23CA0747 Peo v McMillian 12-12-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0747 City and County of Broomfield District Court No. 18CR116 Honorable Sharon Holbrook, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Donald Lee McMillian,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE LIPINSKY J. Jones and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Donald Lee McMillian appeals the postconviction court’s order
denying his Crim. P. 35(c) claims without an evidentiary hearing.
We affirm.
I. Background
A. The Charges, the Plea Agreement, and the Sentence
¶2 A man attacked the victim, a seventy-eight-year-old woman, in
a public park. He threatened her with a knife, stabbed her, and
attempted to sexually assault her. The man ran off after a
bystander yelled at him. Minutes after the incident, police officers
detained McMillian, and less than an hour later, the bystander
identified him as the attacker.
¶3 The prosecution charged McMillian with two counts of first
degree kidnapping, three counts of sexual assault of an at-risk
person, one count of first degree assault, and one count of
menacing.
¶4 McMillian asked his counsel “to seek out an agreement that
we could make with the district attorney.” Defense counsel did so.
McMillian and the prosecution entered into a plea agreement under
which McMillian pleaded guilty to three added counts — first degree
assault on an at-risk person with serious bodily injury and use of a
1 deadly weapon, second degree kidnapping by seizing the victim with
a real or simulated weapon, and attempted sexual assault by
overcoming the victim’s will. He stipulated to a fifty-two-year prison
sentence, and the prosecution consented to dismiss the original
counts.
¶5 At the providency hearing, the court confirmed that McMillian
and his counsel understood and agreed to the plea. McMillian
affirmed that he had read the Crim. P. 11 advisement, he had been
given enough time to discuss it with his attorney, and his attorney
had answered his questions. In addition, McMillian confirmed that
he understood the potential penalties if he were convicted on the
original charges and the sentence to which he was stipulating. The
providency court accepted McMillian’s pleas, finding that they were
knowingly, voluntarily, and intelligently given.
¶6 At the sentencing hearing, defense counsel informed the court
that McMillian understood he would be required to serve
seventy-five percent of his sentence before he would be eligible for
parole, meaning that, “given [McMillian’s] age and general health
and the health of people in the Department of Corrections, it would
most likely be a life sentence.” McMillian acknowledged that he
2 would die in prison, saying, “I don’t think I have 52 years in me.” In
addition, defense counsel requested that the court defer its decision
on whether McMillian should be designated a sexually violent
predator (SVP) to allow counsel time to investigate McMillian’s
intellectual functioning. The court granted defense counsel
fourteen days to file a motion on the SVP designation.
¶7 The court sentenced McMillian to fifty-two years in the custody
of the Department of Corrections, as stipulated. In concluding that
the sentence was appropriate, the court cited the crime’s violent
nature and McMillian’s lack of credibility in claiming he had
“blacked out” from alcohol use at the time of the offense.
¶8 At the later SVP designation hearing, McMillian’s counsel
argued that McMillian had developmental disabilities that affected
his “cognizant abilities” and, therefore, he could not be deemed an
SVP. The court found that the evidence did not establish that
McMillian was developmentally disabled, and it designated him an
SVP.
B. The Postconviction Proceedings
¶9 McMillian filed a pro se motion for postconviction relief under
Crim. P. 35(c), asserting that he would not have pleaded guilty if he
3 had known he would have to “do that much time.” The court
appointed counsel, who filed Crim. P. 35(c) petitions challenging the
constitutionality of McMillian’s guilty plea and his competency.
¶ 10 McMillian’s counsel argued that McMillian had cognitive and
intellectual delays and struggled with reading; he had not
voluntarily made the guilty plea because he had not fully
understood the potential penalties, the constitutional rights he was
waiving, and the elements of the original charges; and he was
incompetent at the time he pleaded guilty. In addition, McMillian’s
counsel asserted that plea counsel was ineffective.
¶ 11 The postconviction court denied McMillian’s Crim. P. 35(c)
motion and his counsel’s petitions without a hearing. The
postconviction court determined that
• The record belied McMillian’s assertion that, “due to his
low intellectual functioning, he could not adequately
consult with counsel and assist in his defense.”
• McMillian fully understood the guilty plea at the time.
• McMillian’s claims — that his low intellectual functioning
prevented him from understanding the advisements of
the rights he was waiving by pleading guilty, he did not
4 understand the elements of the crimes to which he
pleaded guilty, and he did not have a rational and factual
understanding of the criminal proceedings — “largely
duplicat[ed]” his previous claims that he could neither
assist in his defense nor understand the plea agreement,
and he did not overcome the facts in the record.
• McMillian failed to establish that his plea counsel
provided ineffective assistance.
II. Analysis
A. Standard of Review
¶ 12 “We review de novo a district court’s decision to deny a Crim.
P. 35(c) motion without a hearing.” People v. Higgins, 2017 COA 57,
¶ 11, 413 P.3d 298, 300. However, there is a tension “between de
novo review and the supreme court rule authorizing postconviction
courts to make some findings of fact without a hearing in deciding
Crim. P. 35(c) motions.” People v. McGlaughlin, 2018 COA 114,
¶ 26, 428 P.3d 691, 697. “To give effect to the supreme court’s
default rule, deference to a postconviction court’s factual finding by
application of the clearly erroneous standard is warranted only
when the factfinding was made using accepted procedures and
5 when the record clearly establishes the fact.” Id. at ¶ 27, 428 P.3d
at 697.
B. The Validity of McMillian’s Guilty Plea
1. Controlling Law
¶ 13 A postconviction court may deny a Crim. P. 35(c) motion
without a hearing “if the motion, files, and record clearly establish
that the defendant is not entitled to relief; if the allegations, even if
true, don’t provide a basis for relief; or if the claims are bare and
conclusory in nature and lack supporting factual allegations.”
People v. Delgado, 2019 COA 55, ¶ 8, 442 P.3d 1021, 1024. “A
defendant need not set forth the evidentiary support for his
allegations in his initial Crim. P. 35 motion; instead, a defendant
need only assert facts that if true would provide a basis for relief
under Crim. P. 35.” White v. Denver Dist. Ct., 766 P.2d 632, 635
(Colo. 1988).
¶ 14 In addition, in determining whether a defendant was mentally
competent to enter into a plea agreement, the court must
“distinguish between mental capacity, for purposes of assessing a
defendant’s competency to enter a guilty plea, and mental state, for
6 purposes of assessing the knowing and voluntary nature of the
plea.” People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).
The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.
Id. (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)).
¶ 15 A guilty plea is invalid if the defendant was mentally
incompetent at the time of the plea. Von Pickrell v. People, 431 P.2d
1003, 1005 (Colo. 1967). “[T]he law presumes that a defendant is
competent; thus, the burden to prove incompetency rests with the
accused.” People v. Karpierz, 165 P.3d 753, 758 (Colo. App. 2006).
2. Additional Facts
¶ 16 Following the providency hearing, Terry L. Taylor, a Sex
Offense Management Board Full Operating Level Evaluator,
conducted a presentence psychosexual evaluation of McMillian.
Taylor found that McMillian’s vocabulary and verbal abstract
reasoning were in the “Extremely Low” range and that his “abstract
reasoning was significantly higher than his vocabulary, which could
7 indicate a learning disorder, lack of motivation, environmental
deprivation, or other factors that could impede his learning or
remembering.” Taylor found that McMillian was cognitively,
emotionally, and socially underdeveloped, and that he “endorsed
items consistent with Antisocial, Schizoid, and Obsessive
Compulsive personality features.” She concluded, however, that he
met the criteria for an SVP.
¶ 17 After McMillian and his postconviction counsel filed the Crim.
P. 35(c) motion and petitions, counsel engaged Valerie Sims, Psy.D.,
and Kendra Sherwood, Ph.D., to conduct a full neuropsychological
evaluation of McMillian. Drs. Sims and Sherwood opined that
McMillian’s intellectual functioning was in the low average range,
and that his reading and writing abilities were in the extremely low
range. Drs. Sims and Sherwood said he had impaired central
auditory processing, which would affect his ability to process one
idea when another is presented. They “highly recommended that
[McMillian] be asked to explain concepts back to the reader to
ensure accurate comprehension.”
¶ 18 Drs. Sims and Sherwood concluded that, because of
McMillian’s low reading level, he likely would not comprehend
8 complex legal materials, such as legal documents, and may
inaccurately suggest that he understands what he has read.
Further, they said that he may struggle to comprehend complex
materials even if they are read aloud to him.
3. McMillian’s Mental Competency
¶ 19 McMillian contends on appeal that the postconviction court
erred by finding that he was competent at the time he pleaded
guilty because his low intellectual functioning affected his ability to
understand the terms of the plea agreement. McMillian’s counsel
asserted that Drs. Sims and Sherwood’s evaluation “brought to light
significant concerns about [McMillian’s] intellectual functioning.”
(Emphasis added.)
¶ 20 As noted above, Taylor found no indication that McMillian was
developmentally disabled or mentally incompetent. Similarly, Drs.
Sims and Sherwood did not opine that McMillian was incompetent.
Rather, they concluded that McMillian “presented with two learning
disorders, including significant deficits in his abilities to read and
write.” Those learning disorders did not establish that McMillian
was mentally incompetent and, therefore, did not establish that he
9 lacked the ability to understand the proceedings at the providency
hearing. See Venzor, 121 P.3d at 262.
¶ 21 In sum, the court did not err because McMillian’s allegations,
even if true, did not provide a basis for relief.
4. McMillian’s Ability to Voluntarily, Knowingly, and Intelligently Enter into the Guilty Plea
¶ 22 McMillian contends that the postconviction court erred by
concluding, without a hearing, that he made his guilty plea
knowingly, intelligently, and voluntarily because of “factual issues
over the extent of his low intellectual functioning.” Further,
McMillian argues that the court’s findings were unreliable because
they “were made without the witnesses’ assertions being subject to
the crucible of cross[-]examination.”
¶ 23 The postconviction court considered the reports that
McMillian’s counsel submitted in determining that McMillian’s low
intellectual functioning did not prevent him from knowingly,
voluntarily, and intelligently negotiating and entering into a plea
“that was favorable to him and limited his liability at trial.” The
court noted that it had “a comprehensive review of [McMillian’s]
history, status, health[,] and mental condition,” as well as
10 information regarding McMillian’s “social information, his education
and past employment, his substance abuse history, and both his
physical and psychological condition.” After considering Drs. Sims
and Sherwood’s opinions, the court concluded that the facts in the
record clearly established that McMillian’s low intellectual
functioning did not support his argument that his plea agreement
should be set aside.
¶ 24 McMillian asserts that the postconviction court’s findings are
unreliable because the court did not grant McMillian’s lawyer the
opportunity to cross-examine the witnesses. The test for
determining whether, without a hearing, the postconviction court
erred by determining that a defendant knowingly, intelligently, and
voluntarily entered into a guilty plea requires us to consider
whether “the motion, files, and record clearly establish[ed] that the
defendant [was] not entitled to relief; . . . the allegations, even if
true, d[id] [not] provide a basis for relief; or . . . the claims [were]
bare and conclusory in nature and lack[ed] supporting factual
allegations.” Delgado, ¶ 8, 442 P.3d at 1024. The postconviction
court acknowledged that McMillian had low intellectual functioning
but nonetheless determined that the record clearly established that
11 McMillian’s level of intellectual functioning did not impact his
mental capacity or his ability to knowingly, intelligently, and
voluntarily enter into the plea agreement.
¶ 25 The only words that McMillian spoke during the providency
hearing to confirm that he understood the plea agreement were
“Yes,” “No,” and “Guilty.” However, there is no evidence that
anyone influenced McMillian’s answers to the court’s questions at
the providency hearing. More significantly, the providency court
asked McMillian open-ended questions and gave him the
opportunity to speak up if he did not understand the information
provided to him about the plea agreement. The fact that the
providency court did not ask McMillian to repeat every term of the
guilty plea to confirm he understood it does not mean that
McMillian did not comprehend the terms of the plea agreement.
Because McMillian’s statements at the sentencing hearing, noted
above, demonstrated his understanding of the length of the
stipulated sentence, we disagree with McMillian that the brevity of
his responses to the providency court’s questions is a sufficient
basis for invalidating his guilty plea.
12 ¶ 26 Thus, the postconviction court did not err by denying
McMillian a hearing on his challenge to his guilty plea.
C. The Effectiveness of Plea Counsel
¶ 27 A postconviction court may deny, without an evidentiary
hearing, a Crim. P. 35(c) claim that counsel was ineffective “if the
record directly refutes the defendant’s claims or if the motion, files,
and existing record clearly establish that the defendant’s
allegations, even if proven true, would fail to satisfy one or the other
prong” of Strickland v. Washington, 466 U.S. 668 (1984). People v.
Phipps, 2016 COA 190M, ¶ 19, 411 P.3d 1157, 1162. “Bare and
conclusory allegations are insufficient to entitle a defendant to an
evidentiary hearing on his postconviction motion.” Id. at ¶ 18, 411
P.3d at 1162.
¶ 28 “A defendant’s right in a criminal proceeding to receive the
reasonably effective assistance of an attorney acting as his diligent
and conscientious advocate is guaranteed by the United States and
Colorado Constitutions.” Davis v. People, 871 P.2d 769, 772 (Colo.
1994). A defendant’s conviction must be reversed based on the
ineffectiveness of counsel if the defendant meets his burden of
13 showing that “counsel’s performance was deficient” and “the
deficient performance prejudiced the defense.” Strickland, 466 U.S.
at 687. The two-part Strickland test “applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Hill v. Lockhart,
474 U.S. 52, 58 (1985).
¶ 29 Strickland’s first prong is the same whether a defendant
challenges his guilty plea or presents other arguments regarding
the ineffectiveness of counsel. Hill, 474 U.S. at 58-59. The
defendant must show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
¶ 30 In challenges to guilty pleas based on the alleged
ineffectiveness of counsel, Strickland’s “prejudice” prong focuses on
“whether counsel’s constitutionally ineffective performance affected
the outcome of the plea process.” Hill, 474 U.S. at 59. Thus, to
satisfy the “prejudice” requirement in such cases, “the defendant
must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. Further, the defendant “must
convince the court that a decision to reject the plea bargain would
14 have been rational under the circumstances.” Padilla v. Kentucky,
559 U.S. 356, 372 (2010).
¶ 31 “Some objective evidence must corroborate the defendant’s
testimony that he would have made a different decision about the
plea if he had been properly advised.” People v. Sifuentes, 2017
COA 48M, ¶ 20, 410 P.3d 730, 736. The Sifuentes division
described different types of such objective evidence — the strength
of the prosecution’s case, the plea deal’s attractiveness, and the
risks of going to trial. Id. at ¶¶ 21-22, 410 P.3d at 736.
2. Deficient Performance
¶ 32 As noted above, McMillian contends that his plea counsel’s
performance was deficient because counsel failed to thoroughly
investigate McMillian’s competency and mental health, consult an
expert, raise competency as an issue, and investigate the charges
before advising McMillian to accept the plea offer. In addition,
McMillian alleges that plea counsel failed to obtain the records
necessary to investigate McMillian’s mental health and
developmental history. Indeed, the record does not indicate that
plea counsel arranged for an independent professional to evaluate
McMillian for competency before he entered his guilty plea.
15 McMillian argues that the court would not have accepted the guilty
plea if plea counsel had challenged his competency through the
results of such an evaluation.
¶ 33 The postconviction court, however, found that the record
showed that McMillian “brought the plea bargain to the prosecution
because, although it was a long sentence, it was favorable when
compared with the alternative sentence that could have resulted
from conviction at trial.” It said that McMillian failed to sufficiently
establish that his counsel’s performance was deficient, noting that
counsel “sufficiently litigated [McMillian’s] case by having his
conditions assessed and addressing them in full” and concluding
that counsel’s “performance was well within the range of reasonable
competence demanded of attorneys in criminal cases.”
¶ 34 The record does not support the postconviction court’s finding
that plea counsel had McMillian’s intellectual functioning assessed
and fully addressed the issue. However, we agree with the
postconviction court that McMillian’s deficiency claim is vague,
conclusory, and lacks supporting factual allegations. For example,
McMillian fails to indicate what additional information an
investigation into his competency would have revealed or the
16 specific information that plea counsel could have presented to the
court to establish that McMillian was incompetent to enter into the
plea agreement. In a case with analogous facts, a division of this
court held that plea counsel was not deficient by not investigating
whether the defendant’s child died in utero, despite evidence
showing the child was born alive, because “the mere possibility that
additional investigation would have revealed useful information
does not establish ineffective assistance.” People v. Pendleton, 2015
COA 154, ¶ 34, 374 P.3d 509, 516. “Such conclusory allegations
are insufficient to demonstrate that [the defendant] may be entitled
to postconviction relief and that the record might contain specific
facts that would substantiate his claim.” People v. Osorio, 170 P.3d
796, 801 (Colo. App. 2007).
¶ 35 For these reasons, McMillian failed to meet his burden of
establishing his claim under Strickland’s deficient performance
prong.
3. Prejudice
¶ 36 McMillian contends that plea counsel’s failure to investigate
competency, raise competency, and investigate the case
demonstrates “a reasonable probability that, but for counsel’s
17 errors, [McMillian] would not have pleaded guilty and would have
insisted on going to trial.” (quoting Hill, 474 U.S. at 59). The
record undercuts this argument, however.
¶ 37 McMillian argues that the second Sifuentes factor — the plea
offer’s attractiveness — provides objective evidence that he could
have rationally chosen to proceed to trial instead of stipulating to a
fifty-two-year sentence. He asserts that the result under the
worst-case scenario at trial would have been no worse than the
result under the plea agreement.
¶ 38 As McMillian acknowledges in his opening brief, the
worst-case scenario that McMillian faced if convicted on all counts
was a life sentence without parole on the first degree kidnapping
charge and lengthy consecutive sentences on the first degree
assault and the sexual assault counts. McMillian argues that his
determinate fifty-two-year sentence is effectively the same sentence
he would have received if a jury had convicted him on the original
charges — a life sentence. For this reason, McMillian contends that
the plea deal was not attractive and that his risk of going to trial
was low. He asserts this is objective evidence that it would have
18 been rational for him to reject the guilty plea if his plea counsel had
properly advised him. See Sifuentes, ¶¶ 20-21, 410 P.3d at 736.
¶ 39 For three reasons, the record does not support McMillian’s
assertion that there was a reasonable probability that, but for plea
counsel’s allegedly deficient performance, he would have insisted on
going to trial. First, McMillian himself initiated the plea
negotiations when he asked his counsel “to seek out an agreement”
with the prosecution. Second, the prosecution’s case was strong.
At least two reliable witnesses could have testified at trial — the
victim and the bystander who identified McMillian as the attacker.
Third, contrary to McMillian’s assertion, “the end result under the
worst[-]case scenario at trial” was indeed worse than the sentence
to which he stipulated. McMillian acknowledges that, if a jury
convicted him on all seven counts, he would have been sentenced to
life without parole, followed by lengthy consecutive sentences on the
sexual assault and first degree assault counts. By pleading guilty,
McMillian received a determinate fifty-two-year sentence with the
possibility of parole.
¶ 40 Rejecting the plea agreement would not have been rational
under the circumstances. Therefore, the postconviction court did
19 not err by denying McMillian’s prejudice argument without a
hearing.
¶ 41 (In addition, we note that, to support his argument under
Strickland’s prejudice prong, McMillian’s counsel attached a U.S.
Census Bureau publication regarding life expectancy in the United
States to the opening brief. The publication does not appear in the
record, however. Similarly, in their answer brief, the People
referenced a website that also does not appear in the record — the
Colorado Department of Corrections Offender Search site.
McMillian also mentions this site in his opening brief. We will not
consider the publication or the website, however, because they were
not presented to the postconviction court. We remind counsel that
“[w]e are limited to the record presented and may consider only
arguments and assertions supported by the evidence in the record.”
Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004).)
¶ 42 For the above reasons, we reject McMillian’s claim that his
plea counsel was ineffective.
III. Disposition
¶ 43 The order is affirmed.
JUDGE J. JONES and JUDGE SULLIVAN concur.