Peo v. Rivera

• Court: Colorado Court of Appeals
• Decided: June 26, 2025
• Docket: 24CA0415
• Status: Unpublished

Opinion

24CA0415 Peo v Rivera 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0415 Jefferson County District Court No. 18CR1578 Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Orlando F. Rivera,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE WELLING Grove and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025

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

Orlando F. Rivera, Pro Se ¶1 Defendant, Orlando F. Rivera, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion for postconviction

relief. He contends that the court erred by denying the motion

without appointing counsel. We agree and, therefore, reverse the

order and remand the case for further proceedings.

I. Background

¶2 On the night in question, Rivera and the victim, who were

involved in an intimate relationship, had a verbal argument at

Rivera’s residence. At some point during the evening, Rivera

physically and sexually assaulted the victim. Rivera recorded the

sexual assault and told the victim that he would post the videos

online if she called the police. Once she was away from Rivera, the

victim went to the hospital, where it was determined that she had

sustained serious bodily injury due to a laceration of her liver.

¶3 The People charged Rivera with sexual assault, second degree

assault – restrict breathing, second degree assault – serious bodily

injury, criminal extortion, and false imprisonment. After a trial, the

jury acquitted him of the second degree assault – restrict breathing

count but otherwise convicted him as charged.

1 ¶4 The district court sentenced Rivera to an indeterminate term

of fifteen years to life in the custody of the Department of

Corrections (DOC) on the sexual assault charge; a consecutive term

of ten years in the DOC on the second degree assault – serious

bodily injury charge; a consecutive term of six years in the DOC on

the extortion charge; and a concurrent term of one year in jail on

the false imprisonment charge. The court also designated Rivera a

sexually violent predator (SVP).

¶5 A division of this court affirmed the judgment of conviction in

part but reversed the SVP designation. See People v. Rivera, (Colo.

App. No. 19CA1700, Mar. 24, 2022) (not published pursuant to

C.A.R. 35(e)). On remand, the prosecution conceded that Rivera

should not be designated an SVP, and the court issued an amended

mittimus to remove the designation.

¶6 Subsequently, Rivera filed a Crim. P. 35(c) motion, alleging

numerous ineffective assistance of counsel claims and requesting

the appointment of postconviction counsel and an evidentiary

hearing. While the majority of Rivera’s ineffective assistance claims

were conclusory, some of his claims were more developed. As

relevant here, one of Rivera’s developed claims alleged that trial

2 counsel failed to sufficiently advise him of his right to testify and

failed to adequately prepare for him to exercise that right. He

asserted that, but for these deficiencies, he would have testified and

the result of the trial would have been different.

¶7 In its order, the postconviction court denied the motion

without appointing counsel or holding an evidentiary hearing. The

court substantively addressed some of the claims, and it generally

denied the rest as bare and conclusory. On the claim regarding the

right to testify, the postconviction court determined that Rivera

wasn’t entitled to relief because the record showed that the district

court properly advised him pursuant to People v. Curtis, 681 P.2d

504 (Colo. 1984), and that therefore he validly waived his right to

testify.

II. Law Governing Crim. P. 35(c) Motions and Standard of Review

¶8 We review a postconviction court’s summary denial of a Crim.

P. 35(c) motion de novo. People v. Cali, 2020 CO 20, ¶ 14. Criminal

defendants don’t need to set forth evidentiary support for their

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).

3 ¶9 When reviewing a postconviction motion, a court must

consider, among other things,

whether it fails to state adequate factual or legal grounds for relief, whether it states legal grounds for relief that are not meritorious, whether it states factual grounds that, even if true, do not entitle the party to relief, and whether it states factual grounds that, if true, entitle the party to relief, but the files and records of the case show to the satisfaction of the court that the factual allegations are untrue.

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

¶ 10 If, based on a review of the motion, the files, and the record,

the court concludes that the defendant isn’t entitled to relief and,

therefore, none of the claims advanced has arguable merit, the

court must deny the motion in its entirety without a hearing and

without forwarding the motion to the prosecution or the Office of

the Public Defender (OPD). Crim. P. 35(c)(3)(IV); People v. Segura,

2024 CO 70, ¶¶ 4, 5 n.2, 7-8, 25-26, 35; Ardolino v. People, 69 P.3d

73, 77 (Colo. 2003). But, if the defendant has requested the

appointment of postconviction counsel and the court concludes that

at least one claim may entitle a defendant to relief and, thus, has

arguable merit, the court must grant the request for the

4 appointment of postconviction counsel and forward a complete copy

of the motion to the prosecution and the OPD. Crim. P. 35(c)(3)(IV);

Segura, ¶¶ 7-8, 25-26, 35.

III. Analysis

¶ 11 We conclude that Rivera’s Crim. P. 35(c) motion sufficiently

asserted at least one claim with arguable merit and that he was

therefore entitled to the appointment of counsel.

¶ 12 In his motion, Rivera alleged that trial counsel didn’t “discuss

with [him] his right to testify or the effect that his decision may

have on counsel strategy or preparation.” He acknowledged that

the district court provided him with a Curtis advisement but argued

that trial counsel “told [him] that if he testified, he would not be

able to appeal his conviction and[,] with him not understanding

what was taking place[,] he did not [testify].”

¶ 13 Rivera further claimed that he “told defense counsel mid-trial

that he wanted to testify” but that counsel told him he “‘was not

prepared’ for him to testify.” Rivera “understood this to mean that if

he chose to testify, it would adversely affect his trial overall.”

¶ 14 With regard to prejudice, Rivera asserted that, “[b]ut for

defense counsel’s incorrect advisement and lack of diligence in

5 preparing for the possibility of Mr. Rivera seeking to testify, Mr[.]

Rivera would have taken the stand in his own defense.” In support,

Rivera claimed that (1) “[t]here were no other eyewitnesses to the

events alleged by [the victim]”; (2) “[d]efense counsel . . . admitted

that [the victim] did not necessarily come across as a highly credible

witness”; and (3) the victim’s “testimony and versions of the events

for which Mr. Rivera was charged contained numerous

inconsistencies.” Moreover, he argued that, had he testified, the

jury “would have learned relevant and critical information that

defense counsel had no other way to present, including

explanations for some of [the victim’s] injuries, her motive(s) for

fabrication, and the presence of physical evidence, including highly

persuasive evidence, linking Mr. Rivera to [the victim].” Rivera thus

alleged that “[t]he prejudice that resulted from defense counsel’s

lack of diligent preparation and incorrect advisement was

substantial” and that, “[if] the jury had the opportunity to evaluate

Mr. Rivera’[s] testimony and compare it with that of [the victim’s],

there is a substantial probability that the outcome of the trial would

have been different.”

6 ¶ 15 In its order, the postconviction court found that the Curtis

advisement cured any deficiency in trial counsel’s deficient

performance regarding the right to testify and that the giving of an

adequate Curtis advisement conclusively demonstrated that Rivera

validly waived his right to testify.

¶ 16 Criminal defendants have a constitutional right to testify in

their own defense. Curtis, 681 P.2d at 509. A defendant may waive

this fundamental right only if the decision to do so is knowing,

voluntary, and intelligent. Moore v. People, 2014 CO 8, ¶ 10. In

order to safeguard the knowing, voluntary, and intelligent nature of

a defendant’s understanding of the right to testify when deciding

whether or not to testify, a district court should give the defendant

an advisement as set forth in Curtis. Id. at ¶¶ 10, 19.

¶ 17 One purpose of a Curtis advisement is to avoid ineffective

assistance of counsel claims involving a defendant’s decision on

whether or not to testify. See Curtis, 681 P.2d at 515 (“The

purposes of advisement by the court on the record are to ensure

that waiver of a fundamental constitutional right is intelligent and

knowing, to preclude postconviction disputes between [the]

defendant and counsel over the issue . . . .”); see also People v.

7 Gray, 920 P.2d 787, 793 (Colo. 1996) (A valid Curtis advisement

facilitates appellate review by creating a record of a waiver of the

right to testify; “[w]ithout a Curtis requirement, waiver issues would

merge into ineffective assistance of counsel claims.”); cf. People v.

Naranjo, 840 P.2d 319, 323-25 (Colo. 1992) (pre-Curtis violations of

the right to testify can be raised in ineffective assistance of counsel

claims).

¶ 18 But an adequate Curtis advisement isn’t dispositive of whether

a defendant’s waiver of their right to testify was knowing, voluntary,

and intelligent. Moore, ¶¶ 19, 22, 24, 26-27. Indeed,

notwithstanding the giving of a Curtis advisement, a defendant can

challenge the validity of their waiver of the right to testify, and they

must do so in a postconviction motion (and not on direct appeal).

See id. at ¶¶ 3, 8, 10-11, 16, 22, 27; People v. Blehm, 983 P.2d 779,

782, 785, 787-88, 792 (Colo. 1999); Curtis, 681 P.2d at 516. The

reason for asserting this claim in a postconviction proceeding,

rather than on direct appeal, is because “a defendant’s challenge to

the knowing, voluntary, and intelligent waiver of the right to testify

likely will require a post-conviction court to look beyond the trial

court’s advisement into facts that the defendant brings forward that

8 are not contained in the direct appeal record.” Moore, ¶ 17. In their

postconviction motion, “the defendant . . . must allege specific facts

that if proved at the hearing establish a prima facie case that the

waiver of the right to testify was not knowing, voluntary, and

intelligent.” Id. at ¶ 23.

¶ 19 Broadly construing Rivera’s pro se postconviction motion, see

Cali, ¶ 34, he is substantively asserting a challenge to the validity of

his waiver of the right to testify. And, taking as true Rivera’s

allegations regarding his off-the-record discussions with counsel,

we perceive arguable merit in the claim. See Moore, ¶¶ 17, 27-28;

see also People v. Davis, 2018 COA 113, ¶¶ 5-6, 44 (The defendant

was appointed counsel and granted a postconviction evidentiary

hearing on his assertion “in his Crim. P. 35(c) motion that he would

present evidence demonstrating that he had wanted to testify at

trial but was prevented from doing so.”). The postconviction court’s

finding that Rivera received an adequate Curtis advisement does not

automatically resolve his challenge to the validity of his waiver of

the right to testify. See Moore, ¶¶ 19, 22, 24, 26-27.

¶ 20 Accordingly, we reverse the postconviction court’s order and

remand the case for the court to forward a complete copy of the

9 motion to the OPD. We need not decide whether any of Rivera’s

other claims have arguable merit or whether Rivera is entitled to a

hearing. See Segura, ¶ 26 n.8.

IV. Disposition

¶ 21 The order is reversed, and the case is remanded for further

proceedings.

JUDGE GROVE and JUDGE JOHNSON concur.