Peo v. Richardson

• Court: Colorado Court of Appeals
• Decided: August 7, 2025
• Docket: 24CA0901
• Status: Unpublished

Opinion

24CA0901 Peo v Richardson 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0901 Jefferson County District Court No. 15CR3469 Honorable Phillip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tyrone Javonne Richardson,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tyrone Javonne Richardson, Pro Se ¶1 Tyrone Javonne Richardson appeals the postconviction court’s

order denying his Crim. P. 35(c) motion without a hearing. We

affirm.

I. Background

¶2 A jury convicted Richardson of attempted first degree murder,

second degree assault, and thirty-one other counts stemming from

a crime spree during which he and two other men robbed a bank,

burglarized a home, and assaulted and shot two people. A division

of this court affirmed the judgment of conviction. People v.

Richardson, (Colo. App. No. 17CA0968, Mar. 5, 2020) (not

published pursuant to C.A.R. 35(e)).

¶3 Richardson filed a timely pro se motion for postconviction

relief under Crim. P. 35(c). In the motion, he asserted several

claims related to his trial counsel’s performance — that counsel

allegedly failed to (1) object to the continuance of the preliminary

hearing, which, in turn, gave the prosecution time to arrest

Richardson’s codefendant, which prejudiced his “right to

severance”; (2) invoke his right to a speedy trial; (3) secure a

favorable plea bargain; (4) investigate “a line of defense” for

severance; (5) move to disqualify the judge before trial; and (6)

1 adequately advise him about his right to testify at trial. He argued

that these errors cumulatively resulted in the denial of his right to

effective assistance at trial.

¶4 Richardson also argued in the motion that his appellate

counsel was ineffective for failing to (1) seek review of the district

court’s proportionality decision and “due process sentencing

violations” and (2) argue that the judge should have recused herself

because of her alleged bias and prejudice.

¶5 Lastly, Richardson claimed in the motion that the trial court

erred by not adequately questioning the jurors concerning one of

the jurors’ statements about Richardson’s perceived guilt.

¶6 In a detailed written order, the postconviction court denied

Richardson’s motion without a hearing. Richardson appeals that

order. (A motions division of this court deferred to us the decision

whether to accept Richardson’s untimely reply brief. Although we

hold that we need not consider the brief because Richardson did

not submit it by the filing deadline, we note that the arguments in

that brief would not change the outcome of this appeal.)

2 II. The Postconviction Court Did Not Err by Denying Richardson’s Crim. P. 35(c) Motion

¶7 We review de novo a district court’s decision to deny a Crim. P.

35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14,

459 P.3d 516, 519. We perceive no error.

¶8 A court may deny a Crim. P. 35(c) motion without a hearing

when “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.”

Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations

are bare and conclusory; (2) the allegations in the motion, even if

true, do not warrant relief; or (3) the record directly refutes the

defendant’s claims. People v. Duran, 2025 COA 34, ¶ 15, 569 P.3d

899, 904. A defendant need not set forth the evidentiary support

for the allegations in a Crim. P. 35(c) 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). Although a court must broadly

construe a pro se litigant’s pleadings, it is not a court’s role to

rewrite those pleadings or act as the litigant’s advocate. Cali, ¶ 34,

459 P.3d at 522.

3 ¶9 First, Richardson argues that the postconviction court erred

by not “retroactively” applying Wells-Yates v. People, 2019 CO 90M,

454 P.3d 191, because the prior convictions underlying his habitual

criminal adjudication were no longer considered “grave or serious,

in every situation.” But we will not address this claim because

Richardson did not include it in his motion. See Cali, ¶ 34, 459

P.3d at 522 (“[A]lthough we will broadly construe a pro se litigant’s

pleadings to effectuate the substance, rather than the form, of those

pleadings, we will not consider issues not raised before the district

court in a motion for postconviction relief.”). (The People’s assertion

that Richardson raised the claim in his motion does not alter the

fact that his appellate argument regarding the court’s alleged error

materially differs from the claim in his motion that his appellate

counsel was ineffective for not raising a Wells-Yates argument. See

People v. Backus, 952 P.2d 846, 850 (Colo. App. 1998) (holding that

the parties’ concessions regarding the applicable law do not bind

the appellate court)).

¶ 10 Second, Richardson asserts that the trial judge “abused [her]

discretion” by conducting the proportionality review hearing

following her recusal from the case. (We note that Richardson does

4 not clearly present this claim. But even applying the most liberal

construction to the claim, see People v. Bergerud, 223 P.3d 686,

696-97 (Colo. 2010), we conclude that Richardson waived any error

regarding recusal.)

¶ 11 Richardson’s counsel filed a post-trial motion for recusal of the

trial judge from the habitual criminal phase of the proceedings (the

recusal motion). Defense counsel alleged in the recusal motion that

section 16-6-201, C.R.S. 2024, required the judge’s disqualification

because of her “limited” participation in a 2004 case that formed

the basis of one of the prior habitual criminal counts. When

working as a prosecutor, the judge filed a motion to continue the

preliminary hearing in that case.

¶ 12 Richardson argued that the judge’s “impartiality would [be]

reasonably questioned” but, notably, did not allege that she was

actually biased against him. The judge, “in an abundance of

caution,” granted the recusal motion. Because Richardson

“request[ed] the matter be returned to [the judge’s division] for a

hearing on the proportionality review,” however, the judge

conducted the proportionality review hearing.

5 ¶ 13 Richardson waived this claim because he requested that the

judge conduct his proportionality review hearing and because he

did not allege actual bias. See People v. Garcia, 2024 CO 41M, ¶ 1,

550 P.3d 637, 639-40 (holding that, if a defendant is aware of

potential grounds to disqualify a judge, but fails to raise them

through an objection, the defendant waives any disqualification

claim under section 16-6-201); People v. Dobler, 2015 COA 25, ¶ 7,

369 P.3d 686, 688 (holding that litigants may waive a

disqualification argument not premised on actual bias or prejudice);

see also People v. Rediger, 2018 CO 32, ¶ 40, 416 P.3d 893, 902

(“[W]aiver extinguishes error, and therefore appellate review.”).

¶ 14 Third, and relatedly, Richardson asserts that the

postconviction court erred by denying his claim that trial counsel

was ineffective for failing to investigate and move for the trial

judge’s recusal before trial, and that this failure “prejudice[ed him]

to the [court]’s many damaging denials of trial issues.” We are not

persuaded.

¶ 15 A criminal defendant has a constitutional right to the effective

assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.

art. II, § 16. To obtain relief on an ineffective assistance of counsel

6 claim, a defendant must show that (1) counsel’s performance was

deficient, in that it fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A

court may deny an ineffective assistance claim without a hearing if

the defendant fails to allege facts sufficient to satisfy either prong of

this test. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶ 16 The prejudice element of an ineffective assistance claim

premised on counsel’s failure to file a disqualification motion

cannot be satisfied unless the defendant alleges the judge was

actually biased. People in Interest of A.G., 262 P.3d 646, 651 (Colo.

2011). “Only when a judge is actually biased or prejudiced is there

reason to question the reliability of the result of the proceeding.” Id.

at 652.

¶ 17 Richardson did not argue in his Crim. P. 35(c) motion that the

trial judge was actually biased against him. See People v. Drake,

748 P.2d 1237, 1249 (Colo. 1988) (“A defendant asserting bias on

the part of a trial judge must establish that the judge had a

substantial bent of mind against him or her.”); see also People v.

Jennings, 2021 COA 112, ¶ 28, 498 P.3d 1164, 1172 (“The record

7 must establish such bias clearly; mere speculative statements and

conclusions are not enough.”). Rather, he relies on the judge’s

disqualification before his habitual trial based on the judge’s

“limited” participation as a prosecutor in his 2004 case and asserts

that the judge’s bias was exhibited “due to [her] many rulings”

against him throughout his trial.

¶ 18 But, according to Richardson’s counsel’s affidavit submitted in

support of the recusal motion, the judge said in open court that she

had never appeared on the record in the 2004 case, had not

submitted any other filings in the case, and had no recollection of

the case. Thus, even if trial counsel had discovered before trial that

the judge had minimally participated in the 2004 case, there would

likely have been no legitimate grounds for recusal, and there are no

grounds to question the proceeding’s result. See Garcia, ¶ 21, 550

P.3d at 642-43 (“[W]hile both an appearance of impropriety and

actual bias are grounds for recusal from a case, only when the

judge was actually biased will we question the result.” (quoting

Sanders v. People, 2024 CO 33, ¶ 50, 549 P.3d 947, 955)).

¶ 19 Moreover, there is no evidence that the judge was interested

in, or prejudiced as to, the outcome of the case, and the judge’s

8 adverse rulings are not evidence of actual bias. See People in

Interest of A.P., 2022 CO 24, ¶ 32, 526 P.3d 177, 184 (“[A]dverse

legal rulings by a judge are unlikely to provide grounds for a bias

claim, as they are proper grounds for appeal, not for recusal.”); see

also Schupper v. People, 157 P.3d 516, 521 n.5 (Colo. 2007)

(“[R]ulings of a judge, although erroneous, numerous and

continuous, are not sufficient in themselves to show bias or

prejudice.” (quoting Saucerman v. Saucerman, 461 P.2d 18, 22

(Colo. 1969))).

¶ 20 Accordingly, we, like the postconviction court, conclude that

Richardson failed to set forth allegations that, if proved, would

establish prejudice. The postconviction court thus properly denied

Richardson’s recusal claim without a hearing.

¶ 21 Finally, we conclude that Richardson abandoned the other

Crim. P. 35(c) claims he initially raised in the postconviction court

but does not reassert on appeal. See People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007).

III. Disposition

¶ 22 The order is affirmed.

JUDGE PAWAR and JUDGE LUM concur.