24CA0295 Peo v Myers 10-09-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0295 Jefferson County District Court No. 16CR1251 Honorable Ryan P. Loewer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Zachary Vincent Myers,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE BROWN Fox and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 9, 2025
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Zachary Vincent Myers, Pro Se ¶1 Defendant, Zachary Vincent Myers, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion. We affirm.
I. Background
¶2 In 2016, Myers was charged with numerous offenses related to
his sexual assault of a fourteen-year-old victim and his repeated
contact with her over social media and text. A jury found Myers
guilty of sexual assault (overcoming the victim’s will), sexual assault
on a child, enticement of a child, stalking (credible threat), stalking
(emotional distress), sexual exploitation of a child, internet sexual
exploitation of a child, third degree assault, and false
imprisonment. The district court sentenced him to a controlling
indeterminate term of eighteen years to life in prison.
¶3 Myers directly appealed his conviction, and a division of this
court affirmed. People v. Myers, (Colo. App. No. 18CA0484, June
24, 2021) (not published pursuant to C.A.R. 35(e)) (Myers I). As
relevant here, the division rejected Myers’s contentions that the
district court erred by denying (1) his motion to suppress
statements he made to the police during a custodial interrogation
and (2) his motion for substitute counsel. Id. at ¶¶ 13, 25, 81. The
mandate was issued on December 7, 2021.
1 ¶4 In January 2023, Myers timely filed a Crim. P. 35(c) motion for
postconviction relief. He asserted claims of (1) “police misconduct”;
(2) “judicial misconduct”; (3) ineffective assistance of trial counsel;
and (4) cumulative error stemming from ineffective assistance of
trial counsel. He also requested a proportionality review of his
sentence, asserting that he was “sentenced under misinformation.”
And he asked the court to appoint postconviction counsel. In a
detailed order, the postconviction court denied Myers’s motion
without conducting a hearing.
II. Discussion
¶5 Myers contends that the postconviction court erred by denying
his Crim. P. 35(c) motion without a hearing.1 We disagree.
1 We broadly construe pleadings filed by unrepresented litigants “to
ensure that they are not denied review of important issues because of their inability to articulate their argument like a lawyer.” Jones v. Williams, 2019 CO 61, ¶ 5. But we will not rewrite an unrepresented litigant’s pleadings or act as their advocate. People v. Cali, 2020 CO 20, ¶ 34. And we will not consider issues that were not raised in a motion for postconviction relief. Id.; see DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not raised before the district court in a motion for postconviction relief will not be considered on appeal of the denial of that motion.”).
2 A. Standard of Review
¶6 We review de novo the denial of a Crim. P. 35(c) motion
without a hearing. People v. Cali, 2020 CO 20, ¶ 14. A defendant
need not provide evidentiary support for the allegations in such a
motion but must assert facts that, if true, would provide a basis for
relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A
Crim. P. 35(c) motion may be denied without an evidentiary hearing
where the motion, files, and record clearly establish that the
defendant’s allegations are without merit and do not warrant relief.
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). A court also may
summarily deny a Crim. P. 35(c) motion if the defendant’s
allegations are conclusory, vague, or lacking in detail. People v.
Chipman, 2015 COA 142, ¶ 25.
B. “Police Misconduct” and “Judicial Misconduct” Claims
¶7 In his Crim. P. 35(c) motion, Myers argued that the police
committed misconduct when they (1) seized his cell phone in
violation of his Fourth Amendment rights and (2) interrogated him
without a valid waiver of his Miranda rights. He also argued that
the district court engaged in misconduct by (1) not suppressing the
evidence recovered from the unconstitutional search of his cell
3 phone; (2) not suppressing the statements he made during the
interrogation; and (3) denying the appointment of substitute
counsel.2
1. Cell Phone Seizure Claim
¶8 The postconviction court denied Myers’s cell phone seizure
claim (framed as “police misconduct” and as “judicial misconduct”)
as successive because it had been raised and resolved in the direct
appeal of a separate but related case, Weld County Case No.
16CR511. See People v. Myers, (Colo. App. No. 18CA1521, Aug. 4,
2022) (not published pursuant to C.A.R. 35(e)) (Myers II). In that
appeal, the division rejected Myers’s claim that the same seizure of
his cell phone violated his Fourth Amendment rights. See id. at
¶¶ 29-39. Evidence leading to Myers’s arrest in the underlying case
was discovered during a search of the seized cell phone.
2 Myers also alleged that the district court engaged in misconduct
by responding to a juror question during deliberations regarding his knowledge of the victim’s age and by admitting certain testimony from the victim “that she knew about the defendant and the story from the news.” Because Myers does not raise these issues on appeal, we deem them abandoned. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.
4 ¶9 On appeal, Myers asserts that the postconviction court
violated Crim. P. 35(c)(3)(IV) when it relied on the Weld County
appeal to deny his cell phone seizure claim as successive.3 Under
Crim. P. 35(c)(3)(IV), “[i]f the motion and the files and record of the
case show to the satisfaction of the court that the defendant is not
entitled to relief, the court shall enter written findings of fact and
conclusions of law in denying the motion.” Myers argues that the
phrase “the motion and the files and record of the case” limits the
materials a court can review to the motion, files, and record in the
underlying case.
¶ 10 But Crim. P. 35(c)(3)(VI) states that a court must deny any
claim as successive “that was raised and resolved in a prior
appeal . . . on behalf of the same defendant.” Whether Myers’s
Fourth Amendment rights were violated by the police’s seizure of
3 He also argues that the postconviction court violated Crim. P.
35(c)(3)(IV) because it cited an appeal involving another defendant with the same last name: case number 16CA1153. See People v. Myers, (Colo. App. No. 16CA1153, Mar. 29, 2018) (not published pursuant to C.A.R. 35(e)). Although the postconviction court cited 16CA1153, it undoubtedly referred to the claims Myers raised in Myers I and in the Weld County appeal. The postconviction court’s citation to 16CA1153 appears to be a mistake; the court did not substantively rely on 16CA1153 in denying Myers’s motion.
5 his cell phone was an issue that was raised and resolved in the
Weld County appeal, “a prior appeal . . . on behalf of the same
defendant.” Thus, we perceive no error in the postconviction court’s
denial of this “police misconduct” claim as successive because it
was raised and resolved in the Weld County appeal. And because
Myers’s argument that the district court erred by not suppressing
the evidence from the search of the cell phone presumably was
based on the alleged Fourth Amendment violation (Myers
articulated no other basis for this claim in his Crim. P. 35(c)
motion), we likewise perceive no error in the postconviction court’s
denial of this “judicial misconduct” claim on the same basis.
¶ 11 But even if the postconviction court erred by relying on the
Weld County appeal to conclude that the cell phone seizure claim
was successive, any such error was harmless. Whether framed as
“police misconduct” or “judicial misconduct,” the claim was also
successive because it could have been raised in Myers I. See Crim.
P. 35(c)(3)(VII) (“The court shall deny any claim that could have
been presented in an appeal previously brought . . . .”). We affirm
the court’s order on this alternative basis as well. See People v.
Manyik, 2016 COA 42, ¶ 69 (“We may affirm the court’s ruling on
6 any ground supported by the record, even if that ground was not
articulated or considered by the court.”).
2. Miranda Waiver Claim
¶ 12 The postconviction court denied Myers’s Miranda waiver claim
(framed as “police misconduct” and “judicial misconduct”) as
successive because it was raised and resolved in Myers I. Indeed, in
Myers I, the division rejected Myers’s claim that the district court
erred by not suppressing his statements to the police during the
custodial interrogation because his Miranda waiver was not
knowing, voluntary, and intelligent. Myers I, ¶¶ 25-48. As a result,
to the extent Myers contends that the postconviction court erred by
denying this claim on this basis, we disagree. See Crim. P.
35(c)(3)(VI).
3. Substitute Counsel Claim
¶ 13 The postconviction court rejected Myers’s substitute counsel
(framed as “judicial misconduct”) claim as successive because it
was raised and resolved in Myers I. Indeed, the Myers I division
denied Myers’s claim that the district court erred by denying his
motion for substitute counsel after conducting a conflict hearing
before an independent judge. Myers I, ¶¶ 81-97. Thus, to the
7 extent Myers contends that the postconviction court erred by
C. Ineffective Assistance of Counsel Claims
¶ 14 Myers contends that the postconviction court erred by
summarily denying his claims of ineffective assistance of counsel.
First, Myers argues that the postconviction court erred by denying
his cell phone seizure, Miranda waiver, and substitute counsel
claims as successive because they were in fact ineffective assistance
of counsel claims, which were being raised for the first time in his
Crim. P. 35(c) motion. Second, Myers argues that the
postconviction court erred by denying his ineffective assistance
claims (and the associated cumulative error claim) on the merits.
We disagree.
1. Applicable Law on Ineffective Assistance of Counsel
¶ 15 A criminal defendant is constitutionally entitled to effective
assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.
art. II, § 16; see Ardolino, 69 P.3d at 76. To succeed on a claim of
ineffective assistance of counsel, a defendant must show that
(1) counsel’s performance was deficient, in that it fell below the
8 minimum standard guaranteed by the Sixth Amendment; and
(2) the defendant was prejudiced, in that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054,
1063 (Colo. 2007). “Only where both the performance prong and
the prejudice prong have been proven will a defendant be entitled to
postconviction relief because of the ineffective assistance of
counsel.” Dunlap, 173 P.3d at 1063.
2. Reformulated Claims
¶ 16 At the end of the “police misconduct” section of his Crim. P.
35(c) motion — which included the cell phone seizure and Miranda
waiver claims — Myers asserted that “[r]ecords were available at
[the] time of trial, but counsel failed to investigate[,] and this
violated defendant’s Sixth Amendment right to effective assistance
of counsel.” He also alleged that “[d]ue to incompetency, specifically
a [traumatic brain injury (TBI)] and the psych meds defendant was
on[,] [the detective] took advantage of defendant’s state of mind,”
which violated Miranda. He wrote that “[t]rial counsel’s failure to
investigate this fact prejudiced defendant throughout pre-trial and
9 trial proceedings and ultimately violated his rights guaranteed by
the United States Constitution.” And at the end of the “judicial
misconduct” section of his motion — which included the cell phone
seizure, Miranda waiver, and substitute counsel claims — Myers
asserted that “[d]efense counsel demonstrated trial ineffectiveness
by failing to object and did not know the law.”
¶ 17 In the “ineffective counsel” section of his Crim. P. 35(c) motion,
Myers also alleged that
• he told trial counsel he was diagnosed with a TBI, had
mental health concerns, and had physical injuries, and
trial counsel “did not investigate this claim”;
• trial counsel “neglected their duties” when Myers told
them he was “confused and did not understand what was
going on” because of his TBI; and
• trial counsel “rarely visited” him, did not answer any of
his questions, and did not inform him what they were
planning for his defense.
¶ 18 Presumably based on these statements, Myers contends that
the postconviction court erred by not treating his cell phone seizure,
Miranda waiver, and substitute counsel claims as ineffective
10 assistance of counsel claims. Even if the court should have
recognized these claims as ineffective assistance claims, we
conclude that reversal is not warranted. See Manyik, ¶ 69. We
reach this conclusion for two reasons.
¶ 19 First, these claims of ineffective assistance of counsel are
conclusory, vague, and lack detail; the postconviction court could
have denied them on that basis. See Chipman, ¶ 25. In his Crim.
P. 35(c) motion, Myers did not explain what “records” counsel failed
to investigate that would have informed his cell phone seizure or
Miranda waiver claims. He did not explain how the detective
interrogating him “took advantage” of him in light of his TBI and
medications or what information counsel’s investigation into his
mental and physical impairments would have yielded. He did not
explain what objections trial counsel should have made or what law
trial counsel should have argued with respect to the cell phone
seizure, Miranda waiver, or substitute counsel claims. And he did
not explain how any of trial counsel’s purported failures would have
altered the outcome of the proceeding. See People v. Osorio, 170
P.3d 796, 800 (Colo. App. 2007) (defendant must provide enough
11 detail “to explain why these actions were deficient [and] to place
them in context”).
¶ 20 On appeal, Myers asserts that the district court erroneously
applied the inevitable discovery exception to the warrant
requirement and faults trial counsel for not arguing the proper
standards. He also provides details about what he claims was
coercive conduct by the detective conducting his interrogation and
argues that trial counsel was “grossly ineffective” for failing to
present those details to the district court. And he argues that trial
counsel “should have owned up to the fact they were not adequately
keeping [Myers] informed and they were not communicating with
[Myers], even at a minimally acceptable level,” citing the Colorado
Rules of Professional Conduct. But because Myers did not make
these arguments in his postconviction motion, we will not consider
them now. See Cali, ¶ 34.
¶ 21 Second, because these claims are “merely a reformulation” of
Myers’s direct appeal claims, they are successive under Crim. P.
35(c)(3)(VI). People v. Versteeg, 165 P.3d 760, 768 (Colo. App.
2006), overruled on other grounds by People v. Crabtree, 2024 CO
40M; see People v. Munkus, 60 P.3d 767, 770 (Colo. App. 2002)
12 (concluding that the defendant’s “reformulated claims” were
successive). Even “an argument raised under Rule 35 which does
not precisely duplicate an issue raised on appeal will be precluded if
its review ‘would be nothing more than a second appeal addressing
the same issues on some recently contrived constitutional theory.’”
People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (quoting People
v. Bastardo, 646 P.2d 382, 383 (Colo. 1982)); see also Versteeg, 165
P.3d at 768 (“A defendant may not use Crim. P. 35 to relitigate an
issue that was resolved on direct appeal.”).
¶ 22 To the extent Myers argues that the division’s resolution of the
cell phone seizure claim in the Weld County appeal cannot be
considered, we have already rejected that argument. In that case,
the division explained that the district court denied Myers’s motion
to suppress evidence stemming from the seizure of his cell phone on
several grounds, including under the inevitable discovery doctrine
and the exigent circumstances exception. Myers II, ¶ 36. The
division concluded that the police lawfully seized Myers’s cell phone
pursuant to the exigent circumstances exception to the warrant
requirement (not under the inevitable discovery doctrine) and
affirmed the district court’s ruling on that basis. Id. at ¶¶ 37, 39.
13 In his postconviction motion, Myers failed to allege anything trial
counsel did or did not do that would have affected the division’s
resolution of this claim. Without such allegations, Myers’s
postconviction claim simply rehashed his direct appeal claim, and
was successive.
¶ 23 To the extent Myers claims that trial counsel should have
argued that the detective conducting his interrogation “took
advantage” of him because of his TBI, the division in Myers I
considered and rejected this claim. The division noted that Myers
had “mentioned to the detective that months earlier, a light fixture
had fallen on his head, causing a mild concussion, and that he was
seeing a ‘brain coach.’” Myers I, ¶ 18. It considered Myers’s claim
that his head injury prevented him from knowingly or intelligently
waiving his Miranda rights. Id. at ¶ 40. And it considered his claim
that the detective engaged in coercive conduct, rendering his
Miranda waiver involuntary. Id. at ¶¶ 25, 28, 36-37. After
reviewing the interrogation video de novo, the division concluded
that Myers’s Miranda waiver was knowing, voluntary, and
intelligent. Id. at ¶ 32.
14 ¶ 24 In his postconviction motion, Myers did not explain how trial
counsel’s alleged failure to investigate and present additional
evidence and argument relating to his TBI, medications, or mental
state would have altered the conclusion reached by the district
court or the Myers I division. Because these issues were addressed
on direct appeal, Myers’s postconviction claim merely sought a
second review. See Rodriguez, 914 P.2d at 249.
¶ 25 To the extent Myers argues that trial counsel did not
adequately communicate with him, this claim simply rehashes his
direct appeal claim, which the Myers I division rejected. See Myers
I, ¶¶ 81-97. As the division explained, Myers raised his concerns
about representation with the district court, including that counsel
was not spending enough time on his case. Id. at ¶ 89. In affirming
the district court’s denial of the motion for substitute counsel, the
division explained, among other things, that “Myers never alleged
there had been a complete breakdown in communication between
him and his public defenders.” Id. at ¶ 95. Myers’s postconviction
claim seeks to relitigate that issue. See Versteeg, 165 P.3d at 768.
15 3. Failure to Investigate
¶ 26 Myers raised several other ineffective assistance of counsel
claims in his Crim. P. 35(c) motion. On appeal, in addition to the
claims we have already addressed, Myers focuses on his claim that
trial counsel was ineffective for failing to investigate the park where
the incident occurred, how Myers found the victim on social media,
and how Myers knew the precise whereabouts of the victim on the
day of the incident.4
¶ 27 But Myers did not allege prejudice resulting from trial
counsel’s allegedly deficient investigation. He did not explain what
counsel would have found had they investigated these issues or
how that unspecified information would have altered the outcome of
the case. And we decline to consider Myers’s attempts to expand on
this claim on appeal by providing additional detail and alleging
prejudice in his opening brief. See Cali, ¶ 34; see also Rodriguez,
4 Myers also alleged that trial counsel was ineffective for (1) advising
him to waive his speedy trial rights; (2) advising him not to testify on his own behalf; (3) failing to inform him of his option to have a bench trial; and (4) failing to object to the district court’s response to a jury question during deliberations. Because Myers does not address these claims on appeal, we deem them abandoned. See Hunsaker, ¶ 20.
16 914 P.2d at 251 (rejecting the defendant’s “attempts to use his brief
on . . . appeal to fortify a number of issues inadequately raised or
supported by his [postconviction] motion”). Because Myers failed to
demonstrate that, but for counsel’s allegedly deficient performance,
the outcome of the proceedings would have been different, the
postconviction court properly denied this ineffective assistance of
counsel claim. See People v. Smith, 2017 COA 12, ¶ 26 (affirming
the summary denial of an ineffective assistance claim because,
among other reasons, the defendant “fail[ed] to adequately allege
the required prejudice”); People v. Romero, 2015 COA 7, ¶ 39
(affirming the summary denial of an ineffective assistance claim
because the defendant “failed to allege facts demonstrating
prejudice”).
4. Cumulative Error
¶ 28 In its order denying Myers’s motion, the postconviction court
rejected his claim that the cumulative effect of trial counsel’s
allegedly deficient performance required reversal. Even assuming
that the cumulative error doctrine applies to claims of ineffective
assistance of counsel, a conclusion we do not reach, we have
neither assumed nor concluded that any error occurred. Thus, we
17 affirm the court’s rejection of this claim. See People v. Shanks,
2019 COA 160, ¶ 76 (for the cumulative error doctrine to apply,
numerous errors must have been committed, not merely alleged).
D. Unconstitutional Sentence
¶ 29 Finally, in his Crim. P. 35(c) motion, Myers argued that he
“was sentenced under misinformation” in violation of United States
v. Tucker, 404 U.S. 443 (1972).5 The postconviction court denied
this claim, concluding that there was nothing in “the record utilized
for sentencing in this case or supplied by [Myers]” that was
“materially untrue.”
¶ 30 “Due process precludes sentencing a defendant based on
‘misinformation of constitutional magnitude.’” People v. Tuffo, 209
P.3d 1226, 1231 (Colo. App. 2009) (quoting Tucker, 404 U.S. at
447). In other words, “due process requires that sentencing
determinations be based on reliable evidence, not speculation or
unfounded allegations.” Id. (quoting United States v. England, 555
F.3d 616, 622 (7th Cir. 2009)).
5 Myers also requested a proportionality review, which the
postconviction court conducted. Because he does not reassert a challenge to the proportionality of his sentence on appeal, he has abandoned it. See Hunsaker, ¶ 20.
18 ¶ 31 In his postconviction motion, Myers did not specify what
“misinformation” the district court relied on for sentencing, let alone
identify “misinformation of constitutional magnitude.” Id. Because
this allegation was vague, conclusory, and lacking detail, see
Chipman, ¶ 25, we affirm the postconviction court’s denial of this
claim on a different ground, see Manyik, ¶ 69. In so doing, we
again reject Myers’s attempt to expand upon this claim in his
opening brief by arguing that the district court should have been
presented with evidence of his TBI and medications. See Rodriguez,
914 P.2d at 251. And to the extent that Myers tries to raise a new
ineffective assistance of counsel claim related to sentencing, we will
not consider it. See Cali, ¶ 34.
E. Additional and Abandoned Claims
¶ 32 To the extent Myers raises any additional issues on appeal
that he did not raise in his Crim. P. 35(c) motion, we decline to
address them. See id. And to the extent Myers failed to raise on
appeal any issues he raised in his Crim. P. 35(c) motion, he has
abandoned those claims. See People v. Hunsaker, 2020 COA 48,
¶ 10, aff’d, 2021 CO 83.
19 III. Disposition
¶ 33 The order is affirmed.
JUDGE FOX and JUDGE MEIRINK concur.