23CA1686 Peo v Rabinkov 02-12-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1686 City and County of Denver District Court No. 12CR922 Honorable James F. Hartmann, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leonid A. Rabinkov,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026
Philip J. Weiser, Attorney General, Yaried A. Hailu, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant- Appellant ¶1 Defendant, Leonid A. Rabinkov, appeals the postconviction
court’s order denying his claim of ineffective assistance of counsel.
We affirm.
I. Background
¶2 In 2012, police officers found George DeCurnou in front of his
apartment building, bleeding from his head and neck. DeCurnou
later died from his injuries.
¶3 During their investigation, police collected handwritten notes,
cell phone records, and fingerprints from DeCurnou’s apartment
suggesting that Rabinkov had been present around the time
DeCurnou was stabbed.1 They also found a bloody hammer and
spoke with a witness who called 911 after hearing DeCurnou yell at
someone to put down a knife. The investigation also yielded video
footage placing Rabinkov at the apartment around the time of the
incident.
¶4 Rabinkov was initially charged with attempted first degree
murder, first degree assault, and two sentence enhancers. After
1 Additional DNA evidence was gathered during the investigation,
but the results were either inconclusive or negative for Rabinkov’s DNA.
1 DeCurnou died in the hospital, however, the People amended the
complaint, substituting attempted first degree murder with first
degree murder. Later, they dropped the other three charges.
¶5 During pretrial proceedings, Rabinkov’s defense team2 raised
concerns about Rabinkov’s competency to stand trial due to his
deafness and cognitive impairments. Counsel requested that the
competency exam be expanded to include “serious language,
cognitive, and or development deficiencies,” and that Rabinkov
complete specific cognitive tests to measure his verbal
understanding and working memory. Counsel also asked that
Rabinkov be evaluated by someone fluent in American Sign
Language (ASL) and familiar with deaf culture to better account for
the cultural, social, parenting, and educational issues Rabinkov
encountered in life.
2 Rabinkov was first represented by Deputy State Public Defenders
Rebekka Higgs and Kelly Meilstrup. Deputy State Public Defender Demetria Trujillo had joined the team by the time Rabinkov’s competency evaluation was released. Meilstrup and Higgs withdrew as counsel several months after Rabinkov was declared competent to proceed. Trujillo was then joined by Deputy State Public Defender Shanelle Kindel, and the pair represented Rabinkov for the remainder of the case.
2 ¶6 The court ordered a competency evaluation to be completed by
the Colorado Department of Human Services and encouraged the
Department to have it “conducted by individuals who are familiar
with or have experience with issues affecting competency of deaf
individuals.”
¶7 Thomas Gray, Ph.D., a forensic psychologist who served as the
clinical coordinator of the court services department at the Colorado
Mental Health Institute at Pueblo, evaluated Rabinkov for
competency. He conducted the evaluation with the assistance of
ASL interpreters. There is no mention in his report of the requested
cognitive tests. Gray determined that Rabinkov did not have “a
mental or developmental disability that prevented him from
consulting with his lawyer within a reasonable degree of rational
understanding to assist in his defense or from having a rational and
factual understanding of the criminal proceedings.” He concluded
that Rabinkov was competent to stand trial.
¶8 Neither party requested a competency hearing or a second
evaluation. Rabinkov’s lawyers did not object to the court’s finding
that Rabinkov was competent to proceed.
3 ¶9 Following plea negotiations that we discuss further below,
Rabinkov entered into a plea agreement and pleaded guilty to
second degree murder. The parties stipulated that he would be
sentenced to thirty-two years in the custody of the Department of
Corrections, plus five years of mandatory parole. The district court
accepted the plea agreement and sentenced Rabinkov accordingly.
¶ 10 In 2017, Rabinkov filed a motion alleging ineffective assistance
of counsel and requesting the appointment of postconviction
counsel. The court ordered that an attorney from the Office of
Alternate Defense Counsel (OADC) represent him. The order was
served digitally to Rabinkov’s first two defense attorneys — Rebekka
Higgs and Kelly Meilstrup — the Denver District Attorney’s Office,
and the Denver Public Defender’s Office. There is no indication that
it was served to the OADC. Records show that Rabinkov’s first two
attorneys never opened the document, but an unidentified
individual from the Denver Public Defender’s Office did.
¶ 11 Approximately three years later, Rabinkov contacted another
attorney on his defense team, Demetria Trujillo, about the court’s
order. Trujillo had not been aware of Rabinkov’s motion until she
received his letter, but she promptly emailed the order to the OADC
4 once she learned of it. The OADC then assigned Rabinkov
postconviction counsel, who filed a motion for postconviction relief
on his behalf.
¶ 12 Rabinkov’s motion asserted that his defense attorneys
provided ineffective assistance in three different ways: (1) by
destroying his case file, thus hindering his ability to seek
postconviction relief; (2) by failing to conduct an adequate
investigation of his cognitive deficits by consulting with experts who
could bolster potential defenses focused on competency, insanity, or
impaired mental condition; and (3) by failing to adequately advise
him on his plea deal and the potential consequences of trial. After
an evidentiary hearing, the postconviction court denied all of
Rabinkov’s claims in a detailed written order. Rabinkov now
appeals.
II. Standard of Review
¶ 13 A postconviction court’s ruling on a motion for postconviction
relief filed under Crim. P. 35(c) presents a mixed question of fact
and law. People v. Sharp, 2019 COA 133, ¶ 12. We defer to the
court’s findings of fact if they have record support, but we review
any legal conclusions de novo. Id. The postconviction court
5 determines the weight and credibility to be given to the testimony of
witnesses in a Crim. P. 35(c) hearing. People v. Hardin, 2016 COA
175, ¶ 39. Accordingly, “[w]here the evidence in the record
supports the findings and holding of the postconviction court that
presided over an evidentiary hearing, the judgment will not be
disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27.
III. Applicable Law
¶ 14 To prevail on a claim of ineffective assistance of counsel under
Crim. P. 35(c), a defendant must show that (1) counsel’s
performance was deficient and (2) counsel’s deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88
(1984).
¶ 15 Under the performance prong, a defendant must prove that
counsel’s representation fell below an objective standard of
reasonableness. Dunlap v. People, 173 P.3d 1054, 1062 (Colo.
2007). However, there is a strong presumption that counsel’s
performance was within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689.
¶ 16 Under the prejudice prong, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
6 unprofessional errors, the result of the proceeding would have been
different.” Id. at 694; People v. Garcia, 815 P.2d 937, 943 (Colo.
1991) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “A reasonable
probability means a ‘probability sufficient to undermine confidence
in the outcome.’” Hagos v. People, 2012 CO 63, ¶ 17 (quoting
Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003)).
IV. Case File
¶ 17 Rabinkov first argues that the postconviction court erred by
ruling that he had not suffered any prejudice due to his defense
counsel’s failure to preserve his case file. We disagree.
A. Legal Standards
¶ 18 Colo. RPC 1.16A(c)(3), as relevant here, requires a lawyer in a
criminal matter to retain a client’s file for five years from the date of
sentencing, “if the matter resulted in a conviction for [a] felony and
neither the conviction nor sentence was appealed.” If an attorney
has knowledge of pending or threatened proceedings related to the
matter, the client’s file should not be destroyed. Colo. RPC 1.16A
cmt. 4.
¶ 19 Before destroying a file, a lawyer must give written notice to
the client of their intent to do so. Colo. RPC 1.16A cmt. 5. The date
7 of destruction must be no less than thirty days after the notice is
given. Id. This requirement may be satisfied if the client is given
the lawyer’s written file retention policy during or after
representation of the client. Id. A lawyer may not, however, destroy
files if the attorney knows that there are proceedings pending or
threatened in the matter for which the lawyer created the files. Id.
¶ 20 The Office of the Colorado Public Defender’s internal policies
generally align with these rules, but they include one additional
requirement potentially relevant here: a file should be retained for
the life of the client if it contains results of DNA testing that
significantly impact the case.
B. Additional Facts
¶ 21 The Denver Public Defender’s Office destroyed Rabinkov’s file
in January 2020, six years after he was sentenced. It did so even
though Rabinkov had requested appointment of counsel to pursue a
postconviction motion, and the district court had issued an order
appointing an attorney from the OADC for that purpose. And, the
postconviction court found, there was no evidence that Rabinkov
either received a copy of the Public Defender’s Office’s file retention
8 policies or that the Public Defender’s Office had timely notified him
of its plans to destroy the file.
¶ 22 As we understand the postconviction court’s order, it either
found (or assumed without deciding) that the Public Defender’s
Office’s failure to notify Rabinkov about the pending destruction of
his file amounted to deficient performance. Despite that finding,
the court rejected Rabinkov’s claim because it found that Rabinkov
had failed to show that the destruction of the file prejudiced him.
See People v. Washington, 2014 COA 41, ¶ 20 (“If a court
determines that a defendant has failed to prove either prong of the
Strickland analysis, it may deny an ineffective assistance claim
without addressing the other prong.”).
¶ 23 As support for its conclusion, the court noted that Rabinkov’s
postconviction counsel had in fact received copies of the discovery
and had access to the court file. The only contents of the file
counsel did not receive were “any handwritten notes that were
created by his trial attorneys.” The court observed that, during the
evidentiary hearing, Trujillo testified about the details of her
9 representation.3 Trujillo’s testimony shed light on the reasoning
behind her decision-making, and postconviction counsel queried
her about pertinent information missing from Rabinkov’s file.
Accordingly, the court determined that Rabinkov’s claim of
prejudice was “purely speculative” and did not merit relief.
C. Analysis
¶ 24 Rabinkov contends that the postconviction court erred by
finding that he failed to show prejudice. He argues that trial
counsel’s handwritten notes were critical to his effort to show
ineffective assistance of counsel because they might have revealed,
among other things, (1) any advice that trial counsel provided;
(2) the number of times trial counsel met with Rabinkov; (3) if ASL
interpreters were present during meetings; (4) the reasoning behind
trial counsel’s strategic decisions; and (5) whether trial counsel had
concerns related to Rabinkov’s competency and mental state.
3 Trujillo was the only member of the defense team called as a
witness at the postconviction hearing. In its order denying Rabinkov’s request for postconviction relief, the court noted, “[P]resumably, [postconviction counsel] could have also interviewed other members of his trial defense team.”
10 ¶ 25 Although there were gaps in Trujillo’s recollection, her
testimony at the postconviction hearing both shed light on the
number of times she met with Rabinkov and confirmed the
presence of an ASL interpreter at each meeting. Trujillo also
discussed the plea negotiations, the strength of the prosecution’s
case, and potential defense strategies — including how Rabinkov’s
physical and mental difficulties could factor into Rabinkov’s defense
in a trial.
¶ 26 To the extent Rabinkov asserts that he was prejudiced by the
gaps in Trujillo’s recollection, we agree with the postconviction
court’s observation that postconviction counsel “presumably . . .
could have also interviewed other members of his trial defense
team” to fill in those gaps. More importantly, however, we agree
with the postconviction court’s conclusion that Rabinkov’s claim of
prejudice is speculative. See People v. Finney, 2012 COA 38, ¶ 66
(“We will affirm a trial court’s determination that the defendant was
not prejudiced when the evidence only provides speculative proof of
prejudice.”), aff’d, 2014 CO 38; People v. Chipman, 2015 COA 142,
¶ 63 (A speculative claim of prejudice cannot “form the basis for a
valid claim of ineffective assistance of counsel.”). In short, absent
11 any indication that attorney work product in the file would reveal
material strategic errors or omissions by the defense team not
already addressed by the other evidence in the record, we cannot
conclude that Rabinkov was prejudiced by the file’s destruction.
Accordingly, we discern no error in the postconviction court’s
determination that Rabinkov failed to prove he was prejudiced by
the destruction of his case file.
V. Experts
¶ 27 Rabinkov alleges that he received ineffective assistance of
counsel because his defense team did not consult with an expert
neuropsychologist or psychologist about his physical and cognitive
disabilities. He argues that, due to his attorneys’ failure to conduct
an adequate investigation — and their ensuing failure to inform the
prosecution and court that he likely suffers from congenital rubella
syndrome — they did not fully comprehend or communicate the
impact of his disabilities on (1) his competency to proceed; (2) his
potential defenses; or (3) the course of plea negotiations.
A. Testimony at the Evidentiary Hearing
¶ 28 At the evidentiary hearing, postconviction counsel called three
expert witnesses — a neuropsychologist, a medical expert, and an
12 expert on criminal defense — to discuss the defense team’s failure
to thoroughly investigate Rabinkov’s physical and cognitive
disabilities.
¶ 29 The psychological expert was a licensed clinical psychologist
specializing in neuropsychology with extensive experience
evaluating deaf and hearing-impaired individuals. To prepare for
her testimony, she reviewed medical records related to Rabinkov’s
case, including Gray’s initial competency evaluation, and also met
with Rabinkov by video for a total of nine hours with the assistance
of an ASL interpreter. She did not review the underlying facts of the
case nor interview any members of the defense team.
¶ 30 During their meetings, which took place approximately ten
years after the proceedings that led to Rabinkov’s guilty plea, the
psychologist administered a series of tests examining Rabinkov’s
perceptual reasoning, working memory, and mental processing
speed. Rabinkov’s scores were in the low average range, the inferior
range, and the lowest first percentile, respectively. Based on these
results, the psychologist opined that Rabinkov was incompetent to
proceed at the time he entered his guilty plea. She explained that,
due to Rabinkov’s cognitive deficiencies — which she said were
13 consistent with an individual diagnosed with congenital rubella
syndrome — he was likely unable to understand or retain complex
information, although he would be able to repeat information told to
him.
¶ 31 Rabinkov’s medical expert, a physician’s assistant, reviewed
Rabinkov’s medical history but did not meet with him personally.
Based on his review, he testified that Rabinkov likely suffered from
congenital rubella syndrome, which develops in utero when a
mother contracts rubella during pregnancy. He explained that a
definitive diagnosis was not possible because it requires a blood test
performed during a child’s first year of life, but he said that
Rabinkov — who was born and spent his childhood in Ukraine —
faced a greater risk of the disease due to the lower vaccination rates
among that population.
¶ 32 Describing the severity of Rabinkov’s condition, the medical
expert opined that Rabinkov displayed a “marked” manifestation of
congenital rubella syndrome, which is the highest level on the
spectrum when measuring the degree of symptoms. Rabinkov
suffered from ophthalmologic abnormalities, congenital heart
disease, and a hearing impairment. He also displayed
14 microcephaly — a condition where the skull diameter is more than
two standard deviations below the norm for his age, weight, and
sex — along with developmental delays. The expert said that
impacts from the disease include a diminished ability to engage in a
risk-benefit analysis and difficulties in assessing the potential
repercussions of certain actions. Rabinkov’s symptoms, in the
expert’s opinion, profoundly impacted his day-to-day life and likely
made him unable to competently make medical decisions on his
own behalf.
¶ 33 Rabinkov’s expert on criminal defense testified about the
adequacy of the defense team’s investigation into Rabinkov’s
condition. She reviewed Rabinkov’s court file, which included his
medical records and competency exam, but did not speak with
Rabinkov or any members of the defense team. She opined that
Rabinkov’s attorneys did not meet prevailing professional norms
because they failed to retain professional experts to further explore
his circumstances — including how congenital rubella syndrome
may have impacted his competency, his potential trial defenses, or
arguments in favor of mitigation in plea discussions or sentencing.
The expert explained that reasonably competent defense counsel
15 would have recognized the importance of Rabinkov’s disabilities to
the case, as well as the difficulties that those disabilities created for
attorney-client communications and, as a result, would have
conferred with a neuropsychologist or psychologist to investigate
the matter further.
¶ 34 Trujillo addressed many of these issues during her own
testimony. She said that her personal interactions with Rabinkov
did not give her reason to challenge the competency evaluation.
Trujillo recalled that, during these meetings, which were facilitated
by ASL interpreters, she engaged in back-and-forth conversations
with Rabinkov that, in her view, demonstrated his comprehension.
She stated that when Rabinkov did not understand, he asked for
clarification. She added that her perception of his comprehension
was bolstered by evidence showing Rabinkov was self-sufficient
enough to navigate Denver’s bus system when traveling to
DeCurnou’s apartment.
¶ 35 Trujillo also discussed the plea negotiation process. Given the
strength of the prosecution’s evidence, Trujillo did not believe there
was any available defense that would result in a full acquittal, and
she conveyed that belief during multiple conversations with
16 Rabinkov regarding his potential offers and the risks of going to
trial. She advised him of the inculpatory evidence that would likely
be introduced, opined that the brutality of the crime and the
strength of the evidence increased the risk of a first degree murder
conviction, and explained that even a second degree murder
conviction could result in a forty-eight-year sentence. Rabinkov
asked Trujillo to attempt to negotiate an offer for probation.
However, once he understood that probation was likely off the table,
he requested a deal that would allow him to be released from prison
as soon as possible.
¶ 36 Trujillo wrote a mitigation letter and discussed plea options
with the prosecution. The letter detailed Rabinkov’s difficult
background and the extent of his physical and cognitive
disabilities — although it did not specify that he likely has
congenital rubella syndrome. Nonetheless, Trujillo testified during
the postconviction hearing that Rabinkov’s “symptomology was
undisputed” by the prosecution, and that, in her view, Rabinkov’s
challenges contributed to the prosecution’s acceptance of a thirty-
two-year stipulated sentence for second degree murder.
17 ¶ 37 After the hearing, the postconviction court found that
Rabinkov failed to prove either deficient performance or prejudice.
B. Competency
¶ 38 Rabinkov argues it was objectively unreasonable for the
defense team not to consult with an expert neuropsychologist or
psychologist after Gray’s evaluation found him competent to
proceed. He asserts that defense counsel knew about his
background and his physical and cognitive disabilities, as well as
the fact that “maternal rubella” can cause deafness and lifelong
medical and behavioral problems. He maintains his attorneys were
also aware that nothing in Gray’s competency evaluation addressed
any of the major points his competency motion had raised and
notes that, at the postconviction hearing, the criminal defense
expert opined that the defense team’s lack of action on this issue
was objectively unreasonable.
¶ 39 The postconviction court determined that the defense team’s
performance on the competency issue was neither objectively
unreasonable nor prejudicial to the defense. In reaching this
conclusion, the court gave great weight to Trujillo’s testimony that,
while representing Rabinkov, she “did not observe anything in her
18 communications or interactions” that “led her to believe [Rabinkov]
was incompetent to proceed.” It gave less weight to the testimony of
the criminal defense expert because the expert “did not speak with
[Rabinkov] or the trial defense team” and therefore “did not have a
complete picture of why certain actions were taken and others were
not.”
¶ 40 We are bound by the postconviction court’s weight and
credibility determinations. See Dunlap, 173 P.3d at 1061-62. And,
based on those findings, as well as other evidence in the record, we
agree with the court’s conclusion that the defense team’s approach
to the competency issue was not objectively unreasonable.
(Accordingly, we need not address Strickland’s prejudice prong. See
Washington, 2014 COA 41, ¶ 20.)
¶ 41 That other evidence includes the court’s finding that, based on
its own review of the record, Rabinkov displayed an ability “to
understand and retain important advice provided by his attorneys,”
unprompted, during his conversations with Gray. It also includes
evidence of an evaluation requested by Rabinkov’s defense team
and conducted by a licensed clinical social worker (LCSW) with the
Mental Health Center of Denver before Gray’s competency
19 evaluation was requested. The LCSW, who had experience working
with deaf individuals, determined Rabinkov’s “ASL abilities were
within normal limits” and also reported that his “cognitive abilities
were fine when he completed the mini mental health examination.”
And it includes the postconviction court’s observation that, if
Rabinkov’s competency truly had been an issue, one would expect
his highly experienced defense team to press for a second
evaluation or object to the court’s ultimate competency finding. See
People v. Newmiller, 2014 COA 84, ¶ 22 (relying in part on
postconviction court’s finding that trial counsel were “highly
experienced criminal defense attorneys”).
¶ 42 Because there is substantial record support for the
postconviction court’s finding that the defense team’s approach to
the competency issue was not objectively unreasonable, we leave it
undisturbed.
C. Legal Defenses
¶ 43 Rabinkov next asserts that his defense team should have
consulted with an expert familiar with his disabilities to effectively
advocate on his behalf. He says it was impossible for his attorneys
to make an informed decision about his legal defense without such
20 consultation. We agree with the postconviction court’s conclusion
that Rabinkov did not show that his attorneys’ actions were
objectively unreasonable.
¶ 44 Counsel has a duty to make reasonable investigations into
appropriate trial defenses. Strickland, 466 U.S. at 691. A
reasonable investigation does not mean a perfect investigation.
Harrington v. Richter, 562 U.S. 86, 108 (2011) (stating that counsel
is entitled to allocate limited resources based on their expertise in
effective trial tactics and strategies). Defense counsel need only
conduct an investigation sufficient to reveal potential defenses as
well as weaknesses in the prosecution’s case. People v. Dillard, 680
P.2d 243, 245 (Colo. App. 1984).
¶ 45 Our review of the record and the postconviction court’s
reasoning convinces us that the defense team made a reasonable
investigation into Rabinkov’s physical and cognitive issues, even
though they did not consult with a neuropsychologist or
psychologist. Newmiller, ¶ 45 (“A reasonable investigation means
one that is ‘sufficient to reveal potential defenses and the facts
relevant to guilt.’” (citation omitted)). Hence, we agree with the
postconviction court’s conclusion that “there are many different
21 defense strategies that may be pursued” by counsel and, here,
Rabinkov’s defense strategy was objectively reasonable.
¶ 46 As discussed above and in the postconviction court’s order,
early in the case, defense counsel conferred with an LCSW
experienced in the field about Rabinkov’s physical and cognitive
disabilities. Although the LCSW was not a neuropsychologist or
psychologist, she had experience working “with deaf individuals and
their families through [the Mental Health Center of Denver],”
including “intakes and assessments.” The LCSW concluded that
Rabinkov’s “cognitive abilities were fine” and his “ASL abilities were
within normal limits.” Nonetheless, after meeting with the LCSW
for an evaluation of Rabinkov’s condition, defense counsel
incorporated her recommendations regarding specific testing into
the motion for Rabinkov’s competency evaluation.
¶ 47 Despite the LCSW’s opinion that his “cognitive abilities were
fine,” Gray’s evaluation concluding Rabinkov was competent, and
Trujillo’s own impressions, the defense team continued to
investigate Rabinkov’s physical and cognitive disabilities
throughout the case. The record shows that defense counsel
sought out Rabinkov’s probation records and mental health
22 records, interviewed family members, and sought records about his
hospitalizations in Ukraine to better understand his disabilities.
Much of the information gathered in this investigation appeared in
the mitigation letter that defense counsel sent to the prosecution in
advance of the plea. It was also the basis for Trujillo’s conclusion
that, given the evidence against Rabinkov and the nature of the
crime, a defense based on Rabinkov’s physical and cognitive
disabilities would not lead to a full acquittal, and a plea deal
presented a better overall strategy.
¶ 48 Based on the extent and depth of the defense team’s
investigation into Rabinkov’s condition — along with its effective
use of the information uncovered during that investigation — we
agree with the postconviction court’s ruling that the failure to
consult a neuropsychologist or psychologist when formulating and
pursuing defense strategies was not an objectively unreasonable
decision.
D. Plea Deal
¶ 49 We also reject Rabinkov’s argument that the defense team’s
failure to consult with a neuropsychologist or psychologist about
23 his physical and cognitive disabilities before negotiating his plea
deal amounted to ineffective assistance of counsel.
¶ 50 The thrust of Rabinkov’s argument is that appropriate expert
consultation would have resulted in a specific diagnosis of
congenital rubella syndrome, which could have then been
communicated to the prosecution in the mitigation letter or through
other means, and presumably would have led to a better plea offer.
¶ 51 However, as the postconviction court noted, with the exception
of microcephaly, the mitigation letter’s description of Rabinkov’s
symptoms was nearly identical to the indications of congenital
rubella syndrome that Rabinkov’s medical expert described at the
hearing. The postconviction court included the following
comparison in its order:
24 Mitigation Letter of June 18, Congenital Rubella 2013 Syndrome Manifestations Defendant’s mother contracted Defendant’s mother very chicken pox while pregnant likely contracted rubella with Defendant. while pregnant with Defendant. Defendant has been deaf since Hearing impairment. birth. Defendant suffered from a Congenital heart issues. heart defect at birth, requiring monitoring and treatment of his narrowed aorta. Defendant had retinal Congenital abnormalities degeneration at birth, requiring of the eyes retinal injections. Defendant was developmentally Developmental delays delayed, as identified at a young age by teachers at the school for deaf children. Defendant struggled in school. Defendant would run away for Difficulty understanding weeks at a time as a teenager, how actions may impact and he was found living with results, risk versus “Gypsies” on the streets. benefit analysis, and Defendant was hospitalized what repercussions may multiple times in a children’s result from certain psychiatric ward in Ukraine for actions. bizarre behavior. N/A Microcephaly (reduced skull size)
¶ 52 Like the postconviction court, we see very little substantive
difference between the conditions described in the mitigation letter
and a formal diagnosis of congenital rubella syndrome. And we
25 must defer to the court’s decision to credit Trujillo’s testimony that,
given the facts and evidence, she reasonably determined that
putting a medical diagnosis to Rabinkov’s symptoms “would not
have made a difference in plea negotiations.” Accordingly, we agree
with the postconviction court’s conclusion that the defense team did
not act unreasonably by failing to consult an expert for the purpose
of negotiating a better plea agreement.
VI. Communication
¶ 53 Finally, Rabinkov contends that his defense team provided
ineffective assistance of counsel because they failed to communicate
and advise him effectively on the risks of proceeding to trial versus
accepting a plea deal. He argues they deficiently performed by
failing to explain how his cognitive disabilities could have been used
as defenses at trial. And he asserts that, according to jail records,
he rarely met with his defense counsel while he was in pretrial
incarceration and that ASL interpreters were not present for all of
these meetings. He argues there is a reasonable probability that if
his attorneys had provided adequate advice, he would have rejected
the plea offer and gone to trial. We are not persuaded.
26 ¶ 54 In rejecting this argument, the postconviction court credited
Trujillo’s testimony that she discussed Rabinkov’s “mental and
physical conditions with him” and “explained how this information
could be used at trial,” and while she “didn’t use the words ‘mental
slowness,’” she imparted the principles of a cognitive disabilities
defense. The court also noted that Rabinkov first “request[ed]
probation” when Trujillo explained the risks of trial, and then, once
she explained that probation was likely off the table, he sought a
plea deal that would give him the shortest possible period of
incarceration.
¶ 55 Regarding the number of visits between Rabinkov and
members of the defense team, the postconviction court declined to
credit the jail records that Rabinkov relied on to show that he rarely
met with defense counsel and that ASL interpreters were not always
present when meetings did occur. The court reasoned that there
were “large portions” of the jail records that were blacked out by
“presumably the Denver Sheriff’s Office,” obscuring exact visitation
details. The court also noted that Rabinkov did not present
testimony establishing the records’ completeness or accuracy.
Moreover, the court found there was substantial evidence that the
27 records were inaccurate or incomplete. Trujillo, for example,
appears to have visited Rabinkov eight times even though jail
records list only four. And there was no record of a visit by Higgs
shortly before the competency evaluation, even though Rabinkov
cited her legal advice as a basis for declining to answer certain
questions posed during that process.
¶ 56 As for the likelihood that Rabinkov would have rejected the
plea offer and gone to trial on the first degree murder charge, we
agree with the postconviction court’s conclusion that the chances of
that occurring were slim. See Hill, 474 U.S. at 58-59 (A defendant
who challenges a guilty plea based on ineffective assistance of
counsel must show “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on
going to trial.”). As Trujillo explained, Rabinkov’s defenses were
limited and were hampered by his evolving story about the incident
and the nature of DeCurnou’s injuries. Given the weaknesses in
the defense, accepting a plea offer to a lesser charge was a rational
¶ 57 Rabinkov’s statements during the plea negotiations also show
an inclination to avoid trial. Facing a life sentence for first degree
28 murder and a possible forty-eight-year sentence if convicted of
second degree murder, he repeatedly asked for a plea deal with as
little prison time as possible. See People v. Corson, 2016 CO 33,
¶ 35 (explaining that when assessing whether a defendant would
elect to plead guilty or go to trial, appellate courts have considered
the comparative sentencing exposure between a proffered plea
bargain and conviction after trial). Accordingly, we agree with the
postconviction court’s conclusion that Rabinkov failed to sufficiently
show there is a reasonable probability that, had he received more
thorough advice from his defense team, he would have opted for
trial rather than accept a plea deal.
VII. Disposition
¶ 58 We affirm the postconviction court’s order denying Rabinkov’s
motion for postconviction relief.
JUDGE YUN and JUDGE SCHOCK concur.