Peo v. Richards

Opinion

23CA1165 Peo v Richards 08-27-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1165 Boulder County District Court No. 08CR284 Honorable Patrick Butler, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. James Michael Richards, Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE LIPINSKY Yun and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 27, 2026

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

¶1 James Michael Richards appeals the postconviction court’s order summarily dismissing two of the three claims (the subject claims) he asserted in his pro se Crim. P. 35(c) motion and denying his request for an evidentiary hearing. We reverse the dismissal of the subject claims, affirm the denial of Richards’s request for a hearing on the claims that his postconviction counsel asserted in a supplement to the motion, and remand for further proceedings consistent with this opinion.

I. Background

A. The Trial Court

¶2 In 2011, a jury convicted Richards of second degree kidnapping, two counts of first degree burglary, menacing, false imprisonment, two counts of criminal mischief involving $500 to $1,500 in damage, first degree criminal trespass, two counts of tampering with a motor vehicle, and three crime of violence sentence enhancers.

¶3 The charges (the 2008 charges) stemmed from a 2008 incident in which Richards broke into the home of Dina Bodaubay, his ex‑girlfriend, and forced her husband, Douglas Edwards, into the basement at gunpoint.

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¶4 Over the next approximately fourteen hours, Richards engaged Edwards in conversation, alternating between being upset, threatening, and polite.

¶5 Edwards reported that Richards said he was suicidal, blamed many of his problems on his breakup with Bodaubay, and claimed to be acting out of revenge. Richards also discussed his Navy service, financial struggles, and feelings of failure. In addition, Richards admitted that, in November 2006, he vandalized Edwards’s car by putting “pool chemicals” in the oil tank, and that, the following year, he placed a foreign substance in the gas tank of Bodaubay’s car.

¶6 Edwards escaped after Richards fell asleep.

¶7 Although police were initially skeptical of Edwards’s account, they arrested Richards. While in custody, Richards confirmed the accuracy of Edwards’s statements about the incident.

¶8 At trial, defense counsel asserted that Richards lacked the mental state required for convictions on the kidnapping and burglary counts. Evidence showed that Richards had been diagnosed with paranoid schizophrenia and depressive disorder,

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among other mental health conditions, and was being treated with antipsychotic and antidepressant medications.

¶9 At sentencing, Richards’s sister offered brief remarks about his Naval service. In a more extensive allocution, Richards explained that he had advanced quickly in rank while serving as a radar operator and had completed a four‑year enlistment. His trial counsel told the court that Richards was honorably discharged from the Navy, but he offered no further details regarding Richards’s military service.

¶ 10 When addressing mitigating factors, the trial court observed that Richards had “served in the Navy.”

¶ 11 The trial court sentenced Richards to an aggregate term of thirty years in the custody of the Department of Corrections. As relevant here, the trial court imposed three consecutive ten‑year sentences — one for the second degree kidnapping conviction and one for each first degree burglary conviction. The court ordered the remaining sentences to run concurrently. The court said that it was imposing the minimum sentence permitted by law, explaining that the General Assembly had “preempted any discretion [the

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court] might have to make allowance for the more sympathetic explanations for conduct.”

B. The Direct Appeal

¶ 12 Richards filed a direct appeal. As relevant here, a division of this court concluded that his two first degree burglary convictions could not both stand because they “were based on the same unlawful entry of the victims’ home.” People v. Richards, slip op. at 22-23 (Colo. App. No. 11CA1824, Sep. 11, 2014) (not published pursuant to C.A.R. 35(f)) (Richards I). As a result, the division vacated the burglary by menacing conviction. Id. at 22‑24. The division also held that the false imprisonment conviction merged into the second degree kidnapping conviction because it was a lesser included offense. Id. at 22.

¶ 13 The division explained that “[r]esentencing is proper where convictions with consecutive sentences must be merged in order to remedy a double jeopardy violation.” Id. at 24. The division therefore “remanded to the trial court with directions to (1) merge [Richards]’s conviction and sentence for first degree burglary assault/menace; (2) merge [Richards]’s conviction for false imprisonment into his conviction for second degree kidnapping; (3)

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resentence [Richards]; and (4) correct the mittimus accordingly.” Id. at 30.

C. The Resentencing Hearing

¶ 14 At the post-remand resentencing hearing, Richards made only a brief reference to his service in the Navy. Resentencing counsel did not discuss Richards’s military record, and, in imposing the new sentence, the resentencing court merely noted that Richards had “served our country in the Navy.”

¶ 15 The resentencing court imposed the same sentences as the trial court for the menacing, criminal mischief, vehicle tampering, and trespass convictions. At the prosecution’s urging, however, the resentencing court increased the sentences for Richards’s second degree kidnapping and first degree burglary convictions from ten to fifteen years each, thereby effectively reinstating the thirty‑year aggregate sentence previously imposed.

D. The Resentencing Appeal

¶ 16 Richards appealed the new sentence. A division of this court affirmed. People v. Richards, slip op. at ¶ 1 (Colo. App. No. 16CA1639, May 9, 2019) (not published pursuant to C.A.R. 35(e)) (Richards II).

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¶ 17 The Richards II division examined the application of the resentencing statutes. Under section 18-1-409(3), C.R.S. 2025, if an appellate court remands for resentencing, the resentencing court may not impose a longer sentence than the original one “unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court.” Richards II, No. 16CA1639, slip op. at ¶ 10 (quoting § 18-1-409(3)).

¶ 18 The division determined that section 18-1-409(3) did not apply to Richards’s resentencing because, in his first appeal, he did not “mount a standalone challenge to the propriety of any of his sentences.” Id. at ¶ 11. Section 18-1-409(1) grants a defendant only “one appellate review of the propriety of the sentence.” The division noted that, in the first appeal, Richards sought reversal of the burglary conviction based on alleged constitutional and trial errors. Richards II, No. 16CA1639, slip op. at ¶ 11. The division explained:

In his first appeal, Richards successfully challenged, on double jeopardy grounds, the validity of his convictions for false imprisonment and one count of first degree burglary, but he did not seek review of the

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propriety of those sentences. Accordingly, he may not now avail himself of the protections in section 18-1-409(3).

Id. at ¶ 13.

¶ 19 (The division also rejected Richards’s Crim. P. 25 argument, in which he challenged the change in judge between the trial and the post-remand resentencing hearing. Id. at ¶¶ 16-19.)

E. Richards’s Pro Se Crim. P. 35(c) Motion and the Supplement to the Motion

¶ 20 In 2021, Richards timely filed a pro se Crim. P. 35(c) motion that raised three claims.

¶ 21 First, he argued that his trial counsel was ineffective for failing to challenge the legality of his sentence on the ground that the sentences were required to run concurrently under section 18-1-408(3), C.R.S. 2025, because the 2008 charges arose from a single episode involving a single victim and were supported by identical evidence.

¶ 22 Second, Richards argued that his resentencing counsel was ineffective for failing to argue that the increased sentences imposed following remand violated Richards’s double jeopardy protections. Richards further asserted that his first appellate counsel (the same

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attorney who had represented him at the resentencing) was ineffective for failing to “properly attack the propriety of his sentence” in the direct appeal, which prevented him from challenging the increased sentence he received after remand.

¶ 23 Third, he contended that his trial counsel failed to adequately advise him during plea negotiations. Richards acknowledged that he did not recall or “fully understand[]” what plea offers had been made and could not access records to confirm any such offer. He nevertheless alleged that he knew “there were plea offers made, one specifically limiting [his] criminal exposure to 20 years.” Richards asserted that he would “undoubtedly” have accepted such a plea offer if his trial counsel had advised him of it, rather than proceed to trial “without any plausible defense to the most severe charges.”

¶ 24 Lastly, he requested the appointment of postconviction counsel and an evidentiary hearing.

¶ 25 About two months later, the postconviction court issued an order on Richards’s Crim. P. 35(c) motion. In its order, the court summarily rejected the subject claims but found “arguable merit” in Richards’s plea offer claim. The court referred Richards’s pro se motion to the Office of the Public Defender for evaluation of that

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claim and for assertion of any additional claims that the Public Defender found to have arguable merit. After the Public Defender identified a conflict of interest, the postconviction court appointed alternate defense counsel (postconviction counsel) for Richards.

F. The Supplement to Richards’s Crim. P. 35(c) Motion

¶ 26 Postconviction counsel filed a supplement to Richards’s Crim. P. 35(c) motion. In addressing Richards’s plea offer claim, postconviction counsel noted that trial counsel’s file showed no indication of a plea offer from the prosecution. Although postconviction counsel requested a copy of the prosecution’s file from the deputy district attorney assigned to Richards’s case at the time of trial, postconviction counsel did not receive it.

¶ 27 Postconviction counsel also raised a new claim that resentencing counsel was ineffective for failing to make a sufficient mitigation argument at the resentencing hearing. Specifically, postconviction counsel contended that resentencing counsel did not present evidence of Richards’s honorable discharge from the Navy or his medals and commendations and the absence of such mitigation evidence prejudiced Richards.

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¶ 28 In addition, postconviction counsel renewed Richards’s request for an evidentiary hearing.

¶ 29 In response to the supplemental plea claim, the prosecution argued that the claim was “conclusory” and “vague and lacking in sufficient detail” because postconviction counsel had not produced any evidence that trial counsel received a plea offer. The prosecution further asserted that “mandatory prison charges” involving “aggravated” facts are “rarely bargained down.”

¶ 30 The prosecution also argued that, for two reasons, Richards had not shown prejudice resulting from trial counsel’s asserted failure to communicate an alleged plea offer to him. First, Richards maintained his innocence at trial. Second, a jail coordinator informed the court before sentencing that Richards did not understand the difference between ten and eighty years in prison and that the “nuance of making a plea was beyond his ability to filter thru [sic] his mind.” The prosecution said this evidence showed that Richards would not have accepted a plea offer even if his trial counsel had advised him that the prosecution had made one.

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¶ 31 The postconviction court issued an order denying, without an evidentiary hearing, the two claims that postconviction counsel asserted in the supplement to Richards’s pro se Crim. P. 35(c) motion — the expanded plea offer claim and the mitigation evidence claim. In rejecting the expanded plea offer claim, the court said:

Insufficient evidence was presented to convince the Court that the People made any plea offer to [Richards] in this case. Further, no evidence was presented to show that even if a plea offer was made from the People to [trial]

counsel, that such offer was not passed onto [sic] [Richards].

The preponderance of the evidence presented regarding this issue is that no plea offer was made in this case. Therefore, there was no plea offer to pass onto [sic] [Richards] and therefore, no opportunity for [Richards] to accept or reject a plea offer.

The People are not obligated to make a plea offer in any case. Other than vague and conclusory assertions, there was no plea offer shown. [Trial] counsel is not ineffective under [Strickland v. Washington, 466 U.S. 668 (1984)]

when no plea offer is made by the People.

This claim is DENIED without a hearing. The Court cannot find that [trial] counsel’s conduct fell below the standard of care. Further, even if counsel’s actions fell below the standard of care, there is no prejudice under Strickland, because there is insufficient proof that any

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offer was made by the People which needed to be transmitted to [Richards].

¶ 32 The postconviction court also denied the mitigation evidence claim asserted in the supplement. It found that trial counsel and resentencing counsel did not perform deficiently because trial counsel referenced Richards’s military service at the original sentencing and resentencing counsel did so at the resentencing. More significantly, the court concluded that any such mitigation evidence “would not likely have changed the sentence or resentence” in light of the “significantly aggravated” circumstances of Richards’s offense.

G. Appellate Arguments

¶ 33 Richards argues that the postconviction court made two reversible errors. First, he contends that the court violated Crim. P. 35(c)(3) by summarily rejecting the subject claims and appointing counsel only for his third claim. Richards notes that Crim. P. 35(c)(3) and People v. Segura, 2024 CO 70, ¶ 7, 558 P.3d 234, 237, require a postconviction court to forward the entire pro se motion to the Public Defender’s Office if the court concludes that any of the claims asserted in the motion has arguable merit.

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Similarly, Richards asserts that the postconviction court “only somewhat ambiguously appointed counsel to add claims” and that postconviction counsel may have believed he lacked authorization to do more than expand on Richards’s third pro se claim.

¶ 34 Second, he asserts that the court erred by denying without an evidentiary hearing the two claims presented in the supplement. As alleged in the supplement, trial counsel was ineffective because Richards would have accepted a plea offer for a twenty‑year prison sentence had he known of it. Further, he argues that trial counsel and resentencing counsel were ineffective for failing to present sufficient mitigation evidence of his military service at the original sentencing and the resentencing, respectively.

¶ 35 Because the postconviction court erred by denying the subject claims rather than forwarding the entire pro se Crim. P. 35(c) motion to postconviction counsel, we reverse and remand the case to allow postconviction counsel to supplement the subject claims, if postconviction counsel determines that supplementation is warranted. But we affirm the court’s denial — without a hearing — of the two claims presented in postconviction counsel’s supplement.

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II. Analysis

A. The Postconviction Court Reversibly Erred by Denying the Subject Claims Before Forwarding Richards’s Pro Se Motion to Postconviction Counsel

1. Standard of Review

¶ 36 We review de novo a postconviction court’s application of Crim. P. 35(c), Segura, ¶ 21, 558 P.3d at 239, as well as its summary denial of a Crim. P. 35(c) claim, People v. Nozolino, 2023 COA 39, ¶ 7, 533 P.3d 966, 968.

2. The Postconviction Court Violated Crim. P. 35(c)(3) and Thereby Deprived Richards of His Right to Postconviction Counsel

¶ 37 Under Crim. P. 35(c)(3)(IV), “[t]he court shall promptly review” a postconviction motion and, “[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.” Crim. P. 35(c)(3)(V) specifies the procedure if the postconviction court does not deny all the claims in the motion. As relevant here:

If the court does not deny the motion under (IV) above, the court shall cause a complete copy of said motion to be served on the prosecuting attorney if one has not yet been served by counsel for the defendant. If the defendant has requested counsel be appointed

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in the motion, the court shall cause a complete copy of said motion to be served on the Public Defender. Within 49 days, the Public Defender shall respond as to whether the Public Defender’s Office intends to enter on behalf of the defendant . . . . In such response, the Public Defender shall identify whether any conflict exists, request any additional time needed to investigate, and add any claims the Public Defender finds to have arguable merit.

Crim. P. 35(c)(3)(V).

¶ 38 In Segura, the supreme court clarified the interplay between Crim. P. 35(c)(3)(IV) and (V). In that case, the defendant filed a pro se Crim. P. 35(c) motion containing eleven claims and a request for appointment of counsel. Segura, ¶¶ 12-13, 558 P.3d at 238. The postconviction court denied ten of those claims and referred the remaining claim to postconviction counsel. Id. at ¶ 13, 558 P.3d at 238. Postconviction counsel later filed a supplemental motion addressing the remaining claim, which the postconviction court denied following an evidentiary hearing. Id. at ¶¶ 14-15, 558 P.3d at 238.

¶ 39 In reversing the postconviction court’s summary dismissal of the ten claims, the supreme court explained that “paragraph (V) is triggered if paragraph (IV) is inapplicable because the court

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concludes that at least one claim in the defendant’s motion has arguable merit.” Id. at ¶ 25, 558 P.3d at 240. “Thus, upon its initial review of a Crim. P. 35(c) motion containing a request for postconviction counsel, the court must either deny the motion and thus all of the claims, or not deny the motion and thus none of the claims — there is no halfway option.” Id. at ¶ 26, 558 P.3d at 240; see Nozolino, ¶¶ 28-29, 533 P.3d at 969-70.

¶ 40 The supreme court noted that, once the postconviction court forwards the motion to postconviction counsel, postconviction counsel must then decide “which claims (if any) lack arguable merit and should be abandoned, which arguably meritorious claims (if any) should be supplemented, and which new claims (if any) have arguable merit and should be added. The parties must thereafter brief any arguably meritorious claims, including those supplemented and added.” Segura, ¶ 26, 558 P.3d at 240.

¶ 41 Like the defendant in Segura, Richards filed a pro se Crim. P. 35(c) motion and requested the appointment of counsel. Once the postconviction court found that at least one of Richards’s claims had arguable merit, Crim. P. 35(c)(3)(V) required the postconviction court to refer the entire motion to postconviction counsel. The

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court erred by summarily denying the subject claims and appointing counsel to pursue only the third claim.

¶ 42 Not only did the postconviction court fail to comply with Crim. P. 35(c)(3)(V), but its decision to deny the subject claims while appointing counsel only to pursue Richards’s third claim effectively deprived Richards of his right to postconviction counsel. Once the court identified that at least one of Richards’s claims was arguably meritorious, it became counsel’s responsibility — not the court’s — to determine which claims in the pro se motion warranted further investigation and supplementation. See Silva v. People, 156 P.3d 1164, 1168 (Colo. 2007). Although there is no constitutional right to postconviction counsel, once counsel is appointed, the court must not interfere with counsel’s ability to provide effective representation. See People v. Breaman, 939 P.2d 1348, 1351-52 (Colo. 1997). A court-imposed limitation on counsel’s ability to pursue all potential postconviction claims improperly limits counsel’s ability to represent the defendant effectively. See Segura, ¶ 8, 558 P.3d at 237. Accordingly, when the Crim P. 35(c)(3)(V) procedure applies, the court must allow postconviction counsel to fully investigate every claim raised in the pro se motion and to

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supplement those claims that postconviction counsel finds to have arguable merit. See § 21-1-104(1)(b), (2), C.R.S. 2025.

¶ 43 The postconviction court did not summarily deny Richards’s pro se motion in its entirety under Crim. P. 35(c)(3)(IV). Rather, it appointed postconviction counsel for Richards as required by Crim. P. 35(c)(3)(V), but it then ran afoul of the rule by hamstringing counsel’s ability to represent Richards by summarily denying the subject claims at the outset. Once the court appointed postconviction counsel for Richards, it could not then undermine Richards’s right to the effective assistance of counsel by barring counsel from investigating and supplementing the subject claims. See Crim. P. 35(c)(3)(V). By summarily denying those claims, the postconviction court sent the clear message that counsel could not review and investigate the subject claims — even if postconviction counsel believed they had arguable merit and warranted supplementation. However, we disagree with Richards’s assertion that the postconviction court barred postconviction counsel from supplementing Richards’s pro se motion with new claims; the postconviction court expressly ordered counsel to “add any claims” that counsel “finds to have arguable merit.”

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¶ 44 Thus, we hold that the postconviction court erred by summarily denying the subject claims and referring only Richard’s third pro se claim to postconviction counsel.

3. The Postconviction Court’s Error Was Not Harmless

¶ 45 We next turn to whether the postconviction court’s error was harmless. “An error is not harmless, as relevant here, if it affected the fairness of the district court proceedings.” People v. Higgins, 2017 COA 57, ¶ 16, 413 P.3d 298, 301.

¶ 46 In Higgins, the division explained that prejudice is presumed when the postconviction court fails to provide the Public Defender’s Office with the defendant’s pro se Crim. P. 35(c) motion in violation of Crim. P. 35(c)(3)(V). See id. at ¶ 17, 413 P.3d at 301.

¶ 47 In that case, the postconviction court sent a copy of the defendant’s pro se Crim. P. 35(c) motion to the prosecution but not to the Public Defender’s Office, then denied the motion without a hearing after receiving the prosecution’s response. Id. at ¶¶ 1, 13, 413 P.3d at 299, 300. The Public Defender’s Office had never indicated whether it would represent the defendant, identified any conflict, requested additional time to investigate, or supplemented

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the motion with any additional claims. Id. at ¶¶ 1-5, 413 P.3d at 299.

¶ 48 After determining that the postconviction court erred by failing to follow the procedure in Crim. P. 35(c)(3)(V), the division considered whether the error was harmless. Id. at ¶ 16, 413 P.3d at 301. The division’s discussion of prejudice is equally applicable here:

We do not consider the merits of [the defendant’s] claims to determine whether the court’s error was harmless. This is so because harmlessness can never be measured by the face of the motion because the Public Defender can add claims to the defendant’s motion.

That is, the district court’s decision not to send [the defendant’s] postconviction motion to the [P]ublic [D]efender’s [O]ffice deprived [the defendant] of the opportunity to have the [P]ublic [D]efender’s [O]ffice respond or add any claims with arguable merit.

Id. at ¶ 17, 413 P.3d 301 (citations omitted). The division added, “[b]ecause the procedures mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit, we must conclude that the court’s failure to comply may have prejudiced” the defendant. Id. (quoting People v. Davis, 2012 COA 14, ¶ 14, 272 P.3d 1167, 1170).

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¶ 49 The Higgins division clarified the narrow scope of its ruling: “[O]ur discussion reaches only the [postconviction] court’s procedure; we express no opinion about the merits of [the defendant’s] claims, about whether his claims require a hearing, or about whether [the defendant] will be entitled to postconviction counsel.” Id. at ¶ 19, 413 P.3d at 301.

¶ 50 Similarly, in People v. Chalchi-Sevilla, 2019 COA 75, ¶ 24, 454 P.3d 359, 363, another case in which the postconviction court violated Crim. P. 35(c)(3)(V), the division concluded that “the appropriate procedure is to fulfill what Crim. P. 35(c)(3)(V) requires”: “remanding with directions to appoint postconviction counsel (if the defendant requested appointment of counsel in the petition), allow[ing] counsel time to investigate and supplement the petition with additional claims if need be, and then hold[ing] the evidentiary hearing on any potentially meritorious claims.” The Chalchi-Sevilla division echoed the Higgins division’s instructions to the postconviction court on remand:

[W]e need not address the merits of the postconviction court’s denial of [the defendant’s] second claim [in violation of Crim.

P. 35(c)(3)(V)]. Because [the defendant’s] first claim had potential merit, the postconviction

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court should have proceeded to Crim.

P. 35(c)(3)(V) by referring the complete pro se motion to counsel and allowing counsel to supplement any potentially meritorious claims.

On remand, postconviction counsel can determine whether to continue to pursue [the defendant’s second] claim . . . . And, if postconviction counsel pursues this claim, the postconviction court may still resolve the issue without a hearing if, based on the pleadings before the court at that time, it concludes that the claim lacks sufficient factual or legal grounds for relief.

Id. at ¶ 26, 454 P.3d at 363; see Nozolino, ¶ 36, 533 P.3d at 970 (“[B]ecause the postconviction court did not summarily deny [the defendant’s] motion pursuant to Crim. P. 35(c)(3)(IV), the court erred by not providing a complete copy of the motion” to postconviction counsel and, “in order ‘to put the train back on the tracks at the point it derailed,’ we hold that, on remand, the court shall forward a complete copy of [the defendant’s] motion to [postconviction counsel] and that counsel may consider all the claims asserted therein.” (quoting Chalchi-Sevilla, ¶ 23, 454 P.3d at 363)).

¶ 51 Following the reasoning of these cases, we reverse the postconviction court’s order summarily dismissing the subject claims and remand the case to the postconviction court with

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instructions to forward Richards’s pro se motion to postconviction counsel. Counsel should evaluate the subject claims for possible supplementation and, if counsel finds that either claim is potentially meritorious, file a supplement to the motion. Segura, ¶ 39, 558 P.3d at 242-43; Chalchi-Sevilla, ¶¶ 23-24, 454 P.3d at 363.

B. The Two Claims Asserted in Postconviction Counsel’s Supplement to Richards’s Pro Se Crim. P. 35(c) Motion

1. Standard of Review

¶ 52 “We review de novo a court’s decision to deny a Crim. P. 35(c) motion without an evidentiary hearing.” People v. Melendez, 2024 COA 21M, ¶ 10, 549 P.3d 1028, 1031.

2. Ineffective Assistance of Counsel

¶ 53 A defendant in a criminal case is entitled to the effective assistance of counsel. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686-87; see Davis v. People, 871 P.2d 769, 772 (Colo. 1994). To establish a violation of this right, a defendant must show

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both that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. To demonstrate prejudice, a defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “The duty of counsel is, in essence, the duty to act as any reasonable attorney would act in the same circumstances.” People v. Pozo, 746 P.2d 523, 527 (Colo. 1987).

¶ 54 Because judicial review of an attorney’s performance is “highly deferential,” reviewing courts must “eliminate the distorting effects of hindsight” and evaluate the challenged conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689. In addition, courts must “indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id.

¶ 55 Under Crim. P. 35(c)(2)(I), defendants may challenge convictions “obtained or sentence[s] imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.” A presumption of validity attaches to every judgment

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of conviction, and “it is [a defendant]’s burden to show, by a preponderance of the evidence, that his conviction was constitutionally infirm.” People v. Simpson, 69 P.3d 79, 80 (Colo. 2003).

3. Applicable Law

¶ 56 A court may summarily deny a Crim. P. 35(c) motion if “the motion, files, and record clearly establish that the defendant is not entitled to relief” or if “the claims raise only an issue of law, or if the allegations, even if true, do not provide a basis for relief.” People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005); accord Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003) (Crim. P. 35(c)(3) permits denial of a postconviction claim without a hearing when the “motion, files, and record in the case clearly establish that the allegations presented in the defendant’s motion are without merit and do not warrant postconviction relief.”). Summary denial is likewise proper when “the claims are bare and conclusory in nature, and lack supporting factual allegations.” Venzor, 121 P.3d at 262.

¶ 57 Applying these principles, we hold that the postconviction court did not err by summarily denying Richards’s two supplemental claims.

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4. The Postconviction Court Did Not Err by Denying Richards’s Plea Offer Claim Without a Hearing

¶ 58 Richards first contends that the postconviction court erred by denying, without a hearing, his claim that trial counsel was ineffective for failing to properly advise him regarding a plea offer. He asserted that, had counsel properly advised him, he would have accepted the prosecution’s plea offer.

¶ 59 A defendant’s right to the effective assistance of counsel “extends to the plea bargaining process.” Chalchi-Sevilla, ¶ 6, 454 P.3d at 361. The two-part Strickland test applies to ineffective assistance claims relating to plea offers. See Lafler v. Cooper, 566 U.S. 156, 163 (2012). Although counsel must provide competent advice during plea negotiations, defendants “have ‘no right to be offered a plea.’” Id. at 168 (quoting Missouri v. Frye, 566 U.S. 134, 148 (2012)).

¶ 60 When advising a defendant about a plea offer, trial counsel must inform the client “with complete candor” and offer counsel’s “best estimate of the probable outcome of the case.” People v. Riley, 529 P.2d 1312, 1313 (Colo. 1975). Failing to properly advise a defendant about sentencing exposure “deprives the defendant of the

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opportunity to make a reasonably informed decision whether to accept or reject an offer and constitutes deficient performance under Strickland.” People v. Delgado, 2019 COA 55, ¶ 17, 442 P.3d 1021, 1026. A defendant can establish deficient performance when “the defendant . . . goes to trial instead of taking a more favorable plea” because of counsel’s erroneous advice. Lafler, 566 U.S. at 166. Counsel’s failure to convey a plea offer likewise constitutes deficient performance. People v. Perry, 68 P.3d 472, 477-78 (Colo. App. 2002).

¶ 61 However, nothing in the record or the filings in this case suggests that trial counsel failed to convey a plea offer to Richards. His claim relies solely on his vague recollection that the prosecution made a plea offer, which his trial counsel supposedly rejected. As the prosecution noted in its response to postconviction counsel’s supplement, the claim is fatally “vague,” “conclusory,” and “lacking in sufficient detail.” We acknowledge that the prosecution never provided postconviction counsel with the prosecution’s case file, despite postconviction counsel’s request for it. But nothing in the record suggests that the prosecution acted in bad faith by not producing the file, that postconviction counsel did not make a

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reasonable effort to obtain it, that the file would show that the prosecution conveyed a plea offer to trial counsel, or even that the file still exists.

¶ 62 Although Richards claimed in his pro se motion that “there were plea offers made,” he also conceded that “there is no record evidence of pleas that were offered.” Postconviction counsel likewise confirmed that “trial counsel’s file does not indicate that any plea offers were made.” And, in its response to the supplement, the prosecution explained that “the People charged [Richards] with significant mandatory prison charges with a highly aggravated set of facts. Such charges are rarely bargained down.”

¶ 63 In support of his plea offer claim, Richards relies on a colloquy between trial counsel and the prosecutor at a hearing early in his case. Trial counsel requested that the case be set over for a week to allow the defense to “determine . . . what type of plea to enter.” The prosecutor agreed to the defense’s request “as long as the only purpose for the set-over is to decide what kind of plea to enter.” Viewed in context, the reference to “plea” had nothing to do with any plea offer.

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¶ 64 Richards also points to statements referencing plea offers that a mental health professional and his counsel made during evaluations of his mental competency. Those statements, however, did not refer to any actual plea offer, but instead addressed Richards’s understanding of the legal proceedings. His responses during those evaluations further underscore the lack of documentary evidence of a plea offer.

¶ 65 For example, Richards told one evaluator he “was unclear as to whether the State had a strong case against him and his rational[e] for accepting a plea bargain was ‘Drop my charges . . . .’” In another instance, he described “the four possible pleas available to him” and accurately explained the plea bargain process, but he admitted his lack of experience “with the process.” At one point, he mentioned being “offered a deal for [twenty]-[thirty] years.” But that comment does not support the allegation in his pro se Crim. P. 35(c) motion that he was offered a plea “specifically limiting [his] criminal exposure to [twenty] years.” And a plea offer providing for a thirty-year prison sentence would not have been more favorable than the thirty-year sentence imposed at resentencing. Lastly, although the presentence report contains a mental health worker’s

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comment that “[t]he nuance of making a plea was beyond [Richards’s] ability to filter thru [sic] his mind,” that reference does not establish that the prosecution made a plea offer to trial counsel.

¶ 66 Thus, the postconviction court properly found that Richards’s allegations regarding a plea offer were vague and conclusory.

¶ 67 But even if we were to assume that Richards’s recollection was sufficient to show that the prosecution made a plea offer, he still cannot demonstrate prejudice. To establish prejudice under Strickland when the ineffective assistance of counsel leads to the rejection of a plea offer, and the defendant is later convicted at trial,

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Lafler, 566 U.S. at 164; accord Chalchi-Sevilla, ¶ 6, 454 P.3d at 361. Although Richards asserts that he would have accepted a plea offer for a twenty- to thirty-year prison sentence, the trial court’s

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remarks — specifically, its explanation that it was imposing the minimum sentence permitted by law and that the General Assembly had “preempted any discretion [the court] might have to make allowance for the more sympathetic explanations for conduct” — do not establish a reasonable probability that it would have approved a plea agreement for less than the thirty-year prison sentence it actually imposed.

¶ 68 Nonetheless, Richards argues that the postconviction court erred by denying his plea offer claim without a hearing because he was only required to allege facts that, if true, would warrant relief. While defendants need not fully substantiate their Crim. P. 35(c) claims or provide all supporting evidentiary support in their postconviction motions, see White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988), defendants cannot rely on bald assertions unsupported by the record. A postconviction court may deny relief where the allegations are “merely conclusory, vague, or lacking in detail.” People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007); accord Venzor, 121 P.3d at 262.

¶ 69 As noted, supra Part I.F., in denying this claim, the postconviction court found that Richards’s allegations were

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insufficient to show that the prosecution made any plea offer to trial counsel. In reaching this conclusion, the postconviction court relied on the motion, files, and record, and it correctly noted that nothing beyond Richards’s vague recollection supported his claim that the prosecution had conveyed a plea offer to trial counsel. See Chalchi-Sevilla, ¶ 7, 454 P.3d at 361 (noting that a court may deny a postconviction motion without an evidentiary hearing when the motion, files, and record establish that the allegations are without merit).

¶ 70 Thus, the postconviction court did not err by denying Richards’s plea offer claim without an evidentiary hearing.

5. The Postconviction Court Did Not Err by Summarily Denying Richards’s Supplemental Mitigation Evidence Claim

¶ 71 Richards next asserts that the postconviction court further erred by denying his supplemental claim that resentencing counsel failed to provide the resentencing court with sufficient mitigation evidence about his military service. We disagree.

¶ 72 At resentencing, both Richards’s counsel and the court mentioned Richards’s Navy service. In addition, at the hearing, the court reviewed the original sentencing transcript, which included a

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discussion of Richards’s military service. Resentencing counsel presented mitigation evidence that included references to Richards’s military service, his family’s ongoing support, and his positive conduct while incarcerated. Although resentencing counsel did not mention specific medals or commendations that Richards received, the decision to focus on Richards’s more recent circumstances rather than his Navy service fell “within the wide range of reasonable professional assistance.” Ardolino, 69 P.3d at 76.

¶ 73 Further, Richards did not show prejudice from resentencing counsel’s alleged failure to sufficiently highlight Richards’s military achievements. As the postconviction court explained, additional information about Richards’s commendations and awards would likely not have affected his sentence given the seriousness of his criminal conduct. The postconviction court observed that, because the resentencing court “knew about [Richards]’s [N]aval service” and “highlighted the abhorrent nature of his crimes,” the presentation of Richards’s Naval records “would not have altered the sentence in any way.” See Davis, 871 P.2d at 774 (“[W]hen there is overwhelming evidence of both guilt and aggravating factors, testimony that the defendant is a ‘good’ person is unlikely to alter

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the outcome of a sentencing proceeding.” (quoting Strickland, 466 U.S. at 700)).

¶ 74 For these reasons, the postconviction court did not err by denying Richards’s mitigation evidence claim without conducting an evidentiary hearing.

¶ 75 In addition, Richards asserts on appeal that counsel was ineffective by failing to present additional mitigation evidence at the original sentencing hearing; however, in the supplement to Richards’s pro se Crim. P. 35(c) claim, postconviction counsel focused on counsel’s alleged failure at the resentencing to provide sufficient mitigation evidence regarding Richards’s military service. Because postconviction counsel did not include in the supplement a claim that counsel was ineffective for not providing an adequate amount of mitigation evidence at Richards’s original sentencing hearing, we do not address the claim. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996). In any event, the postconviction court found that trial counsel referenced Richards’s military service at the original sentencing. More generally, the record reflects that trial counsel made reasonable strategic choices when presenting mitigation evidence at the original sentencing hearing.

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III. Disposition

¶ 76 The order is affirmed in part and reversed in part. We remand the case to the postconviction court for further proceedings consistent with this opinion. The postconviction court must allow postconviction counsel to review the two dismissed pro se Crim. P. 35(c) claims. Postconviction counsel must then determine whether one or both of those claims are arguably meritorious and should be supplemented. If postconviction counsel decides to supplement either or both such claims, the postconviction court must decide whether to hold a hearing on them following briefing on the new supplement. Lastly, we affirm the postconviction court’s denial without a hearing of the claims argued in postconviction counsel’s supplement.

JUDGE YUN and JUDGE SCHUTZ concur.