23CA1383 Peo v Manzanares 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1383 Pueblo County District Court No. 05CR928 Honorable Amiel Markenson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Duane Manzanares,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Duane Manzanares, appeals the postconviction
court’s order denying his motion for relief under Crim. P. 35(c). We
affirm.
I. Background
¶2 According to the evidence presented at trial, Manzanares took
all of his possessions and moved out of the Pueblo home he shared
with his wife, Erica Manzanares,1 and her children. Several days
later, at about 3:30 a.m., Manzanares and his brother-in-law,
“Bam,” broke through the home’s front door. The two men then
forced open the locked door to Erica’s bedroom, where Erica and
her male friend, David Bryant, were sleeping. Manzanares pulled
out a gun, and Erica exclaimed something like “No, Duane, don’t do
it.” Manzanares fired two gunshots, killing Erica and seriously
injuring Bryant. Manzanares and Bam fled.
¶3 Manzanares was arrested seven weeks later in a Denver hotel.
Police found a document describing the heat of passion defense
among his possessions.
1 Because Erica shares a last name with Manzanares, we refer to
her as Erica to avoid confusion. We mean no disrespect in doing so.
1 ¶4 The People charged Manzanares with one count of first degree
murder – after deliberation and one count of first degree assault. At
trial, defense counsel Michael Emmons’s opening statement focused
on a general denial defense, alerting the jury to a lack of either
physical evidence or credible testimony placing Manzanares at the
house that night. The prosecution’s case included testimony from
eyewitness Bam; three teenaged earwitnesses who were in the home
and testified that they heard “No, Duane . . .”; and Manzanares’s
cellmate, to whom Manzanares confessed to the shootings. In
closing, Emmons attempted to poke holes in the prosecution’s case
and argued that Bam had been the gunman.
¶5 The jury was instructed on the lesser included offense of
second degree murder in addition to the charged crimes, but it
found Manzanares guilty as charged. The trial court sentenced him
to consecutive terms of life without the possibility of parole and
thirty years in the custody of the Department of Corrections (DOC).
A division of this court affirmed the convictions on direct appeal.
See People v. Manzanares, slip op. at 5, (Colo. App. No. 08CA1427,
May 19, 2011) (not published pursuant to C.A.R. 35(f)) (concluding
2 that “there was overwhelming evidence of Manzanares’s guilt”). The
convictions became final in December 2011.
II. Postconviction Proceedings
¶6 In November 2019, Manzanares filed a pro se Crim. P. 35(c)
motion. The district court appointed postconviction counsel, who
filed a supplemental motion arguing that Emmons had provided
ineffective assistance by (1) asserting a general denial/alternate
suspect theory of defense instead of pursuing a heat of passion
mitigator to the lesser included offense of second degree murder
and (2) advising Manzanares to decline the prosecution’s offer of a
guilty plea in exchange for a twenty-year prison sentence. The
court ruled that the motion was untimely as to Manzanares’s first
degree assault conviction, denied the claims set forth in the pro se
motion, and ordered the prosecution to respond to the two
ineffective assistance claims raised by postconviction counsel.
¶7 The district court held an evidentiary hearing on those two
claims. It heard testimony from Emmons, Manzanares, three of
Manzanares’s current and prior relatives, and an expert in criminal
defense. Among many other factual findings, the court found that
• Emmons testified credibly.
3 • Emmons spoke with Manzanares before trial about the
heat of passion document Manzanares had when he was
arrested.
• Emmons made a strategic decision not to pursue a heat
of passion mitigation defense based on various
weaknesses in the prosecution’s evidence and to avoid
conceding that Manzanares was in the bedroom when
Erica was murdered.
• Before trial, the prosecution offered a plea deal in
exchange for a sentence of between sixteen and forty-
eight years in the DOC, but Manzanares did not accept it.
• Emmons did not remember a twenty-year plea offer,
there was no physical evidence of such an offer, and the
witnesses who testified that there had been a twenty-year
offer were not credible.
¶8 The district court ultimately found that Manzanares had failed
to establish a right to postconviction relief and denied his Crim. P.
35(c) motion. On appeal, Manzanares generally challenges the
court’s denial of his ineffective assistance claims. We perceive no
error.
4 III. Standard of Review and Applicable Law
¶9 In a Crim. P. 35(c) proceeding, we presume the validity of a
conviction, and the defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to postconviction
relief. Dunlap v. People, 173 P.3d 1054, 1061 (Colo. 2007). When a
district court’s ruling follows an evidentiary hearing, we review the
denial of a Crim. P. 35(c) motion as a mixed question of fact and
law. People v. Corson, 2016 CO 33, ¶ 25.
¶ 10 We defer to the court’s assessment of the weight and
credibility of witness testimony. Dunlap, 173 P.3d at 1061-62; see
also Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567 (Colo.
1991) (“It is . . . the province of the court, as the trier of fact, to
determine the credibility of the witnesses and the weight to be given
their testimony.”). And we defer to the court’s factual findings
unless “they are so clearly erroneous as to find no support in the
record.” People v. Beauvais, 2017 CO 34, ¶ 22. But we review de
novo the court’s ultimate legal conclusions. Dunlap, 173 P.3d at
1063.
¶ 11 To establish ineffective assistance of counsel, a defendant
must satisfy the two-prong test set forth in Strickland v.
5 Washington, 466 U.S. 668, 687 (1984). First, the defendant must
show that counsel’s acts or omissions fell outside the wide range of
professionally competent assistance. Id. at 687-89. Judicial
scrutiny is highly deferential on this prong — we must “evaluate
particular acts and omissions from counsel’s perspective at the
time.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). Second, a
defendant must show that they suffered prejudice from counsel’s
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23CA1383 Peo v Manzanares 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1383 Pueblo County District Court No. 05CR928 Honorable Amiel Markenson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Duane Manzanares,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Duane Manzanares, appeals the postconviction
court’s order denying his motion for relief under Crim. P. 35(c). We
affirm.
I. Background
¶2 According to the evidence presented at trial, Manzanares took
all of his possessions and moved out of the Pueblo home he shared
with his wife, Erica Manzanares,1 and her children. Several days
later, at about 3:30 a.m., Manzanares and his brother-in-law,
“Bam,” broke through the home’s front door. The two men then
forced open the locked door to Erica’s bedroom, where Erica and
her male friend, David Bryant, were sleeping. Manzanares pulled
out a gun, and Erica exclaimed something like “No, Duane, don’t do
it.” Manzanares fired two gunshots, killing Erica and seriously
injuring Bryant. Manzanares and Bam fled.
¶3 Manzanares was arrested seven weeks later in a Denver hotel.
Police found a document describing the heat of passion defense
among his possessions.
1 Because Erica shares a last name with Manzanares, we refer to
her as Erica to avoid confusion. We mean no disrespect in doing so.
1 ¶4 The People charged Manzanares with one count of first degree
murder – after deliberation and one count of first degree assault. At
trial, defense counsel Michael Emmons’s opening statement focused
on a general denial defense, alerting the jury to a lack of either
physical evidence or credible testimony placing Manzanares at the
house that night. The prosecution’s case included testimony from
eyewitness Bam; three teenaged earwitnesses who were in the home
and testified that they heard “No, Duane . . .”; and Manzanares’s
cellmate, to whom Manzanares confessed to the shootings. In
closing, Emmons attempted to poke holes in the prosecution’s case
and argued that Bam had been the gunman.
¶5 The jury was instructed on the lesser included offense of
second degree murder in addition to the charged crimes, but it
found Manzanares guilty as charged. The trial court sentenced him
to consecutive terms of life without the possibility of parole and
thirty years in the custody of the Department of Corrections (DOC).
A division of this court affirmed the convictions on direct appeal.
See People v. Manzanares, slip op. at 5, (Colo. App. No. 08CA1427,
May 19, 2011) (not published pursuant to C.A.R. 35(f)) (concluding
2 that “there was overwhelming evidence of Manzanares’s guilt”). The
convictions became final in December 2011.
II. Postconviction Proceedings
¶6 In November 2019, Manzanares filed a pro se Crim. P. 35(c)
motion. The district court appointed postconviction counsel, who
filed a supplemental motion arguing that Emmons had provided
ineffective assistance by (1) asserting a general denial/alternate
suspect theory of defense instead of pursuing a heat of passion
mitigator to the lesser included offense of second degree murder
and (2) advising Manzanares to decline the prosecution’s offer of a
guilty plea in exchange for a twenty-year prison sentence. The
court ruled that the motion was untimely as to Manzanares’s first
degree assault conviction, denied the claims set forth in the pro se
motion, and ordered the prosecution to respond to the two
ineffective assistance claims raised by postconviction counsel.
¶7 The district court held an evidentiary hearing on those two
claims. It heard testimony from Emmons, Manzanares, three of
Manzanares’s current and prior relatives, and an expert in criminal
defense. Among many other factual findings, the court found that
• Emmons testified credibly.
3 • Emmons spoke with Manzanares before trial about the
heat of passion document Manzanares had when he was
arrested.
• Emmons made a strategic decision not to pursue a heat
of passion mitigation defense based on various
weaknesses in the prosecution’s evidence and to avoid
conceding that Manzanares was in the bedroom when
Erica was murdered.
• Before trial, the prosecution offered a plea deal in
exchange for a sentence of between sixteen and forty-
eight years in the DOC, but Manzanares did not accept it.
• Emmons did not remember a twenty-year plea offer,
there was no physical evidence of such an offer, and the
witnesses who testified that there had been a twenty-year
offer were not credible.
¶8 The district court ultimately found that Manzanares had failed
to establish a right to postconviction relief and denied his Crim. P.
35(c) motion. On appeal, Manzanares generally challenges the
court’s denial of his ineffective assistance claims. We perceive no
error.
4 III. Standard of Review and Applicable Law
¶9 In a Crim. P. 35(c) proceeding, we presume the validity of a
conviction, and the defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to postconviction
relief. Dunlap v. People, 173 P.3d 1054, 1061 (Colo. 2007). When a
district court’s ruling follows an evidentiary hearing, we review the
denial of a Crim. P. 35(c) motion as a mixed question of fact and
law. People v. Corson, 2016 CO 33, ¶ 25.
¶ 10 We defer to the court’s assessment of the weight and
credibility of witness testimony. Dunlap, 173 P.3d at 1061-62; see
also Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567 (Colo.
1991) (“It is . . . the province of the court, as the trier of fact, to
determine the credibility of the witnesses and the weight to be given
their testimony.”). And we defer to the court’s factual findings
unless “they are so clearly erroneous as to find no support in the
record.” People v. Beauvais, 2017 CO 34, ¶ 22. But we review de
novo the court’s ultimate legal conclusions. Dunlap, 173 P.3d at
1063.
¶ 11 To establish ineffective assistance of counsel, a defendant
must satisfy the two-prong test set forth in Strickland v.
5 Washington, 466 U.S. 668, 687 (1984). First, the defendant must
show that counsel’s acts or omissions fell outside the wide range of
professionally competent assistance. Id. at 687-89. Judicial
scrutiny is highly deferential on this prong — we must “evaluate
particular acts and omissions from counsel’s perspective at the
time.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). Second, a
defendant must show that they suffered prejudice from counsel’s
deficient performance, such 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.
IV. Discussion
A. Assault Conviction
¶ 12 First, we agree with the district court that Manzanares’s
motion is untimely as to his first degree assault conviction. Section
16-5-402(1), C.R.S. 2024, provides that postconviction challenges to
non-class 1 felony convictions must be brought within three years
of the conviction becoming final. Manzanares did not file his
motion until almost eight years after his convictions became final —
nearly five years too late to challenge his class 3 felony assault
conviction. Accordingly, we address his claims only as to his first
6 degree murder conviction. See People v. Stovall, 2012 COA 7M,
¶ 37.
B. Murder Conviction
¶ 13 Turning to Manzanares’s challenge to his murder conviction,
we agree with the district court that Manzanares failed to prove his
two ineffective assistance claims. We discuss each claim in turn.
1. Choice of Defense
¶ 14 Heat of passion is a partial defense that mitigates second
degree murder from a class 2 felony to a class 3 felony.
§ 18-3-103(3), C.R.S. 2024. This mitigating circumstance occurs if
the act causing the death is “performed upon a sudden heat of
passion caused by a serious and highly provoking act of the
intended victim, affecting the defendant sufficiently to excite an
irresistible passion in a reasonable person.” § 18-3-103(3)(b); see
also § 18-3-202(2)(a), C.R.S. 2024.
¶ 15 The district court found, with record support, that Emmons
reasonably chose a general denial/alternate suspect defense after
looking at all the evidence, including that (1) the prosecution had
no physical evidence pointing to Manzanares as the shooter; (2) the
only eyewitness, Bam, “had credibility issues”; and (3) the
7 prosecution could have used Manzanares’s pre-arrest possession of
heat of passion research to undermine that mitigator. The court
further observed that to concede culpability for the shootings in
pursuit of a heat of passion mitigator — exposing Manzanares to an
aggregate sentence of twelve-and-a-half to forty years on both
crimes — offered a negligible benefit and significant risk relative to
the rejected plea offer of sixteen to forty-eight years. The court
ultimately concluded that Emmons’s strategic choice of defense did
not amount to deficient representation. We agree.
¶ 16 The defendant’s burden is particularly high when defense
strategy is questioned. If there is a reasonable basis for defense
counsel’s strategic decision, “the decision enjoys a strong
presumption of correctness.” Dunlap, 173 P.3d at 1075. Indeed,
“strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690 (emphasis added).
¶ 17 For the reasons articulated by the district court, we conclude
that there was a reasonable basis for Emmons’s choice of defense.
Moreover, we note that a heat of passion mitigator is inapplicable
when, as could have been demonstrated in this case, a defendant
8 “intentionally put himself in the provoking situation.” See People v.
Valdez, 183 P.3d 720, 723 (Colo. App. 2008). Because Manzanares
did not establish that Emmons’s defense strategy fell outside the
professionally competent range, we conclude that the district court
properly denied this ineffective assistance claim.
2. Plea Advice
¶ 18 The district court found, with record support, that (1) Emmons
did not remember a twenty-year plea offer; (2) there was no physical
evidence of such an offer; (3) the witnesses who testified that there
had been a twenty-year offer were not credible; and, ultimately,
(4) Manzanares had failed to demonstrate that a twenty-year plea
offer ever existed. We defer to the district court’s factual findings.
See Dunlap, 173 P.3d at 1061-62; Beauvais, ¶ 22. Because
Manzanares did not establish the existence of a twenty-year plea
offer — a factual ground for his claim of deficient plea advice
regarding such an offer — his ineffective plea advice claim cannot
succeed. We conclude that the district court properly denied this
claim.
V. Disposition
¶ 19 The order is affirmed.
9 JUDGE PAWAR and JUDGE SCHUTZ concur.