Peo v. Silvis

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 23CA2137
• Status: Unpublished

Opinion

23CA2137 Peo v Silvis 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2137 Adams County District Court No. 21CR2511 Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Silvis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant ¶1 Defendant, James Silvis, appeals the judgment of conviction

entered on a jury verdict finding him guilty of attempted first degree

murder and first degree assault. We affirm.

I. Background

¶2 According to the trial evidence, Silvis hit the victim, a

coworker, in the head with a hammer, fracturing his skull and

causing brain injuries. The prosecution charged Silvis with

attempted first degree murder, first degree assault, and two crime of

violence sentence enhancers. (The prosecution also charged Silvis

with a bias-motivated crime but dismissed that charge before trial.)

¶3 In a recorded police interview following Silvis’s arrest, he

admitted to hitting the victim in the head with a hammer. He said

he had done it because the victim had previously threatened and

bullied him and because the United States had become a dangerous

place. But, he explained, nothing in particular had happened the

day of the incident to prompt the attack. When asked if he was

trying to kill the victim, Silvis said he “probably didn’t care,” but he

was aware that hitting the victim with a hammer in the head had

the potential to kill him.

1 ¶4 Before trial, Silvis filed a motion to remove his court-appointed

counsel and appoint substitute counsel. The district court denied

the motion after a hearing.

¶5 Silvis asserted self-defense at trial. He testified that he hit the

victim with a hammer because he feared for his safety. He claimed

the victim had told him that day that he would “be dead by

morning,” and he knew the victim to bring a gun to work. However,

he admitted that the victim was not actively threatening him and

was seated at a desk facing away from him when he hit him with

the hammer. Silvis said he did not intend to kill the victim or cause

him serious bodily injury when he hit him.

¶6 The victim testified that he did not specifically recall the attack

but remembered seeing blood on his arm, falling to the ground, and

waking up later in the hospital. The victim also did not recall ever

threatening Silvis.

¶7 The prosecution played a surveillance video for the jury that

showed footage from “shortly before the incident until shortly

afterwards.” In the video, Silvis can be seen walking with a hammer

in his hand.

2 ¶8 The jury convicted Silvis as charged. The district court

sentenced him to forty-eight years in prison for attempted first

degree murder and a concurrent term of thirty-two years in prison

for first degree assault.

II. Discussion

¶9 Silvis contends that the district court erred by denying his

pretrial request for substitute counsel. We disagree.

A. Applicable Law and Standard of Review

¶ 10 Although an indigent criminal defendant has a constitutional

right to counsel, they do not have a right to their counsel of choice.

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; People v.

Travis, 2019 CO 15, ¶ 8. Moreover, the right to counsel includes

the effective assistance of counsel, but it “does not necessarily

include ‘a meaningful attorney-client relationship.’” People v.

Arguello, 772 P.2d 87, 92 (Colo. 1989) (quoting Morris v. Slappy,

461 U.S. 1, 14 (1983)).

¶ 11 When an indigent criminal defendant objects to

court-appointed counsel, the court must inquire into the reasons

for the defendant’s dissatisfaction. People v. Bergerud, 223 P.3d

686, 694 (Colo. 2010); Arguello, 772 P.2d at 94. Before a

3 substitution of counsel is warranted, the court must determine

whether the defendant has a well-founded reason to believe

court-appointed counsel either cannot or will not competently

represent them. People v. Kelling, 151 P.3d 650, 653 (Colo. App.

2006). “As long as the [district] court has a reasonable basis for

believing that the lawyer-client relation has not deteriorated to the

point where counsel is unable to give effective aid in the fair

presentation of a defense, the court is justified in refusing to

appoint new counsel.” People v. Schultheis, 638 P.2d 8, 15 (Colo.

1981). If the defendant establishes good cause, such as a conflict of

interest, a complete breakdown of communication, or an

irreconcilable conflict that may lead to an unjust verdict, the court

must appoint substitute counsel. Arguello, 772 P.2d at 94.

¶ 12 Courts consider four factors in evaluating the constitutional

implications of a request for substitute counsel: (1) the timeliness of

the request; (2) the adequacy of the court’s inquiry into the

defendant’s complaint; (3) whether the attorney-client conflict was

so great that it resulted in a total lack of communication or

otherwise prevented an adequate defense; and (4) whether the

4 defendant substantially and unreasonably contributed to the

underlying conflict. Bergerud, 223 P.3d at 695.

¶ 13 We review a district court’s decision to deny substitute counsel

for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101. A

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. People v.

Johnson, 2021 CO 35, ¶ 16.

B. Additional Background

¶ 14 The district court appointed the public defender’s office to

represent Silvis. Five months before trial was scheduled to begin,

Silvis filed a motion to dismiss his court-appointed counsel and

appoint substitute counsel. He claimed that (1) he had not been

fully informed of all his “rights and methods of practice” during

court proceedings; (2) “additional information and discovery” were

available but were not being pursued by current counsel; and

(3) additional defense methods were required but he and counsel

had reached “insurmountable differences.” The court set the matter

for a hearing.

¶ 15 At the hearing, Silvis raised five specific concerns, and defense

counsel responded to each one. Silvis first claimed that he had

5 been telling counsel for eighteen months that the surveillance video

from the scene was “redacted” and there was “more to this video

than what [wa]s being shown.” Counsel explained that she did not

have evidence that the surveillance footage had been “tampered

with.”

¶ 16 Next, Silvis claimed that he told counsel about text messages

and photographs on his phone that would corroborate that some of

the prosecution witnesses knew there was an “issue” between Silvis

and the victim before this incident. Silvis told the court he did not

know where his phone was located. Counsel said she was

investigating the issue and “reaching out to the people that Mr.

Silvis t[old] me that he made complaints to.” She said Silvis’s

phone was presumably in evidence, and she was trying to find a

way to obtain evidence from it in a confidential manner.

¶ 17 Third, Silvis asserted that, during a motions hearing, counsel

did not challenge the detective’s testimony that Silvis was “covered

in blood.” Counsel responded that whether or not Silvis was

covered in blood was “not super relevant to our defense” but would

be subject to cross-examination at trial.

6 ¶ 18 Fourth, Silvis claimed that, during a motions hearing, counsel

did not challenge his recorded interview with police, which he said

had no sound for a portion of it. Counsel explained that “there

[wa]sn’t a whole lot [she could] do with that” because she had no

evidence of bad faith with regard to the video.

¶ 19 Finally, Silvis said that the discovery was “read” to him only

once eighteen months prior, and he had been denied access to it

since then. Counsel responded that a paralegal had gone through

discovery with Silvis and could do so again if necessary, but she

could not “give a copy of discovery to in-custody clients.”

¶ 20 The district court asked counsel if there was anything she had

heard at the hearing that gave her any concern about her ability to

move forward as defense counsel. She responded, “Not at all.”

¶ 21 The district court then applied the four Bergerud factors and

denied Silvis’s request for substitute counsel. The court first found,

with respect to factors one and four, that Silvis’s motion was timely

and that he had not substantially and unreasonably contributed to

the alleged conflict. The court next found, as relevant here, that

Silvis did not establish a complete breakdown in communication or

that the alleged conflict would prevent an adequate defense. The

7 court also found that there was nothing to suggest that counsel

could not continue to adequately represent Silvis.

C. Analysis

¶ 22 Silvis takes issue with the district court’s application of the

second and third factors described in Bergerud.

¶ 23 Regarding the second factor, Silvis contends that the district

court’s inquiry into his complaints was improperly limited to his

express concerns at the hearing. He asserts that the court should

have broadly construed his complaints by making “specific or

clarifying inquiries” about things like whether there was a

breakdown in communication with counsel, whether he and

counsel were engaging in meaningful discussions, and whether

counsel had conducted sufficient investigations. See Bergerud, 223

P.3d at 696-97 (A court should broadly construe a pro se litigant’s

allegations “to ensure he is not denied review of important

constitutional issues simply for his inability to articulate his

concerns within the legal lexicon.”).

¶ 24 As we have said, upon receiving a motion to substitute

counsel, a court must inquire into the reasons for the defendant’s

request. See id. at 694. The district court here did just that. At

8 the hearing, the court said to Silvis, “[P]lease tell me in your own

words what that issue or issues is or are” and prompted him for

additional details by asking him three times if he had “[a]nything

else” to assert and asking him at the end, “[I]s there . . . any last

thing you want me to know?” The court gave Silvis the opportunity

to discuss and address all of his complaints against counsel. Silvis

cites no authority, nor have we found any, for the proposition that

the court should have followed up on his complaints with specific

questions. And his assertion that the court’s duty to broadly

construe his allegations demands that the court ask such questions

is unsubstantiated. Moreover, there is no support in the record for

Silvis’s argument that the court “used [his] lack of sophisticated

articulation to rule against him, to deny substitute counsel.”

¶ 25 As to the third Bergerud factor, Silvis contends that he

sufficiently established a complete breakdown in communication

that resulted in counsel’s inability to present an adequate defense.

Even broadly construing Silvis’s complaints against counsel, we

disagree.

¶ 26 “The third factor focuses on the underlying constitutional

concern: whether the disagreement or communication breakdown

9 inhibits the presentation of an adequate defense or the defendant’s

complete representation by counsel.” Id. at 696. “The type of ‘total

breakdown’ in communication which would warrant substitution of

counsel must be evidenced by proof ‘of a severe and pervasive

conflict with [the defendant’s] attorney or evidence that he had such

minimal contact with the attorney that meaningful communication

was not possible.’” People v. Rodriguez, 2022 COA 98, ¶ 63 (quoting

People v. Faussett, 2016 COA 94M, ¶ 24).

¶ 27 Regarding Silvis’s assertion that counsel did not challenge the

detective’s testimony or his recorded police interview at motions

hearings, those are “matters of trial preparation, strategy, and

tactics[, which] do not establish good cause for substitution of

counsel.” Kelling, 151 P.3d at 653; see also McCoy v. Louisiana,

584 U.S. 414, 422 (2018) (Defense counsel has the authority to

decide matters “such as ‘what arguments to pursue, what

evidentiary objections to raise, and what agreements to conclude

regarding the admission of evidence.’” (quoting Gonzalez v. United

States, 553 U.S. 242, 248 (2008))).

¶ 28 Likewise, Silvis’s complaint that counsel only allowed him to

review discovery once in eighteen months does not warrant

10 substitution of counsel. See People v. Krueger, 2012 COA 80, ¶ 21

(“[C]ounsel’s decision to provide the defendant with limited access

to selected discovery materials, though the defendant wants to

review all discovery materials, does not create a conflict warranting

substitution of counsel.”). Nevertheless, counsel said at the hearing

that Silvis could review discovery again if he desired, and neither

the record nor the briefs show that this did not occur.

¶ 29 That leaves Silvis’s claim that a complete breakdown in

communication occurred because counsel did not properly

investigate the allegedly redacted surveillance video or the alleged

text messages and photos on his phone, which he claims inhibited

the presentation of an adequate defense. But Silvis’s allegations

coupled with counsel’s testimony at the hearing did not

demonstrate a “severe and pervasive conflict” such that “meaningful

communication was not possible.” Rodriguez, ¶ 63 (quoting

Faussett, ¶ 24).

¶ 30 At the hearing, counsel said she had found no evidence that

the surveillance footage had been tampered with, implying that she

had looked into Silvis’s concern regarding the alleged redaction of

the video. On appeal, Silvis argues that, due to a lack of

11 communication, counsel misunderstood him regarding the

surveillance video. He says his concern was not that the video was

tampered with but that the video was incomplete and did not show

earlier interactions between him and the victim. But Silvis raised

the incompleteness issue at the hearing and did not suggest that

tampering was not the problem after counsel testified. Regardless,

this instance of alleged miscommunication does not demonstrate a

“total breakdown” in communication that would prevent an

adequate defense and warrant substitution of counsel. Id.; see also

People v. Johnson, 2016 COA 15, ¶ 32 (“Mere communication

difficulties . . . do not demonstrate a complete breakdown in

communication . . . .”); People v. Thornton, 251 P.3d 1147, 1151

(Colo. App. 2010) (refusing to find a complete breakdown in

communication requiring substitute counsel even though counsel

admitted to “a lot of communication breakdowns” because he

assured the court that he was in contact with the defendant and

continued to represent his interests).

¶ 31 Likewise, Silvis’s complaint that counsel did not investigate

the alleged text messages and photos on his phone that he claims

would corroborate his version of the events does not demonstrate a

12 total breakdown in communication. At the hearing, counsel said

she was investigating Silvis’s allegations regarding the contents of

his cell phone and reaching out to the people he said he had

complained to about his relationship with the victim. And the

record does not contradict her testimony. Silvis claims that, due to

a communication breakdown, counsel failed to conduct these

investigations, which is demonstrated by the fact that evidence from

his phone was not presented at trial. However, the result of

counsel’s investigations — i.e., whether they revealed evidence

supportive of self-defense — is not indicative of a “total breakdown”

in communication between him and counsel. Rodriguez, ¶ 63.

¶ 32 Bergerud is instructive here. During trial, Bergerud requested

new counsel, in part because his court-appointed attorneys had

“baldly refused to develop the theory of self-defense and ignored his

account of the night’s events.” Bergerud, 223 P.3d at 705. During

in camera proceedings to address the potential conflict, Bergerud’s

attorneys “never commented on the nature of their disagreement

with their client nor gave an account of their reasoning on pertinent

issues concerning the development of Bergerud’s defense.” Id. at

692. Because of the attorneys’ “reticence to discuss the underlying

13 dispute” and the record’s resulting silence on their investigations,

the supreme court could not conclude “whether the alleged

breakdown in communications did indeed prevent Bergerud’s

attorneys from putting on an adequate defense.” Id. at 705.

Therefore, the court remanded for a hearing to determine, in part,

whether Bergerud’s attorneys had failed in their duty to investigate

possible defenses due to a complete breakdown in communications.

See id. at 704-07.

¶ 33 Silvis’s situation here is markedly different. His counsel did

not “baldly refuse” to present a self-defense defense, ignore his

version of the events, or refuse to discuss her related investigations

before the court. To the contrary, counsel said she was

investigating the very things that Silvis believed would support his

defense. And counsel presented a self-defense defense at trial. The

fact that perhaps counsel’s investigations did not reveal the

evidence Silvis would have liked does not mean there was a

complete breakdown in communication between him and counsel.

Cf. United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (the

defendant sufficiently alleged a total breakdown in communication

14 because counsel never interviewed him prior to trial and he had

been completely unable to contact counsel).

¶ 34 For these reasons, we conclude that the district court did not

abuse its discretion by declining Silvis’s request to appoint

substitute counsel. The court made findings as to each Bergerud

factor and concluded Silvis did not establish a conflict so great that

it resulted in a total lack of communication or otherwise prevented

the presentation of an adequate defense.

D. Additional Arguments

¶ 35 To the extent Silvis raises additional arguments for the first

time in his reply brief — such as that regarding defense counsel’s

“endorsement of every possible defense under the sun” — we will

not address them. See People v. Owens, 2024 CO 10, ¶ 90.

III. Disposition

¶ 36 The judgment is affirmed.

JUDGE JOHNSON and JUDGE GOMEZ concur.