23CA0021 Peo v Sanders 06-12-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0021 Jefferson County District Court No. 11CR219 Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Victor Everitt Sanders,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE YUN Tow and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Victor Everitt Sanders appeals the postconviction court’s order
denying his Crim. P. 35(c) motion following an evidentiary hearing.
He contends the postconviction court erred by failing (1) to find that
his counsel provided ineffective assistance in connection with plea
negotiations; (2) to consider evidence of his counsel’s suspension
and disbarment; and (3) to reopen the evidence to hear testimony
about his counsel’s statements. We reject these contentions and
affirm the order.
I. Procedural Background
¶2 In 2011, Lakewood Police Department officers arrested K.M., a
juvenile, following an undercover prostitution sting operation. K.M.
identified Sanders as her pimp, and the People charged him with
trafficking in children, pandering of a child, pimping of a child,
procurement of a child, and contributing to the delinquency of a
minor. The charges were later amended to also include one count
of sexual assault and four crime of violence sentence enhancers.
¶3 Sanders was initially represented by attorney Katherine
Spengler from the public defender’s office. Following her initial
appointment, Spengler discussed the charges with Sanders and
advised him of the potential penalties he could face if convicted.
1 ¶4 In March 2011, the prosecution offered Sanders a plea deal in
which he would plead guilty to pimping of a child and contributing
to the delinquency of a minor with no sentencing concessions, and
in return, the prosecution would drop the remaining charges.
Spengler communicated the offer to Sanders, but they did not
discuss it in detail because he had decided to hire private counsel.
The prosecution indicated that the offer would remain open until
mid-September 2011.
¶5 In April 2011, Sanders hired attorney Nitche Ward to
represent him.1 Ward represented Sanders until she withdrew from
his case near the end of October 2011. During Ward’s
representation, Sanders did not respond to the plea offer, and it
expired. After Ward withdrew, Spengler was reappointed to
represent Sanders.
¶6 At trial, the jury acquitted Sanders of the sexual assault
charge and deadlocked on the trafficking in children charge;2
however, the jury found him guilty on the remaining charges,
1 Another attorney, Richard Fiore, assisted Ward in representing
Sanders. However, Fiore’s representation of Sanders is not relevant to this appeal. 2 The prosecution later dismissed the trafficking in children charge.
2 including two of the four sentence enhancers. Sanders received an
aggregate sentence of thirty-four years in prison, and a division of
this court affirmed his conviction on direct appeal. People v.
Sanders, slip op. at 21 (Colo. App. No. 12CA2343, May 5, 2016) (not
published pursuant to C.A.R. 35(e)).
¶7 In 2015, while Sanders’s direct appeal was pending, Ward’s
law license was suspended because of her “fail[ure] to competently
and diligently represent many of her clients” between 2010 and
2013. This suspension was due, in part, to her failures to file
documents, to appear for hearings, to pursue and review discovery,
and to provide effective assistance of counsel to a criminal
defendant. In 2017, Ward was ultimately disbarred because of her
conduct in representing two bankruptcy clients.3
¶8 In 2018, Sanders filed a pro se Crim. P. 35(c) motion, claiming
ineffective assistance of counsel on multiple grounds. The
postconviction court denied his motion without a hearing. Sanders
3 Specifically, Ward was disbarred for failing to notify her clients of
her suspension, failing to communicate with clients, making misrepresentations to her clients and the bankruptcy trustees, violating fee-related rules, failing to appear at hearings, canceling creditors’ meetings, violating court orders to disgorge her fees, and obstructing the disciplinary proceedings.
3 appealed, and a division of this court reversed in part, concluding
he was entitled to a hearing on his ineffective assistance of plea
counsel claim. People v. Sanders, slip op. at ¶ 44 (Colo. App. No.
18CA2365, July 30, 2020) (not published pursuant to C.A.R. 35(e)).
But the division affirmed the postconviction court’s order regarding
his remaining claims. Id. at ¶¶ 13-24.
II. Crim P. 35(c) Hearing
¶9 On remand, Sanders filed a supplemental Crim. P. 35(c)
motion, alleging that Ward provided ineffective assistance in
connection with the plea offer. The same judge presided over
Sanders’s case from its inception through the postconviction
proceedings. As relevant here, the postconviction court considered
Ward’s disciplinary records and heard testimony from Spengler,
Sanders, and a defense expert. However, it did not hear testimony
from Ward.4
4 Neither Sanders’s postconviction counsel nor his hired
investigator were able to thoroughly interview Ward before the hearing.
4 A. Ward’s Disciplinary Records
¶ 10 At the hearing, Sanders argued that the court should consider
Ward’s disciplinary history as evidence of a pattern of misconduct
that included the time period when she represented him. In
response, the prosecution argued that the disciplinary actions were
irrelevant and constituted improper character evidence because the
misconduct Ward was sanctioned for was not connected to
Sanders’s case. The court noted its concern that the disciplinary
records appeared to be character evidence; however, the court
allowed its admission, stating that it would “look at it and give it the
weight it’s entitled to. I’m just foreshadowing that may not be
much.”
B. Spengler’s Testimony
¶ 11 Spengler testified that she discussed the strength of Sanders’s
case with him, explaining that she believed there were weaknesses
in the prosecution’s case due to K.M.’s other cases and credibility
issues. Spengler also recalled that Sanders asked about the plea
offer once she was reappointed; however, after she informed him
that the offer had expired, Sanders responded that he would not
have taken a plea anyway.
5 C. Sanders’s Testimony
¶ 12 Sanders testified that he hired Ward because he believed
private counsel would represent him better than a public defender.
He said that he never intended to go to trial and that he hired Ward
specifically to negotiate a better plea deal. Based on his
conversations with Ward, Sanders believed that if he took his case
to trial, he would face a potential prison sentence similar to the
existing plea offer. He also testified that Ward advised him that the
prosecution’s case was weak due to the “he said, she said” nature of
the evidence.
¶ 13 On cross-examination, Sanders told the court that, after
Spengler was reappointed to his case, he asked about the status of
the plea deal out of curiosity. Despite this inquiry, Sanders
admitted that he had no interest in accepting a plea deal at that
time.
¶ 14 At several points in the hearing, the court sustained the
prosecution’s objections to Sanders’s testimony about Ward’s
alleged statements but permitted him to testify about his
understanding of the plea offer, the strength of his case, and the
sentencing exposure.
6 D. Defense Expert’s Testimony
¶ 15 Randy Canney, an expert qualified in ineffective assistance of
counsel, opined that Ward provided ineffective assistance when she
advised Sanders regarding the weaknesses in the prosecution’s case
and Sanders’s potential sentencing exposure. He testified that he
believed that the prosecution’s case against Sanders was “relatively
strong” and that Ward’s explanation of his sentencing exposure
“would have been bad advice.”
E. Postconviction Court’s Ruling
¶ 16 The court ordered the parties to submit written closing
arguments and allowed them to present additional argument
concerning the hearsay issue and the admissibility of Ward’s
alleged statements to Sanders.
¶ 17 In its written order, the court reconsidered its prior ruling that
prohibited witnesses from testifying about Ward’s specific
statements and decided to admit evidence of Ward’s advice to
Sanders. However, the court declined to reopen the hearing, stating
that additional testimony would not be “helpful” since the court was
aware of the advice that Ward allegedly gave Sanders.
7 ¶ 18 Considering the first prong under Strickland v. Washington,
466 U.S. 668 (1984), the court found that Sanders failed to show
that Ward’s representation fell below an objectively reasonable
standard. While the court noted that Ward’s advice — that Sanders
may not face much more time by taking his case to trial — “if true,
[was] problematic,” the court found that Sanders’s testimony
regarding Ward’s advice was not credible for three reasons.
¶ 19 First, the court noted that Sanders provided no evidence
outside of his testimony to corroborate Ward’s alleged advice, such
as notes, statements from his attorneys, or conversations with
family members regarding the advice he received.
¶ 20 Second, the court concluded that Ward’s alleged advice was
clearly an opinion. The court noted that Spengler testified that she
fully advised Sanders “regarding the charges and the possible
sentences applicable to those charges” and that it was “not
reasonable or plausible to suggest [that] the risk of going to trial
would not be more than the [eighteen] years offered in the plea
deal.”
¶ 21 Third, the court found that Sanders’s own assessment of his
case led him to believe that he would not face significant risk by
8 proceeding to trial because he had reviewed the charging
documents himself and concluded that the prosecution’s case was
not strong on the more severe charges (sexual assault and
pandering) and that he only faced potential conviction on the lesser
charges (pimping and contributing to the delinquency of a minor).
¶ 22 The court also concluded that Sanders failed to establish
prejudice under Strickland. Again, the court found that Sanders
did not provide any objective corroborating evidence to show that he
would have accepted the plea deal but for Ward’s alleged advice.
And the court noted that Sanders told Spengler he would not have
taken a plea deal anyway.
¶ 23 Lastly, the court addressed Ward’s disciplinary records. The
court concluded that the records were propensity evidence and had
“no bearing on [Ward’s] representation of [Sanders] for this 35(c).”
III. Analysis
¶ 24 Sanders contends that the postconviction court erred by
denying his Crim. P. 35(c) motion because Ward provided ineffective
assistance by misadvising him about the strength of his case and
the potential sentencing exposure if he went to trial. He also
contends that the court failed to consider evidence of Ward’s
9 suspension and disbarment, that the court failed to reopen the
evidence to hear testimony about Ward’s statements, and that Ward
failed to obtain discovery before the deadline to accept the plea
offer. We address these contentions in turn.
A. Governing Law and Standard of Review
¶ 25 A criminal defendant is constitutionally entitled to effective
assistance from his counsel. Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). This right to effective assistance of counsel extends to
the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162
(2012).
¶ 26 To establish a claim of ineffective assistance, a defendant must
show that (1) counsel’s performance was deficient and (2) counsel’s
deficient performance prejudiced him. Strickland, 466 U.S. at 687;
Ardolino, 69 P.3d at 76. It is the defendant’s burden to establish
both Strickland prongs, People v. Corson, 2016 CO 33, ¶ 34, and
failing to prove either of these two prongs defeats an ineffective
assistance claim, People v. Thompson, 2020 COA 117, ¶ 50.
¶ 27 To establish deficient performance, a defendant must prove
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687-88. “[J]udicial
10 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.
¶ 28 An attorney’s performance is deficient if she fails to present
her client with the opportunity to make a reasonably informed
decision about whether to accept a plea offer. Carmichael v. People,
206 P.3d 800, 806 (Colo. 2009), overruled on other grounds as
recognized by People v. Delgado, 2019 COA 55. “Failure to correctly
advise a defendant about his sentencing exposure deprives the
defendant of the opportunity to make a reasonably informed
decision whether to accept or reject an offer and constitutes
deficient performance under Strickland.” Delgado, ¶ 17.
¶ 29 To establish prejudice in the context of a rejected plea offer, a
defendant must show a reasonable probability that (1) he would
have accepted the plea offer if counsel had correctly advised him;
(2) the prosecution would not have withdrawn the offer, and the
court would have accepted the agreement; and (3) the conviction,
sentence, or both under the plea offer’s terms would have been less
11 severe than those imposed by the judgment and sentence. People v.
Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Lafler, 566 U.S. at 162).
¶ 30 In reviewing the denial of a Crim. P. 35(c) motion after a
hearing, we review the postconviction court’s conclusions of law de
novo but defer to its findings of fact if they are supported by the
evidence. People v. Villanueva, 2016 COA 70, ¶ 28. “The weight
and credibility to be given the testimony of witnesses in a Crim. P.
35(c) hearing is within the province of the [postconviction] court and
when there is sufficient evidence in the record to support the
court’s findings, its ruling will not be disturbed on review.”
People v. Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).
B. Deficient Performance
¶ 31 Sanders asserts that the postconviction court erred by
concluding that he failed to establish deficient performance. We
disagree.
¶ 32 First, record evidence supports the postconviction court’s
finding that Ward’s assessment of the weaknesses in the
prosecution’s case constituted “a professional judgment well within
the range of reasonable representation.” At the hearing, Spengler
explained that she believed the prosecution’s case was weak due to
12 significant credibility issues with K.M., who had motive to blame
Sanders to avoid her own legal troubles. And despite the defense
expert’s belief that Ward’s performance was deficient, even he
concluded that the prosecution’s case against Sanders “wasn’t
ironclad.” Indeed, the jury acquitted Sanders of one charge and
was deadlocked on another charge, indicating that even the jury
found some aspects of the prosecution’s case lacking.
¶ 33 Like Ward, both Sanders and Spengler reasonably believed
that there were significant weaknesses in the prosecution’s case.
This assessment is not rendered erroneous merely because Sanders
was convicted at trial. See People v. Gandiaga, 70 P.3d 523, 525
(Colo. App. 2002) (“The constitutional right to effective assistance of
counsel ‘is not a guarantee against mistakes of strategy or exercise
of judgment in the course of a trial as viewed through the 20-20
vision of hindsight following the return of a verdict in a criminal
case.’” (quoting Dolan v. People, 449 P.2d 828, 830 (Colo. 1969))).
¶ 34 Nor are we persuaded by Sanders’s assertion that Ward
provided him with objectively deficient advice concerning his
sentencing exposure if he rejected the plea offer and went to trial.
While the postconviction court acknowledged that Ward’s alleged
13 advice, if true, was “problematic,” it found that Sanders’s testimony
was not credible.
¶ 35 Importantly, the postconviction court noted that Sanders’s
testimony was not corroborated or supported by any other evidence.
Indeed, the court found a complete absence of objective evidence —
such as a file note, discussions with family about the advice, or a
conversation with Spengler — to suggest that Ward actually
provided the alleged advice.
¶ 36 The record also supports the postconviction court’s conclusion
that Sanders was aware of his sentencing exposure. Spengler
testified that she fully advised Sanders of the charges and the
possible sentences associated with each charge when she was
initially appointed. Likewise, Sanders acknowledged Spengler
discussed the charges with him before he hired private counsel.
Thus, Sanders was — at a minimum — aware of the potential
penalties he might face if convicted.
¶ 37 Furthermore, Sanders testified that he reviewed both the
charging documents and the discovery materials, which led him to
believe that the prosecution’s case concerning the more serious
charges was weak. Sanders explained that he thought he would
14 only face potential conviction on the charges of pimping and
contributing to the delinquency of a minor. While Sanders testified
that his beliefs were based — at least in part — on his
conversations with Ward, the postconviction court was not
persuaded by his recollection, and the court was not bound to
accept his description of events as true. See Williams, 908 P.2d at
1161 (the weight and credibility given to a witness’s testimony in a
Crim. P. 35(c) hearing is within the postconviction court’s
discretion). Indeed, based on his testimony, the postconviction
court deemed Sanders’s version of events as incredible. We will not
reconsider the postconviction court’s credibility determinations on
appeal. See People v. Harlan, 109 P.3d 616, 627-28 (Colo. 2005)
(“[W]e cannot second-guess the determinations of the trial court
regarding witness credibility.”).
¶ 38 Accordingly, we conclude that the postconviction court did not
err by finding that Sanders failed to establish the deficient
performance prong under Strickland.
C. Prejudice
¶ 39 Sanders also contends that the postconviction court erred by
concluding that he failed to establish prejudice. Again, we disagree.
15 ¶ 40 The record supports the postconviction court’s conclusion. To
establish prejudice in the context of a declined plea, a defendant
must demonstrate, as relevant here, a reasonable probability that
he would have accepted the plea offer had he been properly advised.
Delgado, ¶ 21.
¶ 41 “[A] defendant’s post-conviction testimony that he would have
accepted the plea offer is, in and of itself, insufficient to establish
prejudice.” Carmichael, 206 P.3d at 807-08; see also People v.
Sifuentes, 2017 COA 48M, ¶ 20 (“Some objective evidence must
corroborate the defendant’s testimony that he would have made a
different decision about the plea if he had been properly advised.”).
In support of his claim that he would have accepted the plea offer if
not for Ward’s advice, Sanders offered only his testimony. But the
postconviction court did not believe his statements. See Williams,
908 P.2d at 1161. Indeed, Sanders himself explained that he
thought the prosecution’s case was weak and that he believed he
only faced conviction on the less severe charges against him. And,
rather than offering evidence of his continued desire to pursue a
plea deal, Sanders said that he only asked Spengler about the plea
offer in the days before the trial because he was “curious.”
16 Moreover, Spengler testified that during her pretrial discussion with
Sanders, he expressed his unwillingness to accept any plea deal.
¶ 42 Sanders did not present any “objectively corroborating
evidence” showing a reasonable probability that he would have
accepted the plea offer; thus, he failed to prove prejudice. Cf.
Carmichael, 206 P.3d at 807-08 (noting that objective evidence,
such as supporting testimony from counsel, showing that the
defendant was pursuing a plea deal satisfied this standard).
¶ 43 Consequently, we conclude that the postconviction did not err
by finding that Sanders also failed to establish the prejudice prong
of Strickland.
D. Sanders’s Other Contentions
¶ 44 Sanders raises three additional assertions of error that he
claims undermined the postconviction court’s ineffective assistance
of counsel analysis. We address and reject each contention in turn.
¶ 45 First, Sanders argues that the postconviction court erred by
“declin[ing] to consider . . . Ward’s suspension and disbarment as
part of its ineffective assistance of counsel analysis.” The record,
however, contradicts his assertion. At the postconviction hearing,
the court permitted Sanders to offer Ward’s disciplinary records as
17 evidence to support his claim. Moreover, the postconviction court
explicitly stated that it would “look at [Ward’s disciplinary history]
and give it the weight [it was] entitled to.” Thus, it appears that
Sanders is actually taking issue with the weight the postconviction
court assigned Ward’s disciplinary records. That, however, is a
determination left to the sound discretion of the postconviction
court. See Williams, 908 P.2d at 1161. Indeed, the postconviction
court examined Ward’s disciplinary records and found them to be of
limited value because they were largely propensity and character
evidence unrelated to Sanders’s case. Because the court considered
the disciplinary records, we identify no error.
¶ 46 To the extent Sanders argues that the court committed legal
error by not applying the factors from People v. Kenny, 30 P.3d 734,
744 (Colo. App. 2000), overruled on other grounds by West v. People,
2015 CO 5, to determine whether Ward was “incompetent as a
matter of law,” we disagree. Kenny applies only when the
defendant’s counsel was “less than fully licensed” while
representing the defendant and presents a “totally separate” inquiry
from the traditional Strickland analysis. Id. at 743-44. Ward’s law
18 license was first suspended in 2015, well after her representation of
Sanders ended in October 2011. Kenny therefore does not apply.
¶ 47 Second, Sanders argues that the postconviction court erred by
refusing to reopen the hearing to admit additional evidence of the
contents of Ward’s statements. Again, we discern no error.
¶ 48 We review a court’s ruling on a request to introduce evidence
after closing for an abuse of discretion. People v. Waters, 641 P.2d
292, 294 (Colo. App. 1981). The postconviction court determined
that further testimony about Ward’s statements would not be
beneficial because the court was already aware of Sanders’s
contentions. Specifically, the court said it was aware that Ward
allegedly advised him that the prosecution’s case was weak and
that he would not face much more prison time if he rejected the
plea offer and went to trial.
¶ 49 The postconviction court’s determination is supported by the
record because, as noted above, Sanders testified about his
understanding of Ward’s advice. Thus, the postconviction court did
not abuse its discretion by declining to reopen the evidence. See
People v. Wilson, 2014 COA 114, ¶ 35 (“[D]iscretion is abused only
where no reasonable person would take the view adopted by the
19 trial court. If reasonable persons could differ as to the propriety of
the action taken by the trial court, then it cannot be said that the
trial court abused its discretion.” (quoting People v. Hoover, 165
P.3d 784, 802 (Colo. App. 2006))); People v. Rhea, 2014 COA 60,
¶ 58 (“[U]nder the abuse of discretion standard, the test is not
‘whether we would have reached a different result but, rather,
whether the trial court’s decision fell within a range of reasonable
options.’” (quoting People v. Salazar, 2012 CO 20, ¶ 32 (Bender,
C.J., dissenting))).
¶ 50 Third, Sanders argues that Ward provided ineffective
assistance because she failed to obtain and review discovery before
the deadline to accept the plea. However, we decline to address his
assertion because he did not preserve this claim. See People v.
Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not
raised in a Crim. P. 35(c) motion or during the hearing on that
motion and thus not ruled on by the trial court are not properly
before this court for review.”).
¶ 51 Sanders did not raise concerns about Ward’s alleged failure to
pursue discovery as it related to the plea deal in his pro se
postconviction motion, in his supplemental postconviction motion,
20 during the hearing, or in his written closing to the court. Arguing
that the discovery issue is properly before this court, Sanders
points to his original pro se postconviction motion, noting that he
raised “the fact that Ms. Ward had not conducted any investigation
or done any significant pretrial work” as part of his initial claim. He
also states that he raised specific examples of how Ward’s failure to
access discovery led to her deficient representation.
¶ 52 But Sanders raised these alleged discovery issues as part of
his original postconviction claim that both Ward and Spengler had
failed to properly investigate his case. This claim was considered —
and rejected — by a division of this court as part of Sanders’s first
postconviction appeal. Sanders, No. 18CA2365, slip op. at ¶¶ 13-
24. At best, Sanders attempts to repackage his prior discovery
allegations as part of his new claim. See Leske v. Golder, 124 P.3d
863, 865 (Colo. App. 2005) (“A defendant is prohibited from using a
proceeding under Crim. P. 35(c) to relitigate issues fully and finally
resolved in an earlier appeal.”).
¶ 53 As a result, the claim is not properly before us, and we will not
consider it on appeal.
21 IV. Disposition
¶ 54 The order is affirmed.
JUDGE TOW and JUDGE SULLIVAN concur.