22CA1176 Peo v Morrison 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1176 Jefferson County District Court No. 09CR2494 Honorable Laura A. Tighe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Adrian Devon Morrison,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Adrian Devon Morrison appeals the postconviction court’s
order denying his Crim. P. 35(c) claim of ineffective assistance of
postconviction counsel. We affirm.
I. Background
¶2 A jury found Morrison guilty of solicitation for prostitution,
theft, use of a controlled substance, and conspiracy to possess a
controlled substance, but could not reach verdicts on two counts of
first degree murder and one count of aggravated robbery. Morrison
subsequently pleaded guilty to aggravated robbery and one count of
second degree murder in exchange for dismissal of the first degree
murder charges. The district court sentenced him to the custody of
the Department of Corrections (DOC) for an aggregate term of
fifty-two years. Morrison appealed his sentence, and a division of
this court affirmed. See People v. Morrison, (Colo. App. No.
11CA0110, June 28, 2012) (not published pursuant to C.A.R. 35(f)).
¶3 In 2015, Morrison filed a pro se Crim. P. 35(c) motion (the
2015 motion) claiming, as relevant here, that one of his trial
attorneys had provided ineffective assistance by representing that
he had negotiated a sentence of no more than thirty years in DOC
custody. The postconviction court found that this claim had
1 potential merit and, at Morrison’s request, appointed postconviction
counsel — Lisa Polansky. About six months after entering her
appearance, Polansky filed a status report indicating that (1) in her
opinion, based on investigation and research, “there was not an
unfulfilled sentencing agreement or other enforceable promise of a
sentence of not more than thirty years”; and (2) Morrison does not
“wish to pursue a motion to set aside his plea or request a new trial
on this particular ground.” The postconviction court then
dismissed the 2015 motion as “moot.”
¶4 Morrison subsequently sought a ruling on the 2015 motion
and filed additional postconviction motions as described in People v.
Morrison, slip op. at ¶¶ 9-12 (Colo. App. No. 19CA0554, Dec. 17,
2020) (not published pursuant to C.A.R. 35(e)) (Morrison II). As
relevant here, Morrison filed a Crim. P. 35(c) motion in 2019 (the
2019 motion) claiming that Polansky had provided ineffective
assistance as postconviction counsel by effectively withdrawing the
2015 motion without his consent. The postconviction court denied
the 2019 motion in a written order, without appointing counsel. In
Morrison II, a division of this court reversed the order to the extent it
denied the claim of ineffective assistance of postconviction counsel
2 and remanded for further proceedings to determine whether
Morrison had (1) alleged facts establishing justifiable excuse or
excusable neglect for filing the 2019 motion more than three years
after his conviction became final and (2) consented to the
withdrawal of his 2015 sentencing claim. Id. at ¶ 36 & n.2.
¶5 The postconviction court held an evidentiary hearing where
the parties stipulated that (1) the prosecution did not offer Morrison
a thirty-year sentencing cap; (2) Morrison told the sentencing judge
that he had not received any promises; and (3) the plea paperwork
did not include a thirty-year cap. The court heard testimony from
Morrison, Polansky, Morrison’s two trial attorneys, and a district
attorney who prosecuted the case. It later issued an order finding
that Morrison had demonstrated justifiable excuse and excusable
neglect for filing the 2019 motion late but denying postconviction
relief because he had failed to establish a factual basis for his
ineffective assistance of postconviction counsel claim. Specifically,
the court found that “Morrison had notice of, understood, and gave
consent to [Polansky’s withdrawal of the 2015 motion] due to the
motion lacking merit.”
3 II. Discussion
¶6 Morrison contends that the record does not support the
postconviction court’s order. We disagree.
A. Standard of Review and Applicable Law
¶7 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.
¶8 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 resolution of factual
disputes unless “they are so clearly erroneous as to find no support
in the record.” People v. Beauvais, 2017 CO 34, ¶ 22; see People v.
4 Giem, 2015 COA 176, ¶ 12. But we review de novo the court’s
ultimate legal conclusions. Dunlap, 173 P.3d at 1063.
¶9 To establish ineffective assistance of counsel, a defendant
must satisfy the two-prong test set forth in Strickland v.
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. Second, the
defendant must show 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. Id. at 694.
B. Application
¶ 10 The postconviction court found that Polansky had credibly
testified to the following:
• She reviewed the record and the plea colloquy, hired an
investigator, and interviewed both of Morrison’s trial
attorneys.
• She found no support for Morrison’s claim that he had
been promised a thirty-year sentence.
5 • She sent Morrison a letter explaining why his claim
lacked merit and advising him not to proceed.
• She later spoke to Morrison about the claim on the
phone, for approximately fifteen minutes. Morrison
understood her advice and was disappointed, but he
consented to withdraw the sentencing claim.
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22CA1176 Peo v Morrison 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1176 Jefferson County District Court No. 09CR2494 Honorable Laura A. Tighe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Adrian Devon Morrison,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Adrian Devon Morrison appeals the postconviction court’s
order denying his Crim. P. 35(c) claim of ineffective assistance of
postconviction counsel. We affirm.
I. Background
¶2 A jury found Morrison guilty of solicitation for prostitution,
theft, use of a controlled substance, and conspiracy to possess a
controlled substance, but could not reach verdicts on two counts of
first degree murder and one count of aggravated robbery. Morrison
subsequently pleaded guilty to aggravated robbery and one count of
second degree murder in exchange for dismissal of the first degree
murder charges. The district court sentenced him to the custody of
the Department of Corrections (DOC) for an aggregate term of
fifty-two years. Morrison appealed his sentence, and a division of
this court affirmed. See People v. Morrison, (Colo. App. No.
11CA0110, June 28, 2012) (not published pursuant to C.A.R. 35(f)).
¶3 In 2015, Morrison filed a pro se Crim. P. 35(c) motion (the
2015 motion) claiming, as relevant here, that one of his trial
attorneys had provided ineffective assistance by representing that
he had negotiated a sentence of no more than thirty years in DOC
custody. The postconviction court found that this claim had
1 potential merit and, at Morrison’s request, appointed postconviction
counsel — Lisa Polansky. About six months after entering her
appearance, Polansky filed a status report indicating that (1) in her
opinion, based on investigation and research, “there was not an
unfulfilled sentencing agreement or other enforceable promise of a
sentence of not more than thirty years”; and (2) Morrison does not
“wish to pursue a motion to set aside his plea or request a new trial
on this particular ground.” The postconviction court then
dismissed the 2015 motion as “moot.”
¶4 Morrison subsequently sought a ruling on the 2015 motion
and filed additional postconviction motions as described in People v.
Morrison, slip op. at ¶¶ 9-12 (Colo. App. No. 19CA0554, Dec. 17,
2020) (not published pursuant to C.A.R. 35(e)) (Morrison II). As
relevant here, Morrison filed a Crim. P. 35(c) motion in 2019 (the
2019 motion) claiming that Polansky had provided ineffective
assistance as postconviction counsel by effectively withdrawing the
2015 motion without his consent. The postconviction court denied
the 2019 motion in a written order, without appointing counsel. In
Morrison II, a division of this court reversed the order to the extent it
denied the claim of ineffective assistance of postconviction counsel
2 and remanded for further proceedings to determine whether
Morrison had (1) alleged facts establishing justifiable excuse or
excusable neglect for filing the 2019 motion more than three years
after his conviction became final and (2) consented to the
withdrawal of his 2015 sentencing claim. Id. at ¶ 36 & n.2.
¶5 The postconviction court held an evidentiary hearing where
the parties stipulated that (1) the prosecution did not offer Morrison
a thirty-year sentencing cap; (2) Morrison told the sentencing judge
that he had not received any promises; and (3) the plea paperwork
did not include a thirty-year cap. The court heard testimony from
Morrison, Polansky, Morrison’s two trial attorneys, and a district
attorney who prosecuted the case. It later issued an order finding
that Morrison had demonstrated justifiable excuse and excusable
neglect for filing the 2019 motion late but denying postconviction
relief because he had failed to establish a factual basis for his
ineffective assistance of postconviction counsel claim. Specifically,
the court found that “Morrison had notice of, understood, and gave
consent to [Polansky’s withdrawal of the 2015 motion] due to the
motion lacking merit.”
3 II. Discussion
¶6 Morrison contends that the record does not support the
postconviction court’s order. We disagree.
A. Standard of Review and Applicable Law
¶7 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.
¶8 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 resolution of factual
disputes unless “they are so clearly erroneous as to find no support
in the record.” People v. Beauvais, 2017 CO 34, ¶ 22; see People v.
4 Giem, 2015 COA 176, ¶ 12. But we review de novo the court’s
ultimate legal conclusions. Dunlap, 173 P.3d at 1063.
¶9 To establish ineffective assistance of counsel, a defendant
must satisfy the two-prong test set forth in Strickland v.
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. Second, the
defendant must show 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. Id. at 694.
B. Application
¶ 10 The postconviction court found that Polansky had credibly
testified to the following:
• She reviewed the record and the plea colloquy, hired an
investigator, and interviewed both of Morrison’s trial
attorneys.
• She found no support for Morrison’s claim that he had
been promised a thirty-year sentence.
5 • She sent Morrison a letter explaining why his claim
lacked merit and advising him not to proceed.
• She later spoke to Morrison about the claim on the
phone, for approximately fifteen minutes. Morrison
understood her advice and was disappointed, but he
consented to withdraw the sentencing claim.
• Polansky filed the status report effectively withdrawing
Morrison’s 2015 motion after receiving his consent.
¶ 11 We defer to the postconviction court’s finding that this
testimony was credible. See Dunlap, 173 P.3d at 1061-62. And we
accept its findings that Morrison understood the rationale for
withdrawing his sentencing claim and consented to withdraw the
claim because these findings have record support. See Beauvais,
¶ 22. Both Polansky’s testimony (as described above by the court)
and her letter to Morrison (an exhibit admitted at the hearing)
support the court’s findings. We note that in the letter, Polansky
(1) “strongly urge[d]” Morrison not to proceed because his claim was
highly unlikely to succeed and because even if it did succeed, he
would be risking life in prison without the possibility of parole; and
6 (2) communicated that she did not “see any other grounds” for relief
under Crim. P. 35(c).
¶ 12 We are not persuaded by Morrison’s argument that the record
does not adequately demonstrate his informed consent because he
testified to the contrary. First, the postconviction court found
Morrison’s testimony to be not credible, and we defer to that
finding. See Dunlap, 173 P.3d at 1061-62. And second, it is for the
postconviction court — not us — to resolve factual disputes. See
Giem, ¶ 12.
¶ 13 We are also not persuaded by Morrison’s apparent assertion
that Dooly v. People, 2013 CO 34, places a burden on the
prosecution to clearly show that Morrison’s decision was based on
an awareness and actual understanding of the risks of withdrawing
the postconviction motion, any available alternatives, and all other
facts essential to a broad understanding of the whole matter. See
id. at ¶ 10 (holding that “a district court is not authorized to grant
an attorney’s motion to dismiss his client’s [entire] application for
postconviction relief without his client’s informed consent”)
(emphasis added); Morrison II, ¶ 30. But see People v. Smith, 2024
CO 3, ¶ 30 (holding that postconviction counsel need not obtain a
7 defendant’s approval to abandon some postconviction claims).
Because the record supports the postconviction court’s finding that
Morrison consented, we need not decide whether the circumstances
of this case are more akin to those in Dooly or in Smith.
¶ 14 For these reasons, we conclude that Morrison failed to
establish that Polansky’s performance was deficient under
Strickland.
III. Disposition
¶ 15 The order is affirmed.
JUDGE J. JONES and JUDGE YUN concur.