23CA1200 Peo v Richter 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1200 Boulder County District Court No. 20CR300 Honorable Nancy W. Salomone, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John Conrad Richter,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
H. Craig Skinner, Denver, Colorado, for Defendant-Appellant ¶1 John Conrad Richter appeals the postconviction court’s order
denying his Crim. P. 35(c) motion (the motion) without a hearing.
We affirm.
I. Background
¶2 The following facts appear in the documents concerning
Richter’s arrest and the presentence investigation report in his case.
¶3 The victim — Richter’s then-girlfriend — reported that, while
highly intoxicated one night, Richter punched a hole in a wall in her
apartment and broke a glass jar on the floor. The victim told
Richter to leave. He did so but returned shortly thereafter and
demanded to be let inside. When the victim refused to let him in,
Richter broke the door open and entered the apartment.
¶4 Richter took the victim’s phone, so she could not call for help.
He then repeatedly hit her, punched her in the face, and choked her
until she lost consciousness. Eventually, the victim ran barefoot
out of the apartment and into an alleyway, wearing only a t-shirt
and underwear. Richter chased her with a broom, struck her with
it “as hard as he could,” and demanded that she return to the
apartment.
1 ¶5 Once back in the apartment, Richter grabbed a knife and held
it to the victim’s back. He cut the victim multiple times on her
upper thigh before he cut himself on his left arm. Richter
eventually stopped his aggressive behavior and left the victim’s
apartment in the morning.
¶6 After Richter left, the victim contacted Richter’s father via
FaceTime and told him about the incident and her injuries.
Richter’s father saw on the FaceTime video that the victim had
facial and neck injuries. He contacted the police, who responded to
the victim’s apartment. Richter’s father reported that, while
speaking with Richter on the phone, Richter told him that he “was
aware of what happened between him and [the victim] and that he
had stabbed himself with a knife in the arm because of it.”
¶7 The responding officers noted that the victim’s apartment had
been cleaned before their arrival, although they noted broken glass
in a trash can. The officers saw “multiple holes in walls throughout
the apartment as well as extensive damage to the door and
doorframe of the apartment.” They photographed the damage to the
2 ¶8 The officers reported “it was apparent that [the victim] had
been injured based on the red and purple marks on her neck and
face.” The victim was transported to a hospital for evaluation.
Detectives who saw her at the hospital noted numerous injuries
throughout her body. One detective “observed injuries to [the
victim’s] neck that were consistent with strangulation which
included abrasions near both collar bones and under her chin.”
Photos documented the victim’s injuries.
¶9 In addition, the police obtained a security video from one of
the victim’s neighbors. The video showed the interaction between
Richter and the victim outside her apartment on the night of the
incident. Officers who reviewed the video said it depicted the victim
running barefoot out the front door and into an alleyway, wearing
only a t-shirt and underwear, and Richter chasing the victim while
holding a broom and striking the victim on her right side while
demanding that she return to the apartment. After the victim
returned to the apartment, the security video recorded the voice of a
female screaming for help and repeatedly saying, “No.”
¶ 10 The victim’s upstairs neighbor reported that, on the night of
the incident, she was awakened by loud noises coming from the
3 victim’s apartment. The neighbor told police that she heard
slamming doors and yelling. The neighbor then heard Richter leave
the apartment and, upon his return, heard him “pounding on the
door” and demanding to be let in. After the victim refused to let
Richter in, the neighbor heard “slamming, hole punching[,] and
glass shattering.”
¶ 11 The neighbor also provided the police with four audio clips she
recorded during the incident. Detectives described the contents of
the recordings as follows:
[I]n the first recording, detectives could hear a male voice saying, “Open the goddamn door[.”] The female responded but detectives could not hear what she was saying. The male responded and stated, “I’m not going to fucking hurt you.” The female again responded but detectives could not make out what she said. The male then stated, “Open the fucking door. . . . You have five seconds.” Detectives then heard extremely loud banging noises and [Richter] again stated, “Open the door[.”] After this, there was an even louder banging noise which sounded as if the door was busted down. There was a lot of noise afterwards and detectives could not make out what the noise was from. The recording then ended.
The second recording had a lot of banging noises followed by a female screaming, shouting[,] and crying out.
4 The third recording started with a female voice saying, “Get out” and continued with more screaming and shouting from a female voice. It was difficult to hear what was being said but it seemed as if a physical struggle was occurring. At times, the female is heard saying, “No[,”] “Please[,]” and “Don’t do it[.”] A male’s voice was also heard in the recording, but it was unclear what he said.
The fourth audio recording started with a female screaming and pleading. The female was heard screaming, “Please!” and the rest was inaudible. It sounded like the female was screaming but her mouth seemed to be covered or muffled by something.
¶ 12 When taking Richter into custody, officers observed cuts and
puncture wounds on his left arm. At a hospital, Richter told
doctors that he had cut himself with a knife. Officers photographed
Richter’s injuries. Richter says in his opening brief that he told
police “he was a ‘monster’ and that his actions were ‘horrendous.’”
Richter claimed to have no memory of the incident.
¶ 13 Richter was charged with first degree assault, first degree
burglary, two counts of second degree assault, criminal extortion,
two counts of menacing, nine counts of third degree assault,
criminal mischief, obstruction of telephone or telegraph service,
harassment, and five crime of violence sentence enhancer counts.
5 ¶ 14 Before trial, the parties reached a plea agreement, under
which Richter pleaded guilty to the original counts of second degree
assault and third degree assault and to added counts of second
degree burglary and second degree assault (domestic violence).
Richter waived the establishment of a factual basis to support his
guilty pleas. In exchange, the prosecution moved to dismiss the
remaining counts against Richter and stipulated to an aggregate
six-year sentence in the custody of the Department of Corrections.
Richter signed the written plea agreement, in which he expressly
waived his right “to have a sentence reconsideration.” The trial
court accepted Richter’s guilty pleas and imposed the stipulated
sentence.
¶ 15 Richter filed the motion one year later. In the motion, he
raised multiple ineffective assistance of counsel claims. The
postconviction court denied the motion without a hearing in a
comprehensive written order. In the order, the court primarily
found that, even if plea counsel’s representation was deficient,
Richter failed to establish that the deficient representation
prejudiced him. Richter appeals the order denying the motion.
6 II. Legal Authority and Standard of Review
¶ 16 “A criminal defendant is constitutionally entitled to effective
assistance from [the defendant’s] counsel.” Ardolino v. People, 69
P.3d 73, 76 (Colo. 2003). The right to effective assistance of counsel
encompasses counsel’s assistance during the plea bargaining
process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v.
Frye, 566 U.S. 134, 144 (2012). “[A] defendant may challenge [a]
guilty plea on the grounds of ineffective assistance of counsel when
that challenge goes to the issue of whether the plea was knowingly,
voluntarily, and intelligently entered.” People v. Stovall, 2012 COA
7M, ¶ 13, 284 P.3d 151, 154.
¶ 17 To prevail on an ineffective assistance of counsel claim, “a
defendant must prove that 1) counsel’s performance was deficient
and 2) the deficient performance prejudiced the defense.” Dunlap v.
People, 173 P.3d 1054, 1062 (Colo. 2007). The failure to prove
either of these two prongs is fatal to an ineffective assistance claim.
People v. Thompson, 2020 COA 117, ¶ 50, 485 P.3d 566, 574.
¶ 18 To establish deficient performance, a defendant must prove
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88
7 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying
the Strickland test to ineffective assistance of counsel claims in
cases involving guilty pleas). “[J]udicial scrutiny of counsel’s
performance must be highly deferential, evaluate particular acts
and omissions from counsel’s perspective at the time, and indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Ardolino, 69 P.3d at
76.
¶ 19 To establish prejudice, a defendant must show “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Id.
¶ 20 “To prove prejudice in the context of a guilty plea, the
defendant must establish a reasonable probability that but for
counsel’s errors, [the defendant] would not have pleaded guilty and
would have insisted on going to trial.” People v. Vicente-Sontay,
2014 COA 175, ¶ 20, 361 P.3d 1046, 1051. Further, the defendant
“must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.” Padilla v.
8 Kentucky, 559 U.S. 356, 372 (2010); see also People v. Finney, 2012
COA 38, ¶ 71, 328 P.3d 205, 219, aff’d, 2014 CO 38, 325 P.3d
1044.
¶ 21 We review de novo a trial court’s summary denial of a Crim. P.
35(c) motion. People v. Cali, 2020 CO 20, ¶ 14, 459 P.3d 516, 519.
A defendant need not set forth the evidentiary support for the
allegations in a Crim. P. 35 motion, but instead need only assert
facts that, if true, would provide a basis for relief. White v. Denver
Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A court may deny a Crim.
P. 35(c) motion without an evidentiary hearing only where the
motion, files, and record clearly establish that the defendant’s
allegations are without merit and do not warrant relief. Ardolino, 69
P.3d at 77. Thus, “[t]he denial of a claim of ineffective assistance of
counsel without a hearing is justified if, but only if, the existing
record establishes that the defendant’s allegations, even if proven
true, would fail to establish either constitutionally deficient
performance or prejudice.” People v. Chavez-Torres, 2016 COA
169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843.
9 III. Analysis
¶ 22 In the motion, Richter asserted various allegations regarding
plea counsel’s deficient representation. However, he does not
clearly identify how the alleged deficient representation caused him
prejudice.
¶ 23 We construe Richter’s arguments as asserting that (1) plea
counsel was so deficient that Richter was actually or constructively
denied the assistance of counsel altogether; (2) plea counsel’s
deficiencies rendered the proceeding fundamentally unfair, which
either satisfied Strickland’s prejudice prong or constituted
structural error requiring automatic reversal; and (3) he established
prejudice because his allegations, if true, demonstrated that, but for
plea counsel’s deficiencies, the result of the proceeding would have
been different. Accepting as true Richter’s allegations of deficient
performance, we address and reject each of his prejudice
arguments.
¶ 24 First, we conclude that Richter failed to allege facts that, if
true, would establish that plea counsel’s deficiencies actually or
constructively denied him the assistance of counsel.
10 ¶ 25 In some contexts, the prejudice resulting from a counsel’s
deficient performance is presumed. Strickland, 466 U.S. at 691. As
relevant here, “[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.” Id. at
692. Under such circumstances, the Strickland prejudice inquiry
does not apply and the defendant is not required to make an
additional showing of prejudice. People v. Thomas, 2015 COA 17,
¶ 12, 411 P.3d 124, 127; People v. Robles, 74 P.3d 437, 439 (Colo.
App. 2003).
¶ 26 “[A] court may presume prejudice if counsel ‘entirely fails to
subject the prosecution’s case to meaningful adversarial testing.’”
A.R. v. D.R., 2020 CO 10, ¶ 66, 456 P.3d 1266, 1281 (quoting
United States v. Cronic, 466 U.S. 648, 659 (1984)). However, “this
presumption of prejudice applies only in relatively narrow
circumstances, as, for example, when counsel was not made
available, was prohibited by the trial court from participating in a
critical aspect of the proceeding, or was acting under a conflict of
interest.” Id.; see also Ybanez v. People, 2018 CO 16, ¶ 25, 413
P.3d 700, 706; Thomas, ¶ 12, 411 P.3d at 127.
11 ¶ 27 The information in the appellate record demonstrates that,
even if plea counsel’s performance was deficient, Richter was not
actually or constructively denied the assistance of counsel
altogether. Significantly, as the postconviction court noted, plea
counsel negotiated a plea agreement that required the dismissal of
numerous felony charges pending against Richter. If Richter
rejected the plea agreement and was convicted on those charges, he
would have faced a substantially longer prison sentence than the
six-year sentence specified in the plea agreement.
¶ 28 Accordingly, we reject Richter’s claim that he was actually or
constructively denied the assistance of counsel. Richter fails to
establish that plea counsel’s performance, viewed in its entirety, fell
within the narrow circumstances that warrant the presumption of
prejudice. See Bell v. Cone, 535 U.S. 685, 697 (2002) (rejecting the
defendant’s presumption of prejudice argument because counsel’s
failures occurred at specific points during a proceeding rather than
throughout the proceeding as a whole); Cronic, 466 U.S. at 659
(holding there can be no presumption of prejudice unless the denial
of counsel is “complete” and counsel “entirely” fails to subject the
prosecution’s case to testing).
12 ¶ 29 Second, we are not persuaded that Richter’s assertions of plea
counsel’s deficient performance, even if true, established that the
proceeding was fundamentally unfair such that he was entitled to
postconviction relief.
¶ 30 In Weaver v. Massachusetts, 582 U.S. 286 (2017), the United
States Supreme Court addressed whether a defendant must
demonstrate prejudice when the defendant argues in a
postconviction motion that trial counsel was ineffective by not
objecting to a structural error — specifically, the trial court’s
closure of the courtroom to the public. Id. at 290, 293-94, 299.
The Court initially acknowledged that, as relevant here, “an error
has been deemed structural if the error always results in
fundamental unfairness” and that structural errors are not subject
to a prejudice inquiry and require automatic reversal. Id. at 294-
96, 299.
¶ 31 The Court then considered the effect of raising a structural
error argument through a postconviction ineffective assistance
claim and the petitioner’s related interpretation of Strickland that,
“even if there is no showing of a reasonable probability of a different
outcome, relief still must be granted if the convicted person shows
13 that attorney errors rendered the trial fundamentally unfair.” Id. at
300.
¶ 32 The Court did not adopt this reading of Strickland but said
that, “[f]or the analytical purposes of this case,” it would “assume
that petitioner’s interpretation of Strickland is the correct one.” Id.
The Court then concluded that, because “not every public-trial
violation will in fact lead to a fundamentally unfair trial,” when a
defendant “raises a public-trial violation via an
ineffective-assistance-of-counsel claim, Strickland prejudice is not
shown automatically.” Id. at 300-01. Rather, “[t]he burden is on
the defendant to show either a reasonable probability of a different
outcome in his or her case or, as the Court has assumed for these
purposes, to show that the particular public-trial violation was so
serious as to render his or her trial fundamentally unfair.” Id. at
301 (citation omitted).
¶ 33 Richter argues that, under Weaver, “[a]n attorney’s deficient
performance is prejudicial when counsel’s errors rendered the trial
process fundamentally unfair — even if those errors did not have a
probable effect on the trial outcome.” Thus, Richter claims that
plea counsel’s deficient performance constituted structural error or
14 entitled him to a presumption of prejudice because Richter “was
encouraged to accept an offer based on a very limited and narrow
version of the facts” and “[c]ounsel’s actions and inactions resulted
in a fundamentally unfair process.”
¶ 34 Weaver is distinguishable for the following reasons:
• In that case, the Court expressly limited its holding to
public trial violations raised in ineffective assistance
claims. See id. at 299 (“The Court now turns to the
proper remedy for addressing the violation of a structural
right, and in particular the right to a public trial.”).
• As noted, the Court rejected the petitioner’s
interpretation of Strickland. See id. at 300-01 (“[W]hen a
defendant raises a public-trial violation via an
ineffective-assistance-of-counsel
claim, Strickland prejudice is not shown automatically.
Instead, the burden is on the defendant to show either a
reasonable probability of a different outcome in his or her
case” or “that the particular public-trial violation was so
serious as to render his or her trial fundamentally
unfair.”).
15 • Unlike the defendant in Weaver, Richter is not
challenging plea counsel’s failure to object to a structural
error but, instead, claims that plea counsel’s performance
itself resulted in structural error because it was so
deficient as to render the proceeding fundamentally
unfair.
Accordingly, Weaver does not support Richter’s assertion that the
ineffective assistance of counsel itself can constitute structural
error.
¶ 35 Not only does Richter’s argument premised on Weaver lack
merit, but we agree with the postconviction court that Richter’s bald
allegations were insufficient to establish that plea counsel’s
performance rendered the proceeding fundamentally unfair. See
People v. Romero, 2015 COA 7, ¶ 53, 411 P.3d 897, 906 (declining
to address an argument that the defendant presented in a
perfunctory and conclusory manner).
¶ 36 Third, we conclude that Richter failed to allege facts that, if
true, would establish a reasonable probability that, but for plea
counsel’s alleged deficiencies, the result of the proceeding would
have been different.
16 ¶ 37 In the motion, Richter argued that his counsel provided
deficient performance by failing to (1) sufficiently investigate the
case to discover witnesses whose testimony would have undermined
the victim’s credibility; (2) file pretrial motions to exclude certain
evidence; (3) investigate Richter’s theory that he had been
unknowingly drugged before the incident; (4) investigate how the
death of one of the responding officers impacted his case; (5)
adequately explain the plea deal to Richter; (6) explain the
consequences of waiving his Crim. P. 35(b) right to seek a sentence
reconsideration in light of the COVID-19 pandemic; and (7) retain
an expert to review the photographs of the victim’s injuries and
opine on the cause of her injuries.
¶ 38 In its order denying the motion, the postconviction court held
that Richter did not establish that any of these asserted errors
prejudiced him. Specifically, the court found that Richter failed to
explain (1) why the undiscovered credibility testimony would have
been admissible at trial or would have significantly undermined the
prosecution’s case, which included the inculpatory video and audio
recordings, photographs of the victim’s injuries and the damage to
the apartment, and Richter’s inculpatory statements; (2) the factual
17 or legal bases for filing a suppression motion and why a successful
suppression motion would have affected the outcome of the
proceeding; (3) why the death of the officer would have called into
question the warrants he authored, why a successful challenge to
the warrants would have affected the outcome of the proceeding, or
why the officer’s testimony was so unique that the loss of the
testimony would have affected a trial of the charges against Richter;
(4) how Richter had been inadequately advised of the plea
agreement before pleading guilty; (5) why it would have been
rational for him to reject a plea offer for a stipulated six-year prison
sentence and proceed to trial on multiple felony counts to maintain
his postconviction right to apply for a sentence reconsideration; and
(6) why a favorable expert opinion on the cause of the victim’s
injuries would have undermined the strength of the prosecution’s
case.
¶ 39 We agree with the postconviction court that Richter did not
present sufficient arguments that, if meritorious, would establish a
reasonable probability that, but for plea counsel’s deficient
performance, Richter would have rejected the plea offer and
proceeded to trial and that a decision to do so would have been
18 rational. See Romero, ¶ 53, 411 P.3d at 906; see also People v.
Corson, 2016 CO 33, ¶¶ 35, 42-43, 379 P.3d 288, 295, 297 (holding
that, “[i]n assessing whether a defendant would elect to plead guilty
or go to trial, we have considered the comparative sentencing
exposure between a proffered plea bargain and conviction after
trial,” and concluding that the defendant did not show a reasonable
probability that he would have rejected the plea offer and proceeded
to trial because the plea agreement provided substantial benefits to
him and he “faced a daunting downside risk at trial”); People v.
Sifuentes, 2017 COA 48M, ¶ 21, 410 P.3d 730, 736 (“Various
factors should inform a court’s analysis of whether a decision to
reject the guilty plea would have been rational,” including “the
attractiveness of the plea deal and the risks of going to trial.”).
¶ 40 Richter’s bald assertion of prejudice resulting from counsel’s
deficient performance is insufficient. See People v. Villanueva, 2016
COA 70, ¶ 68, 374 P.3d 535, 549 (A “conclusory allegation is
insufficient to establish prejudice under Strickland.”); see also
People v. Delgado, 2019 COA 55, ¶ 8, 442 P.3d 1021, 1024 (“[A]
court may deny [a Crim. P. 35(c)] motion without a hearing . . . if
the claims are bare and conclusory in nature and lack supporting
19 factual allegations.”); People v. Venzor, 121 P.3d 260, 262 (Colo.
App. 2005) (same). Further, we decline to address Richter’s
argument — asserted for the first time on appeal — that plea
counsel’s representation was deficient because plea counsel failed
to investigate his assertion that the victim carved her initials into
his chest. See People v. Goldman, 923 P.2d 374, 375 (Colo. App.
1996) (holding that allegations not raised in a Crim. P. 35(c) motion
and thus not ruled on by the postconviction court are not properly
before the Court of Appeals).
¶ 41 We note that the postconviction court did not address
Richter’s assertion that plea counsel was ineffective by failing to
investigate his theory that he had been unknowingly drugged before
the incident. But Richter failed to allege facts that, if true, would
establish what such an investigation would have revealed and why
the result of such an investigation would have altered the outcome
of the proceeding. See People v. Hartkemeyer, 843 P.2d 92, 92
(Colo. App. 1992) (holding that a trial court’s failure to make
findings of fact or conclusions of law in denying a Crim. P. 35(c)
motion does not require reversal if the error was harmless); see also
People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (rejecting the
20 defendant’s claim that counsel was ineffective for conducting an
inadequate investigation because he did “not explain[] what
additional investigation counsel should have done, what the results
of those efforts would have been, and how they would have affected
the outcome of the case”).
¶ 42 Finally, Richter argues that the postconviction court “erred by
analyzing each allegation separately” because “[t]he allegations,
seen as a whole, indicate that plea counsel’s representation was
entirely inadequate and therefore in violation of [his] constitutional
right to competent counsel.” But he presents no argument or
authority to support the proposition that the court should have
evaluated his claims collectively. See Romero, ¶ 53, 411 P.3d at
906. Indeed, Richter did not assert a cumulative error claim in the
motion. See Goldman, 923 P.2d at 375; see also People v. Smith,
2024 CO 3, ¶¶ 7-8, 19, 541 P.3d 1191, 1194-95.
IV. Disposition
¶ 43 The order is affirmed.
JUDGE JOHNSON and JUDGE MOULTIE concur.