Peo v. Moreno-Garcia

• Court: Colorado Court of Appeals
• Decided: February 19, 2026
• Docket: 24CA0339
• Status: Unpublished

Opinion

24CA0339 Peo v Moreno-Garcia 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0339 Arapahoe County District Court No. 21CR2341 Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marco Moreno-Garcia,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE J. JONES Lum and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 19, 2026

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Marco Moreno-Garcia, Pro Se ¶1 Defendant, Marco Moreno-Garcia, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion without a hearing.

We affirm.

I. Background

¶2 Nineteen-year-old Moreno-Garcia told police officers that he

had sex multiple times with Y.M., the twelve-year-old victim in this

case. And Y.M. told officers that Moreno-Garcia had given her

methamphetamine. Moreno-Garcia was arrested and charged with

four counts of sexual assault on a child (pattern of abuse) and one

count of distribution of a schedule I or II controlled substance to a

minor.

¶3 Moreno-Garcia entered into a plea agreement with the People

pursuant to which the People dropped the five charges noted above

and substituted two counts of sexual exploitation of a child in

violation of section 18-6-403(3)(a), C.R.S. 2025. Following a

hearing, the district court accepted the plea and sentenced Moreno-

Garcia to eight years in the custody of the Department of

Corrections on the first count, to be followed by fifteen years of Sex

Offender Intensive Supervised Probation (SOISP) on the second

count.

1 ¶4 Moreno-Garcia subsequently moved for Rule 35(c)

postconviction relief. He asserted that his trial counsel provided

ineffective assistance, his plea was involuntary, and the district

court illegally sentenced him.

¶5 The postconviction court denied the motion without a hearing.

It concluded that, based on the record, Moreno-Garcia had failed to

allege facts showing that his counsel had provided ineffective

assistance, he had voluntarily pleaded guilty, and the district court

had legally sentenced him to consecutive sentences.

II. Discussion

¶6 Moreno-Garcia contends that he is entitled to a hearing on his

motion because he alleged facts that, if proved, would show that (1)

his trial counsel provided constitutionally deficient representation

concerning his plea and (2) the district court illegally sentenced

him. We reject these contentions.

A. Standard of Review

¶7 Summary denial of a motion for postconviction relief is

appropriate “if the claims raise only an issue of law, or if the

allegations, even if true, do not provide a basis for relief[, or] if the

claims are bare and conclusory in nature, and lack supporting

2 factual allegations.” People v. Venzor, 121 P.3d 260, 262 (Colo.

App. 2005). We review a postconviction court’s summary denial of

a postconviction motion de novo. People v. Gardner, 250 P.3d 1262,

1266 (Colo. App. 2010).

B. Ineffective Assistance of Counsel

¶8 Moreno-Garcia contends that he received ineffective assistance

of counsel because his attorney failed to investigate his “deception”

defense; investigating this defense would have put him in a better

position to negotiate a plea deal; and his attorney coerced him into

pleading guilty, rendering his plea involuntary. We reject these

contentions.

¶9 A defendant asserting ineffective assistance of counsel must

meet the two-prong test established in Strickland v. Washington,

466 U.S. 668 (1984). Davis v. People, 871 P.2d 769, 772 (Colo.

1994). The first prong requires the defendant to show that “in light

of all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690. Courts must “indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” People v. Luong, 2016 COA

3 13M, ¶ 16 (quoting Strickland, 466 U.S. at 689). The second prong

requires the defendant to “show that the deficient performance

prejudiced” him. Strickland, 466 U.S. at 687.

¶ 10 Moreno-Garcia first contends that his counsel failed to

investigate his assertion that Y.M. had misrepresented her age to

him; he claims that Y.M.’s misrepresentation of her age could be

confirmed by witnesses and by other evidence showing a history of

her using a false identity. He argues that had his counsel

investigated this defense, “these viable leads . . . would have

exculpated” him. But the premise of his argument — that his

reasonable belief about the victim’s age provided a defense to the

charges — is wrong.

¶ 11 “If the criminality of conduct depends on a child being younger

than fifteen years of age, it shall be no defense that the defendant

did not know the child’s age or that the defendant reasonably

believed the child to be fifteen years of age or older.” § 18-1-

503.5(3), C.R.S. 2025. The sexual assault charges included as an

element that the victim was “less than fifteen years of age and the

actor [was] at least four years older than the victim.” § 18-3-405(1),

C.R.S. 2025. Y.M. was twelve years old at the time of the offenses,

4 so Moreno-Garcia wouldn’t have been able to assert a mistaken-

belief-of-age defense at trial. See People v. Sparks, 2018 COA 1,

¶ 7. Thus, as a matter of law, Moreno-Garcia’s counsel couldn’t

have provided ineffective assistance by failing to investigate this

claim and instead focusing on the fact that Moreno-Garcia “had

confessed to engaging” in a sexual relationship with Y.M. See

Dunlap v. People, 173 P.3d 1054, 1065 (Colo. 2007) (“Trial counsel

acts reasonably . . . by making a reasonable decision that such

investigation is unnecessary.”).1

¶ 12 Moreno-Garcia also contends that if counsel had investigated

his deception defense, he would have been in a more favorable

negotiating position. But assertion of a clearly unavailable defense

wouldn’t have put Moreno-Garcia in a better position to negotiate a

plea agreement.

¶ 13 Lastly, Moreno-Garcia contends that his counsel provided

ineffective assistance in connection with plea negotiations by saying

“misleading and inaccurate statements that no viable defense

1 In fact, Moreno-Garcia admitted to the police and concedes several

times in his opening brief that he had sex with Y.M.

5 existed in this case.” This “coercion,” he says, rendered his plea

involuntary.

¶ 14 “For a plea of guilty to be valid, it must be knowingly,

intelligently, and voluntarily made.” People v. Campbell, 174 P.3d

860, 862 (Colo. App. 2007) (citing People v. Pozo, 746 P.2d 523, 525

(Colo. 1987)). A defendant’s counsel may not induce a guilty plea

through misrepresentation. Chae v. People, 780 P.2d 481, 485-86

(Colo. 1989) (citing Brady v. United States, 397 U.S. 742, 755

(1970)). But “[c]ompetent advice of counsel, albeit stated in strong

language, does not constitute coercion.” People v. Adams, 836 P.2d

1045, 1048 (Colo. App. 1991); see also People v. Starkweather, 159

P.3d 665, 668 (Colo. App. 2006) (“It is defense counsel’s duty to

discuss the case — including its probable outcome — in complete

candor with a defendant.”).

¶ 15 Moreno-Garcia’s argument is, again, premised on his assertion

that he had a viable misrepresentation defense. He didn’t. And, as

noted, he admitted that he had sex with the victim. Under these

circumstances, we don’t see how counsel accurately advising him

6 that “no viable defense existed in this case” caused him to

involuntarily accept the plea agreement.2

C. Sentencing Claims

¶ 16 Moreno-Garcia contends that his sentence is illegal because

the prosecution failed to file a charging document that included the

offenses to which he pleaded guilty and the district court

improperly sentenced him to consecutive sentences in violation of

section 18-1-408, C.R.S. 2025, and Allman v. People, 2019 CO 78.3

We disagree with these contentions.

1. Formal Charging Document

¶ 17 A formal charging document establishes jurisdiction for felony

criminal prosecutions. People v. Williams, 984 P.2d 56, 59-60

(Colo. 1999). A valid charging document contains “the elements of

the offense charged and fairly informs a defendant of the charge

against which he must defend and . . . enables him to plead an

2 Because Moreno-Garcia’s allegations don’t show a basis for finding

that his counsel provided a constitutionally deficient performance, we don’t need to consider whether his counsel’s performance prejudiced him. See People v. Luong, 2016 COA 13M, ¶ 33. 3 On appeal, Moreno-Garcia couches these claims as ineffective

assistance of counsel claims. They fail either as straight illegal sentence claims or ineffective assistance claims.

7 acquittal or conviction in bar of future prosecutions for the same

offense.” Id. at 60 (quoting Hamling v. United States, 418 U.S. 87,

117 (1974)).

¶ 18 The record refutes Moreno-Garcia’s contention that the

prosecution failed to file a formal charging document for the two

charges to which he pleaded guilty. The prosecution filed a formal

charging document with the court, and the court granted the

prosecution leave to do so.

2. Violation of Section 18-1-408

¶ 19 Under section 18-1-408(3), when a defendant is charged with

multiple offenses that are supported by identical evidence, the

sentences imposed must run concurrently. But when a defendant

waives his right to have the prosecution establish a factual basis as

part of a plea agreement, he waives his right “to demand concurrent

sentencing pursuant to section 18-1-408(3).” People v. Maestas,

224 P.3d 405, 409 (Colo. App. 2009).

8 ¶ 20 In this case, Moreno-Garcia waived his right to establish a

factual basis as part of his plea agreement.4 Thus, he waived his

right to demand concurrent sentencing.

3. Violation of Allman v. People

¶ 21 In Allman, the supreme court held that “when a court

sentences a defendant for multiple offenses in the same case, it may

not impose imprisonment for certain offenses and probation for

others.” Allman, ¶ 40. But subsequent case law makes clear that

Allman’s holding doesn’t apply to “a multi-count case to prison for a

non-sex offense followed by SOISP for another offense.” People v.

Keen, 2021 CO 50, ¶ 2; see also People v. Ehlebracht, 2020 COA

132, ¶ 13 (holding that Allman doesn’t apply to sentences under the

Colorado Sex Offender Lifetime Supervision Act of 1998).

¶ 22 The Colorado Sex Offender Lifetime Supervision Act of 1998

defines which offenses are considered “sex offenses” for its

purposes. See § 18-1.3-1003(5)(a)(I)-(XIII), C.R.S. 2025. Sexual

exploitation of a child — the offense that Moreno-Garcia pleaded

guilty to — isn’t such an offense. Thus, Moreno-Garcia pleaded

4 We also reject Moreno-Garcia’s contention that the charges were

necessarily based on identical evidence.

9 guilty to two non-sex offenses. And, as previously mentioned,

Allman’s holding doesn’t apply to sentences that include “prison for

a non-sex offense followed by SOISP for another offense.” Keen,

¶ 2. Thus, the court didn’t violate the holding in Allman by

sentencing Moreno-Garcia to prison for one count of sexual

exploitation followed by SOISP for the second count of sexual

exploitation.

III. Disposition

¶ 23 The order is affirmed.5,6

5 At the beginning of his opening brief, Moreno-Garcia asserts, in

purely conclusory fashion, that “[d]efense [c]ounsel failed to procure a mitigation expert to assist with sentencing.” And at the end of his opening brief, he asserts that his sentence is “[e]xcessive and grossly disproportionate” in violation of the Eighth Amendment. Because Moreno-Garcia doesn’t develop any argument on these points, we decline to address them. See People v. Sanders, 2023 CO 62, ¶ 16. 6 In his reply brief, Moreno-Garcia asserts that “the recent

enactment of the Forensic Integrity Act set forth in CRS 16-12-310 - 312 provides for an amendment of the factual pleadings.” The statute’s intent is to provide postconviction relief for defendants “who receive[] a notice of reported wrongful action” regarding laboratory employees. § 16-12-310(1), C.R.S. 2025. We aren’t sure how this statute pertains to Moreno-Garcia’s conviction, as he makes no assertion about receiving a notice. And because Moreno- Garcia raises this argument for the first time in his reply brief, we decline to address it. People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).

10 JUDGE LUM and JUDGE MEIRINK concur.