Peo v. Sanders

Opinion

23CA0687 Peo v Sanders 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0687 Jefferson County District Court No. 15CR3432 Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Miguel David Sanders, Jr.,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE JOHNSON Welling and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 11, 2025

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

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Miguel David Sanders, Jr. (Sanders), appeals the

district court’s order denying his Crim. P. 35(c) motion without a

hearing. We reverse the order and remand for further proceedings.

I. Background

¶2 Sanders was charged with sixty-nine counts, including two

counts each of attempted first degree murder and first degree

assault; multiple counts of second degree kidnapping, aggravated

robbery, and aggravated motor vehicle theft; and multiple crime of

violence sentence enhancers. The charges were based on

allegations that Sanders and two other men robbed a bank,

burglarized a home, and assaulted multiple people, shooting at two

of them. Sanders’ codefendants were also charged, and all three

cases were joined for trial over the defendants’ objections.

¶3 At trial, the prosecution advanced a complicity theory and

relied heavily on DNA evidence in the presentation of its case.

Unlike his codefendants, who successfully fled the scene, Sanders

was found hiding under a bus with incriminating evidence nearby,

and did not deny his involvement in the charged crimes. Rather,

his lawyers argued at trial that he was overcharged; that he had a

“much smaller role” than his codefendants; and that he lacked the

1 requisite knowledge and intent to be complicit in some of the

offenses.

¶4 The jury acquitted Sanders of one of the attempted first degree

murder counts but convicted him of the other attempted first degree

murder count as well as several other substantive counts and crime

of violence sentence enhancers. The district court sentenced him to

over 350 years in the custody of the Department of Corrections. A

division of this court affirmed the judgment of conviction. See

People v. Sanders, (Colo. App. No. 17CA0142, June 17, 2021) (not

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

¶5 Sanders filed a timely pro se motion for postconviction relief

pursuant to Crim. P. 35(c). In the motion, he requested that the

court appoint him counsel and raised three claims related to his

trial counsel’s performance — that counsel allegedly failed to (1)

retain a DNA expert; (2) prepare and properly argue in favor of

severance at the motions hearing; and (3) argue that certain

statutory changes should have applied to his sentence.

¶6 The district court did not appoint an attorney to represent

Sanders and denied his motion without a hearing.

¶7 Sanders now appeals.

2 II. Standard of Review and Applicable Law

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

without a hearing. People v. Marquez, 2020 COA 170M, ¶ 17.

¶9 The district court is required to promptly deny a

postconviction motion if none of the claims advanced have arguable

merit. Crim. P. 35(c)(3)(IV); People v. Segura, 2024 CO 70, ¶ 25. A

claim lacks arguable merit when the motion, files, and the record in

the case clearly establish any of the following: that the claim (1) is

barred as untimely or successive; (2) does not state adequate

factual or legal grounds for relief; (3) states unmeritorious legal

grounds for relief; or (4) states factual grounds that do not merit

relief, even if true, or are directly refuted by the record. See Crim.

P. 35(c)(3)(IV), (VI)-(VII); Segura, ¶ 25 n.6.

¶ 10 But when a pro se defendant requests postconviction counsel

and his Crim. P. 35(c) motion raises at least one claim with

arguable merit, the district court must grant the request for

counsel. Segura, ¶ 26. At this stage of the proceedings — before

any arguably meritorious claims have been briefed by defense

counsel and the prosecution — the court need not decide whether

an evidentiary hearing is necessary. Id. at ¶ 26 n.8; see Crim. P.

3 35(c)(3)(V). Rather, the court need only determine whether the “pro

se Crim. P. 35(c) motion is wholly unfounded (i.e., that all of the

claims in the motion lack arguable merit).” Segura, ¶ 35.

¶ 11 To sufficiently state a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984), a defendant

must (1) “identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment”

(the deficient performance prong), id. at 690; and (2) “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” (the prejudice prong), People v. Timoshchuk, 2018 COA

153, ¶ 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;

People v. Osorio, 170 P.3d 796, 800 (Colo. App. 2007).

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

must construe it broadly. See Jones v. Williams, 2019 CO 61, ¶ 5

(“Pleadings by pro se litigants must be broadly construed to ensure

that they are not denied review of important issues because of their

inability to articulate their argument like a lawyer.”). But in doing

4 so, we may not rewrite Sanders’ motion or act as his advocate. See

People v. Cali, 2020 CO 20, ¶ 34.

III. Analysis

¶ 13 Sanders contends that the district court erred by denying his

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

counsel. In particular, he argues that his claim that his attorneys

were ineffective in failing to retain a DNA expert was sufficient to

warrant the appointment of postconviction counsel. We agree with

Sanders that he is entitled to appointment of counsel on this claim.

We therefore do not address the merits of the remaining claims and,

instead, reverse the court’s order and remand the case for the court

to proceed as directed by Crim. P. 35(c)(3)(V). See People v. Chalchi-

Sevilla, 2019 COA 75, ¶¶ 23-26 (concluding that when an appellate

court reverses a district court’s summary denial of a postconviction

motion the appropriate procedure is to remand with directions “to

put the train back on the tracks at the point it derailed”).

¶ 14 Specifically, Sanders asserts that, by failing to consult with a

DNA expert, his counsel was unable to adequately challenge the

prosecution’s expert testimony about DNA evidence at trial; and if

counsel had been prepared to challenge the DNA evidence

5 presented, he would have been acquitted of several charges, “if not

the entire case.”

¶ 15 In support of his claim, Sanders referenced the multiple items

of DNA evidence that were introduced at trial and asserted that the

DNA evidence “was crucial” to the prosecution’s case. He called

into question the reliability of some of the testimony provided by the

prosecution’s DNA expert, and asserted that, had his attorney

contested the DNA evidence at trial, it would “have had a huge

impact” because “the DNA evidence was the only real evidence the

prosecution had that tied [him] to any of the charges.” He pointed

out that no eyewitnesses were able to identify him at trial and,

lacking “any positive identification of [him] by witnesses to the

robbery and [the] subsequent flight, . . . the DNA evidence was the

only link between [him] and those crimes.” Sanders also asserted

that trial counsel told him that “she would love to have a DNA

expert” but “there were no funds to pay for [one].” And Sanders

asserted that, given the “nature and complexity of the evidence and

the seriousness of the case,” it was “simply unreasonable” for

counsel not to seek a DNA expert to consult with and offer “rebuttal

opinions” at trial.

6 ¶ 16 We perceive nothing in the record that refutes Sanders’ factual

allegations. No eyewitnesses positively identified Sanders or his

codefendants at trial. Instead, the prosecution relied heavily on

DNA evidence to identify the defendants as the perpetrators — the

prosecution’s DNA expert testified on four separate days about

which items matched Sanders’, the codefendants’, or the victims’

DNA. Given the enormous role that DNA evidence can have in

criminal trials, and did have in Sanders’ trial, we agree with

Sanders that his allegations, if proved, would show that counsel’s

failure to, at a minimum, consult with a DNA expert based on a

purported lack of state funding could amount to deficient

performance. See People v. Marks, 2015 COA 173, ¶ 41 (“[J]urors

place great emphasis on DNA evidence — so much so that the

evidence has long enjoyed a status of ‘mythic infallibility’ for juries.”

(quoting Virgin Islands v. Byers, 941 F. Supp. 513, 526 (D.V.I.

1996))); see also § 18-1-403, C.R.S. 2025 (“All indigent persons who

are charged with or held for the commission of a crime are entitled

to legal representation and supporting services at state expense

. . . .” (emphasis added)).

7 ¶ 17 In rejecting Sanders’ claim that trial counsel’s performance

was deficient, the district court found that “[c]ounsel was entitled to

formulate a strategy that was reasonable at the time.” We recognize

that a challenged action of counsel “might be considered sound trial

strategy under the circumstances of a particular case,” Ardolino v.

People, 69 P.3d 73, 76 (Colo. 2003), and that a court considering a

claim of ineffective assistance of counsel “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” People v. Newmiller, 2014 COA

84, ¶ 16. Here, however, the existing record is inadequate to show

whether or not trial counsel’s decision to hire, much less consult

with, a DNA expert was an informed strategic decision. And except

for the rare situation in which the trial record reveals defense

counsel’s reasoning for a particular strategic decision, a

postconviction hearing is the most effective way to accomplish this

task. See Ardolino, 69 P.3d at 78. Therefore, it was error for the

court to reject Sanders’ deficient performance claim on the basis of

strategy without examining, after a hearing, the actual reasons

underlying counsel’s actions.

8 ¶ 18 We are not persuaded otherwise by the Attorney General’s

argument that Sanders’ counsel was not ineffective by deciding not

to secure a DNA expert because a DNA expert was not an essential

ingredient of Sanders’ defense. In support, the Attorney General

argues that the prosecution advanced a complicity theory and

Sanders did not deny his participation in the crime spree, therefore,

“identity was not the question.” The Attorney General misconstrues

Sanders’ claim. Identity was not in dispute at Sanders’ trial

because his attorneys chose not to question it. But a defendant “is

entitled to a pretrial investigation sufficient to reveal potential

defenses and the facts relevant to guilt or penalty.” Davis v. People,

871 P.2d 769, 773 (Colo. 1994); see also People v. Bergerud, 223

P.3d 686, 705 (Colo. 2010) (recognizing that attorneys have a duty

to investigate possible defenses or make reasonable determinations

not to pursue them). Given the complexities inherent in DNA

evidence, Sanders’ counsel’s alleged decision not to even consult

with a DNA expert would be reasonable only “to the extent that

reasonable professional judgments support the limitations on [the]

investigation.” Ardolino, 69 P.3d at 76. And Sanders’ assertion that

his trial counsel “would [have] love[d] to have a DNA expert” but

9 lacked funds to do so, if true, is troubling, particularly given the

hundreds of years in prison Sanders potentially faced. Cf. People v.

Orozco, 210 P.3d 472, 477 (Colo. App. 2009) (reversing conviction

where “a reasonable possibility exists that [the] defendant’s

inability, because of a lack of funding, to present expert testimony

may well have affected the jury’s verdict”).

¶ 19 We also agree with Sanders that he has alleged sufficient facts

that, if true, show that his counsel’s deficient performance

prejudiced him. By procuring a DNA expert, Sanders’ counsel could

have rebutted both the lack of an eyewitness identification and the

strong emphasis that the prosecution placed on the DNA evidence

throughout trial. This, in turn, could have reasonably led the jury

to reach a different result at his trial.

¶ 20 We take care to note that our task is to determine whether

Sanders sufficiently alleged prejudice, not whether he proved (or

will be able to prove) it. Thus, to the extent the district court’s

order suggests that Sanders’ motion fails on prejudice grounds

because it lacks “evidence” directly challenging the conclusions

reached by the state’s DNA expert at trial, we disagree. At this

stage, Sanders does not have the burden to produce evidence to

10 support his claim that counsel failed to retain a DNA expert and

was prejudiced as a result. See White v. Denver Dist. Ct., 766 P.2d

632, 635 (Colo. 1988) (“A defendant need not set forth the

evidentiary support for his allegations in his initial Crim. P. 35

motion . . . .”); see also People v. Morones-Quinonez, 2015 COA 161,

¶ 12 (A defendant has no duty “to provide corroborating evidence to

support [their] prejudice allegation” at this stage.). Rather, Sanders

must only allege facts that, if true, would provide a basis for relief.

White, 766 P.2d at 635. He has done so.

¶ 21 In so concluding, we do not disagree that the circumstantial

evidence against Sanders was strong. But based on our review of

the evidence presented at trial, the circumstantial evidence did not

necessarily incriminate Sanders on all the charges against him, nor

did it unequivocably establish that his allegations of prejudice were

without merit. Rather, we agree that trial counsel might not have

needed to concede identity if counsel had hired a DNA expert to

consult with in the first place. And in doing so, we cannot say with

any assurance that the result of the proceeding would have been

the same, as to at least some of the charges.

11 ¶ 22 Therefore, taking all of Sanders’ allegations as true, we

perceive arguable merit in his claim that defense counsel was

ineffective in not retaining a DNA expert to challenge the

prosecution’s DNA evidence. We need not, and do not, decide

whether any of his other ineffective assistance claims have arguable

merit. Nor do we address Sanders’ alternative contention that the

standard for appointment of counsel is lower than the threshold for

granting an evidentiary hearing.

¶ 23 Accordingly, where, as here, at least one of Sanders’ claims

has arguable merit, the motion is not wholly unfounded and he is

entitled to the appointment of counsel and further proceedings as

outlined in Crim. P. 35(c)(3)(V). See Segura, ¶¶ 25-26, 35. Whether

Sanders is entitled to a hearing is a question that cannot be decided

until all claims, including any added by postconviction counsel,

have been briefed by the parties. See id. at ¶ 26 n.8.

IV. Conclusion

¶ 24 The order is reversed. The case is remanded for the district

court to appoint defense counsel and allow counsel the opportunity

to investigate and supplement, as needed, Sanders’ pro se motion

12 with any claims counsel finds to have arguable merit. The court

should then proceed as directed by Crim. P. 35(c)(3)(V).

JUDGE WELLING and JUDGE GROVE concur.