Peo v. Robichaud

• Court: Colorado Court of Appeals
• Decided: May 8, 2025
• Docket: 23CA2222
• Status: Unpublished

Opinion

23CA2222 Peo v Robichaud 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2222 Arapahoe County District Court No. 19CR3620 Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Colton James Robichaud,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Atkinson Law, P.C., Alexander K. Atkinson, Colorado Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Colton James Robichaud, appeals the order

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

the appointment of counsel. He argues that his allegations of

ineffective assistance of counsel were sufficient to warrant the

appointment of postconviction counsel and that the pro se form for

filing Crim. P. 35(c) motions misled him to believe that he could not

include more than one page of factual allegations. We affirm.

I. Background

¶2 Robichaud was charged in district court with twenty-five

counts, including attempted first degree murder and first degree

assault, stemming from his involvement in a robbery and shooting

when he was sixteen years old. The public defender entered an

appearance as Robichaud’s counsel and moved to transfer the case

to juvenile court — a procedure known as a “reverse transfer.” See

People v. Brown, 2019 CO 50, ¶ 3; § 19-2.5-801(4)(a), C.R.S. 2024.

¶3 Several months later, before the reverse transfer hearing had

occurred, the public defender moved to withdraw based on a

conflict of interest. The district court granted the motion to

withdraw and appointed alternate defense counsel (ADC).

1 ¶4 With the reverse transfer hearing set less than a month later,

the prosecution and ADC filed a joint motion to continue the

hearing, which the district court granted. The reverse transfer

hearing was continued twice more at ADC’s request.

¶5 In April 2021, seventeen months after the motion to transfer

had been filed and a few days before the hearing was to be held,

Robichaud waived his right to a preliminary hearing and a reverse

transfer hearing. The court advised Robichaud as follows:

THE COURT: All right. Mr. Robichaud, I want to make sure that we understand each other:

So you have a right to have a preliminary hearing. At a preliminary hearing the District Attorney would have to show me that there’s probable cause to believe that you committed these offenses, at least the felony offenses.

You also have the right to request — and your lawyers have previously requested — a hearing where they’re asking me to transfer this case to the juvenile court rather than having it to stay in adult court.

It sounds like you are then agreeing to waive both of those hearings, or give up the right to have those hearings in this case, so that you can continue to negotiate in this case with the District Attorney; is that correct?

[ROBICHAUD]: Yes, sir.

2 THE COURT: All right. And is anybody forcing you or pressuring you or coercing you in any way to make those decisions and waive those hearings?

[ROBICHAUD]: No, Your Honor.

THE COURT: Are you waiving those hearings knowingly, voluntarily?

¶6 The court accepted Robichaud’s waivers, vacated the reverse

transfer hearing, and set the arraignment for eight weeks later.

ADC explained that he was working to develop mitigation, and

Robichaud was working to complete his high school diploma, both

of which they wanted to complete before entering into a disposition.

¶7 Eventually, Robichaud pleaded guilty to one count of

attempted first degree murder and one count of first degree assault,

in exchange for the dismissal of the remaining counts. In the plea

agreement, the parties stipulated to a sentence of eighteen to

twenty-five years in the custody of the Department of Corrections

(DOC), with the sentences on the two counts to run concurrently.

¶8 In December 2021, the district court sentenced Robichaud to

concurrent DOC sentences of twenty-two years for the attempted

first degree murder and fifteen years for the first degree assault.

3 ¶9 About two years later, Robichaud filed a pro se Crim. P. 35(c)

motion. He alleged that his attorneys’ advice to waive the reverse

transfer hearing was “bad, ineffective legal advice, not based on a

thorough investigation.” He further alleged that but for that advice,

he would not have waived his right to the reverse transfer hearing

and would have prevailed in having his case transferred to juvenile

court.1 He requested the appointment of postconviction counsel.

¶ 10 The district court denied Robichaud’s motion without

appointing counsel and without a hearing. It concluded that

Robichaud’s allegations were conclusory, “purely speculative,” and

“unsupported by the record.” In particular, the court noted that

Robichaud had made no allegations about “the nature of counsel’s

advice to waive the transfer hearing or the reasoning behind it” or

“what counsel failed to investigate.” The court also found that it

was “virtually inconceivable” on the facts of the case that

Robichaud would have been granted a reverse transfer.

1 Robichaud also asserted that the police report and reverse

transfer motion incorrectly stated his age at the time of his offenses. But he does not reassert that claim on appeal, so it is abandoned. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.

4 ¶ 11 Robichaud then filed a motion to reconsider or supplement his

motion, which included additional allegations to support his claim

that he would have prevailed in a reverse transfer hearing. Before

the court ruled on that motion, Robichaud appealed the denial of

his Crim. P. 35(c) motion. The day after the notice of appeal was

filed, the district court denied the motion to reconsider. Robichaud

did not amend his notice of appeal or otherwise appeal that order.

II. Analysis

¶ 12 Robichaud contends that the district court erred by denying

his Crim. P. 35(c) motion without appointing counsel. He asserts

that his allegations of ineffective assistance of counsel were

sufficient to warrant the appointment of postconviction counsel and

that any infirmities in the motion resulted from his pro se status

and his inability to afford private counsel. Because we agree with

the district court that the allegations in Robichaud’s Crim. P. 35(c)

motion were bare and conclusory, we affirm the denial.

A. Standard of Review and Applicable Law

¶ 13 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. See People v. Cali, 2020 CO 20, ¶ 14.

5 ¶ 14 A district court may deny a Crim. P. 35(c) motion without a

hearing and without appointing counsel if the motion, files, and

record in the case clearly establish that the allegations in the

defendant’s motion do not warrant postconviction relief. Ardolino v.

People, 69 P.3d 73, 77 (Colo. 2003); see also Crim. P. 35(c)(3)(IV).

This standard is satisfied if (1) the defendant’s allegations are bare

and conclusory; (2) the allegations, even if true, do not warrant

postconviction relief; or (3) the record directly refutes the

defendant’s claims. People v. Duran, 2015 COA 141, ¶ 9.

¶ 15 To state a claim for ineffective assistance of counsel, a

defendant must allege facts sufficient to show 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). Under the first prong of this test, the defendant must

identify acts or omissions of counsel that “fell below an objective

standard of reasonableness.” Strickland v. Washington, 466 U.S.

668, 687-88, 690 (1984). Under the second prong, the defendant

must “assert facts that, if true, show a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” People v. Timoshchuk, 2018 COA 153,

6 ¶ 22. A district court may deny an ineffective assistance claim

without a hearing if the defendant fails to allege facts sufficient to

satisfy either prong. See People v. Phipps, 2016 COA 190M, ¶ 19.

¶ 16 Because Robichaud filed his Crim. P. 35(c) motion pro se, we

broadly construe the motion “to ensure that [Robichaud is] not

denied review of important issues because of [his] inability to

articulate [his] argument like a lawyer.” Cali, ¶ 34 (citation

omitted). But in doing so, we may not rewrite Robichaud’s motion

or act as his advocate. Id. Even as a pro se party, Robichaud is

subject to the same rules, procedures, and substantive law that

apply to represented parties. People v. Gorman, 983 P.2d 92, 94

(Colo. App. 1998), aff’d on other grounds, 19 P.3d 662 (Colo. 2000).

B. Denial of Crim. P. 35(c) Motion

¶ 17 Robichaud’s allegation of deficient performance in his Crim. P.

35(c) motion consisted of a single sentence: His counsel’s advice to

waive the reverse transfer hearing was “bad, ineffective legal advice,

not based on a thorough investigation.” He did not describe the

nature of that advice, counsel’s reasons for it, or why the advice

was objectively unreasonable. Nor did he identify what additional

7 investigation his counsel should have done or how that

investigation would have affected his decision to waive the hearing.

¶ 18 These are the kind of bare and conclusory allegations that are

insufficient to demonstrate that a defendant may be entitled to

postconviction relief. See Phipps, ¶ 36; People v. Zuniga, 80 P.3d

965, 973 (Colo. App. 2003) (holding that allegations of inadequate

investigation were conclusory and insufficient to warrant a hearing

where defendant did not describe the additional investigation or its

anticipated results). Robichaud did not need to detail the

evidentiary support for the allegations in his motion. People v.

Delgado, 2019 COA 55, ¶ 33. But he did need to “allege specific

facts to substantiate his claims.” People v. Manners, 878 P.2d 71,

72 (Colo. App. 1994); see also People v. Esquivel-Alaniz, 985 P.2d

22, 25 (Colo. App. 1999) (holding that the district court was not

required to hold a hearing “[i]n the absence of particularized facts

supporting [the] defendant’s assertion of ineffective assistance” of

counsel). We agree with the district court that he failed to do so.

¶ 19 Robichaud asserts that the bar for appointment of counsel is

lower than the bar for an evidentiary hearing, requiring only that

the claim is not “wholly unfounded.” Silva v. People, 156 P.3d

8 1164, 1168 (Colo. 2007). Relying on People v. Chalchi-Sevilla, 2019

COA 75, he argues that the district court could not conclude that

his claims were wholly unfounded because they were based on facts

outside the record. But when a claim is based on facts outside the

record, the defendant must allege those facts in the Crim. P. 35(c)

motion. See Delgado, ¶ 8; Duran, ¶ 9. Absent such allegations, the

motion is “wholly unfounded” in the sense that it fails to state a

“potentially meritorious claim” for relief — even if the record does

not affirmatively refute it. People v. Nozolino, 2023 COA 39, ¶ 34;

see also People v. Lopez, 12 P.3d 869, 871 (Colo. App. 2000)

(holding that a claim of ineffective assistance of counsel may be

denied without appointing counsel if the allegations are conclusory).

¶ 20 We acknowledge that Robichaud included some additional

detail in his motion to reconsider. But we cannot consider the

substance of that motion for three reasons. First, because

Robichaud did not appeal the denial of that motion, it is not

properly before us. See People v. Robinson, 226 P.3d 1145, 1155

(Colo. App. 2009). Second, the district court lacked jurisdiction to

rule on the motion after the notice of appeal had been filed. See id.

And third, to the extent the motion to reconsider sought to provide

9 additional support for a claim that had already been denied, it was

effectively a successive motion for postconviction relief. See People

v. Thomas, 195 P.3d 1162, 1165 (Colo. App. 2008) (“[W]here . . . a

defendant’s motion to reconsider is essentially a successive motion

for postconviction relief, it should not be accepted as a motion for

relief from judgment pursuant to C.R.C.P. 60(b).”); see also Crim. P.

35(c)(3)(VI) (requiring a court to deny any claim that was raised and

resolved in a prior postconviction proceeding).

¶ 21 Robichaud contends that we should excuse his conclusory

allegations because to do otherwise would effectively penalize him

for his inability to afford private counsel. He argues that Form 4SC

— the pro se form for filing Crim. P. 35(c) motions — is a “trap” for

pro se petitioners because it directs the petitioner to include the

relevant facts on one page and does not specify the degree to which

those facts must be supported. And he asserts that, if he had

counsel, he would have been able to avoid summary denial.

¶ 22 As to Form 4SC, Robichaud makes a valid point, to an extent.

The form says that a petitioner must “state the facts related to your

claim on one page and put any legal authority on a separate page.”

Form 4SC, Petition for Postconviction Relief Pursuant to Crim. P.

10 35(c) (revised Jan. 2018), https://perma.cc/A26F-T3N8. This

direction could be interpreted (incorrectly) as limiting a petitioner’s

factual allegations to what they can fit on one page. But the form

also directs the petitioner to “list each and every fact you feel

supports that claim” and to “[b]e specific and give details.” Id. And

in any event, even as a pro se litigant, Robichaud was subject to the

well-established rule that a Crim. P. 35(c) claim must go beyond

conclusory allegations. See Gorman, 983 P.2d at 94; Duran, ¶ 9.2

¶ 23 As to Robichaud’s assertion that postconviction counsel might

have made a difference, a criminal defendant has no constitutional

right to postconviction counsel. Silva, 156 P.3d at 1167. And the

limited statutory right applies only when the defendant has

sufficiently alleged a claim with “arguable merit.” People v. Segura,

2024 CO 70, ¶ 25; see also Silva, 156 P.3d at 1168; §§ 21-1-103,

-104, C.R.S. 2024; Crim. P. 35(c)(3)(IV), (V). Thus, a defendant is

2 In his reply brief, Robichaud urges us for the first time to apply

the rule of lenity to resolve any ambiguities in Form 4SC in his favor. We do not address arguments raised for the first time in a reply brief. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990), abrogated on other grounds by Rojas v. People, 2022 CO 8. We note, however, that the controlling legal standard is governed by Crim. P. 35(c)(3)(IV) and longstanding case law, not Form 4SC.

11 not entitled to counsel to help them meet that standard. Instead,

an unrepresented defendant must overcome this threshold before

an attorney may be appointed. Segura, ¶ 4. Because Robichaud’s

allegations were bare and conclusory, he did not overcome the

threshold and had no right to counsel. See Lopez, 12 P.3d at 871.

¶ 24 Finally, as to prejudice, Robichaud asserts that the district

court erred by requiring him to prove he would have been granted a

reverse transfer rather than simply allege that “the result of the

proceeding would have been different.” Timoshchuk, ¶ 22. But the

only “different result” Robichaud identified in his motion was that

he would not have waived his right to a reverse transfer hearing and

would have prevailed in that hearing. He alleged no facts showing

why that was a reasonably probable result. See id. Regardless,

because we have concluded that Robichaud failed to sufficiently

allege deficient performance, we need not decide whether he also

failed to sufficiently allege prejudice. See Phipps, ¶ 19.3

3 To the extent Robichaud raises issues on appeal that he did not

raise in his Crim. P. 35(c) motion — for example, that he did not enter his plea knowingly, intelligently, and voluntarily — “we will not consider issues not raised before the district court in a motion for postconviction relief.” People v. Cali, 2020 CO 20, ¶ 34.

12 III. Disposition

¶ 25 The order is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.