his girlfriend. Albani did
not attribute his weight gain to abusing alcohol because he had
other clients put on a lot of weight during the pendency of their
criminal cases due to stress.
¶ 35 Second, the prosecution notified Bresee that defendant
violated a condition of his bond by drinking, but the prosecutor
elected not to ask the court to revoke his bail. Bresee discussed
this report with defendant, who denied he had been drinking.
10 ¶ 36 Third, defendant decided to waive his right to a preliminary
hearing. He did not appear in court at the time scheduled for the
preliminary hearing. When one of his attorneys contacted him to
find out why he missed the court appearance, he replied that he
thought he did not have to come if he waived the preliminary
hearing. Bresee did not think that any sort of cognitive impairment
caused defendant to miss the hearing.
¶ 37 Neither Bresee nor Albani noticed defendant drinking
excessively, nor did they think he was an alcoholic.
¶ 38 Bresee and Albani represented defendant for about eight
months until they withdrew, citing “an irreconcilable difference.”
According to Bresee, this difference had come about because
defendant was unwilling to meet with his attorneys to discuss the
statements he had made to K.C. in the restaurant. (Bresee thought
it was important to discuss these statements with defendant before
he decided to turn down the prosecution’s proposed plea
disposition.)
b. Attorneys Silver and Frerich
¶ 39 Defendant then hired Neil Silver and Amy Frerich to represent
him. Silver, in turn, hired an investigator.
11 ¶ 40 In the run up to the trial, the prosecution offered a second
plea disposition. Silver explained it to defendant, who rejected it,
saying that he would not admit the allegations against him. Silver
thought he understood the offer.
¶ 41 Neither Silver nor Frerich ever thought defendant was
intoxicated when they were around him, and they never received
any reports he had been drinking.
¶ 42 Silver only noticed defendant had been drinking on one
occasion, which was when he and the investigator dropped by
defendant’s home. According to the investigator, Silver asked
defendant whether he had been drinking. When he answered he
had been drinking, Silver told him not to appear like that in front of
the jury and to cut down on his drinking. Silver did not remember
this conversation.
¶ 43 Frerich sat next to defendant during the trial. She never
thought he had been drinking or was intoxicated. For example, she
did not smell the odor of an alcoholic beverage and defendant did
not slur his words.
¶ 44 Defendant spoke with his attorneys repeatedly throughout the
trial. They thought he was intelligent and engaged during these
12 conversations, and they never formed the opinion he was
intoxicated. According to the investigator, Silver thought
defendant’s poor hygiene, sloppy grooming, and red face would not
look good in front of the jury.
2. Evidence of Defendant’s Drinking
¶ 45 After hearing all the testimony, the postconviction court found
that defendant “suffered from alcohol dependency” while this case
was pending. As the trial approached, the amount of alcohol he
ingested increased, and it led him to put on “a significant amount of
weight.”
¶ 46 The trial court incarcerated defendant after the jury convicted
him. A sheriff’s deputy gave him a portable breath test. Its result
was .159, which surprised the deputy because the deputy did not
think defendant appeared to be intoxicated.
¶ 47 Defendant told the deputy he had been drinking the night
before; he said that he drank all the time. He suffered from alcohol
withdrawal at the jail, and he was given medication to alleviate his
symptoms.
¶ 48 At his presentence investigation, defendant said he did not
have an alcohol problem.
13 ¶ 49 Defendant’s ex-wife told the postconviction court his drinking
increased after his arrest. She described one incident in which she
thought he was intoxicated when he met her at a bank to have
some documents notarized. But she added he was a “functioning
alcoholic,” and she thought he understood the documents he
signed. She never told any of defendant’s trial attorneys she had
“any concerns about his alcohol abuse.”
¶ 50 Defendant’s girlfriend believed alcohol impaired defendant’s
ability to understand what happened during the trial. He drank
before and after each day’s proceedings. She drove him to the
courthouse during the trial, and he would often instruct her to stop
at a liquor store. He was sweaty, and he would start shaking if he
went too long without a drink. She also thought he was confused
when he met with Silver and Frerich to talk about whether he
should testify. She said she told Silver and Frerich she had
concerns about his drinking; they testified this did not happen.
¶ 51 No other witnesses who testified at the postconviction hearing
thought defendant smelled of alcohol or seemed intoxicated during
the trial. No one — not his four attorneys and not the trial court —
suggested he was incompetent to stand trial.
14 ¶ 52 Defendant testified at the Crim. P. 35(c) hearing. He said he
started drinking more after his arrest to the point he became
physically dependent. He would drink to stop tremors he
experienced and to keep from experiencing violent withdrawal
symptoms. He felt he had no choice but to drink: he “required it”
“in order to operate.”
¶ 53 As the trial progressed, defendant woke up with withdrawal
symptoms more frequently. He drank to stem his shaking,
difficulties in his breathing, the feeling of fluid in his lungs, and
nausea. He could not think clearly, either when sober or when
drunk, and he could not get dressed for court without his
girlfriend’s help. Because of his physical condition, he “doubt[ed]”
he would have been able to testify.
¶ 54 Defendant offered the testimony of a forensic psychiatrist, Dr.
Karen Fukutaki, at the hearing. In 2020, she evaluated whether
defendant was competent at his 2014 trial. See People v. Pendleton,
2015 COA 154, ¶ 11 (“Although retrospective competency
determinations are not favored, they are permitted whenever the
record, together with any additional evidence available, allows the
15 court to make an accurate assessment of the defendant’s
competency.”).
¶ 55 Dr. Fukutaki decided there was “substantial evidence that
[defendant] was not competent” during his 2014 trial because he
suffered from a severe alcohol use disorder. Although she required
additional information to reach a more definitive opinion, she also
“strongly suspected” he was suffering from a neurocognitive
impairment because he had memory lapses.
¶ 56 To reach her opinion, she spoke with defendant. She said he
displayed “comprehension difficulties . . . years after he had
stopped drinking.” These difficulties required her to ask her
questions with specificity because, otherwise, “he wasn’t able to
comprehend what I was actually asking.” She thought his “ability
to cognitively process information verbally provided to him” would
have been “compromised” during the trial.
¶ 57 Dr. Fukutaki also interviewed defendant’s ex-wife and his
girlfriend, looked at historical records, and reviewed transcripts of
the trial. She did not speak with defendant’s four trial attorneys.
16 ¶ 58 The postconviction court decided that, for several reasons, Dr.
Fukutaki’s opinion was insufficient to show defendant suffered from
a mental disability during his trial.
¶ 59 First, the court observed that Dr. Fukutaki based her report
on limited information: she did not interview any of defendant’s
former attorneys.
¶ 60 Second, Dr. Fukutaki’s opinion partially rested on an
exchange in a trial transcript between the trial court and defendant
when he was deciding whether he would testify. At one point, when
asked whether he understood the court’s advisement of rights, he
said, “I’m sorry, I missed that.” Dr. Fukutaki thought this showed
he did not understand the advisement. Incorporating nearby lines
of the transcript, the court thought defendant had been talking with
his attorney and had missed the court’s question. And, during this
advisement, the trial court said defendant had been “very attentive”
throughout it.
¶ 61 Third, the court discounted the persuasiveness of Dr.
Fukutaki’s statement that she “strongly suspected” defendant was
suffering from a neurocognitive impairment because she admitted
17 she would need more information to reach a more definitive
diagnosis.
¶ 62 Fourth, the court thought Dr. Fukutaki ignored parts of the
trial transcript that were inconsistent with her medical opinion, she
seemed to be unwilling to answer at least one of the prosecutor’s
questions, and she resisted admitting to “deficiencies” in her
opinion. The court felt these things undermined her credibility and
showed she was biased to render testimony favorable to defendant.
¶ 63 The court also decided that, even if it found Dr. Fukutaki’s
testimony credible, it would still reject defendant’s incompetency
claim because the record only showed that he was voluntarily
intoxicated during the trial, not that he was incompetent.
C. The Postconviction Court’s Order
¶ 64 The postconviction court held defendant was required to show,
under section 16-8.5-101(15), that his alcohol abuse qualified as a
mental impairment because it resulted in a “long-term substantial
disorder of thought, mood, or cognitive ability.” After that, he would
have to establish, under section 16-8.5-101(12), that (1) he did not
have a “sufficient” ability to consult with his attorneys “with a
reasonable degree of rational understanding in order to assist the
18 defense,” or (2) he did not have “a rational and factual
understanding of the criminal proceedings.”
¶ 65 The court determined defendant had not shown he suffered
from a mental impairment. It added that “the only credible
evidence suggest[ed]” defendant was “either voluntarily intoxicated
during portions of the trial or drinking to avoid symptoms of
withdrawal.” As a result, he was not incompetent to proceed under
section 16-8.5-101(12) because he had not shown his alcohol use
resulted in a “long-term, substantial disorder of thought, mood or
cognitive ability.” § 16-8.5-101(12), (15).
¶ 66 The postconviction court turned to defendant’s assertion that
he did not knowingly, intelligently, and voluntarily waive his right to
testify because he was incompetent. In deciding defendant had not
offered sufficient evidence to establish this claim, the court pointed
to several things.
¶ 67 The trial court spoke directly to defendant during the
advisement. Defendant’s responses were contextually appropriate.
He appeared to know where he was and what he was doing. At one
point, he asked for more time to consult with his attorneys, and the
court recessed the proceedings so he could do so. When the trial
19 court recalled the case, defendant said he had decided not to testify.
He said the decision was his, but he had relied on his attorneys’
advice in making it.
¶ 68 Based on these things, the postconviction court decided
defendant was “perceiving accurately, interpreting and/or
responding to the world around him.”
¶ 69 The postconviction court then determined the trial court’s
ruling that defendant had knowingly, intelligently, and voluntarily
waived his right to testify was supported by the record. Defendant
knew he had the right to testify or not to testify, he understood the
consequences of either decision, he was aware the decision was his,
and he knew he could decide to testify even if his attorneys advised
against it.
D. Analysis
1. Competency to Stand Trial
¶ 70 Defendant contends it was manifestly unreasonable for the
postconviction court to dismiss Dr. Fukutaki’s testimony, focusing
only on some portions of her testimony instead of looking at it
“holistically.” But it was up to the court to weigh her credibility and
20 to determine the weight of her testimony. Williams, 908 P.2d at
1161.
¶ 71 There was a conflict, a dispute, between Dr. Fukutaki’s
testimony and the testimony of the four attorneys. See Poe, ¶ 14.
Just like the postconviction court was not required to accept the
testimony of the four attorneys, it was not obligated to reject it and
only accept Dr. Fukutaki’s testimony. See Kim v. Grover C. Coors
Tr., 179 P.3d 86, 97 (Colo. App. 2007)(“[T]he trier of fact may reject
unpersuasive expert testimony, even if uncontroverted.”).
¶ 72 The record shows the postconviction court had reason to be
concerned that Dr. Fukutaki had not spoken with the four
attorneys. If she had, she would have learned they thought
defendant had rational conversations with them, he seemed to
understand what was happening in court, and he did not appear
intoxicated.
¶ 73 Perhaps this information would have changed Dr. Fukutaki’s
mind; perhaps not. But the record supports the postconviction
court’s concern that not interviewing the attorneys was a significant
omission, particularly because they had first-person information
about defendant’s appearance and behavior during the critical
21 period leading up to and including his trial. During that time, the
attorneys spent a lot of time with defendant; indeed, they were often
seated or standing right next to him. Silver and Frerich had
repeated conversations with him about his trial. And the trial
court, which observed him throughout the trial, did not raise
concerns about his competency.
¶ 74 The attorneys and the trial court had the benefit of closely
interacting with defendant at the time of the trial, while Dr.
Fukutaki was brought into the case about six years after the trial.
See Williams v. Woodford, 384 F.3d 567, 608 (9th Cir. 2004)(“[W]e
disfavor retrospective determinations of incompetence, and give
considerable weight to the lack of contemporaneous evidence of a
petitioner’s incompetence to stand trial.”).
¶ 75 It is true that defendant’s ex-wife and girlfriend testified about
defendant’s drinking during and around the time of the trial. But
the postconviction court did not reject their testimony. Recall the
court found defendant had been drinking during the trial to the
point he “suffered from alcohol dependency.” The court decided
defendant had not shown, under section 16-8.5-101(12) and (15),
that he suffered from a mental impairment denying him either (1) a
22 sufficient ability to consult with his attorneys with a reasonable
degree of rational understanding to assist them in his defense, or
(2) a rational and factual understanding of the proceedings in his
case.
¶ 76 While defendant presented evidence at the postconviction
hearing indicating he was incompetent during his trial, there was
also evidence he was competent. We conclude that the latter
evidence supports the postconviction court’s written decision.
Contrary to defendant’s implication, we cannot reweigh the
evidence, make our own credibility findings, or substitute our
judgment for the postconviction court’s. People v. Sharp, 104 P.3d
252, 256 (Colo. App. 2004). We therefore conclude that the
postconviction court’s decision was not an abuse of discretion
because it was not manifestly arbitrary, unreasonable, or unfair
and that the court did not apply an incorrect legal standard. See
Rodriguez, ¶ 12.
¶ 77 For similar reasons, we also reject defendant’s claim that he
was not rational enough to decide whether to accept the
prosecution’s proposed plea dispositions. Defendant claimed
during the postconviction hearing he would have accepted a plea
23 disposition had he been competent. But the record also contains
evidence that he told Bresee he would not accept a plea disposition,
and he would not admit he molested the victim.
¶ 78 Silver testified he communicated the plea offer to defendant,
defendant understood it, and defendant was aware of the
consequences of going to trial. Relying on our previous conclusion
that the record supports the postconviction court’s determination
that defendant had not shown he was incompetent, we conclude
that the record also supports the court’s determination that he
understood the proposed plea dispositions and knowingly rejected
them. As a result, that determination was not an abuse of
discretion. See id.
2. Waiver of the Right to Testify
¶ 79 Defendant contends the postconviction court’s determination
that he voluntarily waived his right to testify was not supported by
sufficient evidence in the record. We disagree.
¶ 80 Defendant asserts his intoxication, or his putative mental
impairment rendered him incapable of waiving his right to testify.
In support of this assertion, he points to the testimony from the
Crim. P. 35(c) hearing, in which he said (1) he was convulsing and
24 “could barely stand up” when the trial court gave him the Curtis
advisement, and (2) he was confused during the meetings with
Silver and Frerich.
¶ 81 We conclude the record supports the postconviction court’s
determination that defendant’s waiver of his right to testify was
voluntary. No one corroborated his claim he was convulsing during
the advisement, including Silver and Frerich, who were standing
close to him. Indeed, they did not think he was intoxicated, he had
trouble understanding the advisement, or he was confused. The
trial court made no mention of anything suggesting convulsions,
and the transcript of the advisement shows defendant responded
appropriately to the court’s questions.
III. Ineffective Assistance of Counsel Claims
¶ 82 Defendant contends the postconviction court erred when it
denied his claims that Silver and Frerich were ineffective. We
disagree.
¶ 83 To prevail on an ineffective assistance of counsel claim, a
defendant must prove that counsel’s performance was deficient and
that the deficient performance prejudiced the defendant. Strickland
25 v. Washington, 466 U.S. 668, 687 (1984). To establish trial
counsel’s deficient performance, the defendant must prove that
counsel’s conduct fell outside the wide range of professionally
competent representation. Id. at 690; People v. Sherman, 172 P.3d
911, 913 (Colo. App. 2006). To establish prejudice, the defendant
must show there is a reasonable probability that, “but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). “In this
context, a reasonable probability means a probability sufficient to
undermine confidence in the outcome.” Id. A claim must be denied
if a defendant does not prove either deficient performance or
prejudice. People v. Chipman, 2015 COA 142, ¶ 32.
B. Analysis
1. Raising Competency
¶ 84 Defendant asserts Silver and Frerich were ineffective because
they did not “investigate or raise competency” and they did not
“ensure” defendant “understood the legal proceedings.” We
concluded above that the record supports the postconviction court’s
determination that defendant had not shown he was incompetent
during his trial. And Silver and Frerich testified they had no reason
26 to question defendant’s competency. So we further conclude the
record supports the postconviction court’s determination that Silver
and Frerich “would not have been expected to raise [defendant’s]
competency.” Indeed, even defendant’s expert witness on criminal
defense admitted he would only have conducted an inquiry into the
extent of a client’s alcohol abuse if he had concerns about the
client’s competency.
2. Calling Defendant’s Daughters to Testify at Trial
¶ 85 Defendant’s daughters testified at the Crim. P. 35(c) hearing.
¶ 86 Defendant contends that Silver and Frerich were ineffective
because they did not call his daughters to testify on his behalf.
They would have provided exculpatory testimony, he continues,
because they would have told the jury the victim was physically
affectionate with defendant, often leading him to tell her to get off
him. They added they never saw defendant touch the victim in an
inappropriate way. They also would have contradicted the victim’s
testimony that the daughters had once walked into the kitchen
when defendant was pressing himself against her.
¶ 87 Silver and Frerich decided against calling defendant’s
daughters to testify at trial because they feared alienating or boring
27 the jury. The postconviction court determined that, although some
defense counsel might have called the daughters to the stand, Silver
and Frerich’s decision not to do so was “a strategic one within the
wide range of reasonable representation.”
¶ 88 K.C. and the victim’s brother testified at the trial that no one
saw defendant sexually abuse the victim, so Silver and Frerich
thought that the daughters’ testimony would have been cumulative,
and, according to Frerich, perhaps traumatic for them as they
would be testifying in their father’s trial.
¶ 89 Their testimony would also have corroborated some of the
victim’s testimony. They would have admitted that the victim
occasionally sat on defendant’s lap, including twice in the
swimming pool.
¶ 90 Defendant claims that Silver and Frerich’s investigation into
what defendant’s daughters would have to say was not meaningful.
Assuming, without deciding, this was the case, defendant did not
establish, but for this putative unprofessional error, there was a
reasonable probability their testimony would have been sufficient to
undermine confidence in the jury’s verdict. See Ardolino, 69 P.3d at
76. Their testimony did not address or undermine the
28 prosecution’s most compelling evidence corroborating the victim’s
testimony: defendant’s recorded statements to K.C. at the
restaurant.
3. The Victim’s Lack of Injury or Pain
¶ 91 A doctor examined the victim shortly after she reported the
abuse. The doctor did not find any evidence of injury to the victim’s
genitals. Defendant asserts this medical finding was inconsistent
with the victim’s claim that defendant had penetrated her vagina
with his finger. He submits that Silver and Frerich were ineffective
because they should have presented evidence, through cross-
examination of the prosecution’s expert and via the testimony of a
defense expert, explaining that repeated vaginal and anal abuse,
such as the victim described, would have caused discernible
damage, thus undercutting the victim’s credibility.
¶ 92 For example, a prosecution expert testified at trial on direct
examination that touching a prepubescent girl’s hymen would have
been painful, akin to feeling like being touched by a knife. Silver
only asked three questions of this expert, which were aimed at
demonstrating that an examination showing no injury was
consistent with no sexual abuse having occurred.
29 ¶ 93 The postconviction court determined that Silver’s limited
cross-examination was appropriately strategic because it
emphasized the prospect that defendant did not abuse the victim.
Silver was also able to argue to the jury, based on the expert’s
direct examination, that any touching of the victim’s hymen would
have hurt: “Did she ever make a sound or express hurt or fear with
other people around? No. Never did.”
¶ 94 Defendant submits Silver and Frerich should have retained a
defense expert to testify about how repeated digital penetration
would be expected to cause visible injuries. But the prosecution
theorized at trial that the victim had been mistaken when she said
defendant had digitally penetrated her vagina. Rather, the
prosecution argued, defendant merely penetrated her labia without
penetrating her vagina. Consistent with the prosecution’s trial
theory, the expert whom defendant called to testify at the Crim. P.
35(c) hearing said she would not expect to see injuries if there was
only penetration of a girl’s labia.
¶ 95 We conclude the record supports the postconviction court’s
determination that defendant was not prejudiced because Silver
and Frerich did not call a defense expert or because Silver only
30 engaged in limited cross-examination of the prosecution’s expert at
trial.
¶ 96 Defendant claims the postconviction court used an improper
legal standard when it wrote that the testimony of the expert who
testified at the Crim. P. 35(c) hearing “would not have changed the
outcome” of the trial. Considering the court properly quoted the
standard repeatedly in other contexts, it appears the court was
simply trying to summarize the proper standard at the end of a long
order.
¶ 97 Defendant asserts that more comprehensive medical testimony
and cross-examination was necessary because “the entirety of the
case rested on [the victim’s] credibility.” But, again, this assertion
ignores the incriminating statements defendant made to K.C. at the
4. Defendant’s Statements at the Restaurant
¶ 98 Defendant asserts Silver and Frerich’s “handling” of
defendant’s statements to K.C. at the restaurant was “deficient.”
They should have, he continues, “prepared” him “to testify as to his
intent when he made each and every statement,” arguing that he
31 “would have said anything” to prevent K.C. from calling the police
and then falsely accusing him of sexual assault.
¶ 99 This contention is moot because it assumes defendant would
have testified at trial. Defendant chose not to testify. And, as we
concluded above, the record supports the postconviction court’s
determination that defendant did not satisfy his burden of proving
(1) he was incompetent to decide whether he would testify at trial,
and (2) his waiver of his right to testify was not knowing, voluntary,
and intelligent.
5. Counsel’s Explanation of the Prosecution’s Second Proposed Plea Disposition
¶ 100 During oral argument, defendant’s appellate counsel indicated
defendant raised an independent ineffective assistance of counsel
claim in his addendum to the original Crim. P. 35(c) motion: Silver
and Frerich were ineffective because they did not adequately
explain to defendant that the prosecution’s second proposed plea
disposition included a determinate sentence to incarceration
instead of an indeterminate one. (Recall we have already concluded
the record supports the postconviction court’s determination that
32 he understood the proposed plea disposition and knowingly rejected
it.)
¶ 101 But defendant’s addendum did not focus on the nature of
Silver and Frerich’s explanation of the offer; it focused on his
alleged incompetency. For example, the addendum argued, “based
on his incompetency as a result of alcohol dependence and
intoxication leading up to a during the trial,” he was unable “to
rationally weigh the risks of trial,” to make “informed decisions
about whether to accept a favorable plea offer, or to decide the
relative risks of pleading guilty or going to trial.” Defendant later
reaffirmed that his putative incompetency was the axle around
which this contention spun in his reply to the prosecution’s
response to his Crim. P. 35(c) motion by repeating the language we
quoted earlier in this paragraph.
¶ 102 “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.” People v. Goldman, 923
P.2d 374, 375 (Colo. App. 1996). Because defendant did not raise
this issue before the postconviction court, we will not consider it.
33 6 Cumulative Error
¶ 103 Finally, defendant asserts his ineffective assistance of counsel
claims rise to the level of cumulative error. “For reversal to occur
based on cumulative error, a reviewing court must identify multiple
errors that collectively prejudice the substantial rights of the
defendant, even if any single error does not. Stated simply,
cumulative error involves cumulative prejudice.” Howard-Walker v.
People, 2019 CO 69, ¶ 25 (citation omitted).
¶ 104 We have rejected all defendant’s contentions of ineffective
assistance of counsel, including claims that he was prejudiced by
the postconviction court’s putative errors. We therefore reject his
cumulative error claim.
IV. Disposition
¶ 105 The postconviction court’s order is affirmed.
JUDGE FOX and JUDGE HARRIS concur.