Peo v. Valdivia

• Court: Colorado Court of Appeals
• Decided: May 15, 2025
• Docket: 23CA2239
• Status: Unpublished

Opinion

23CA2239 Peo v Valdivia 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2239 Larimer County District Court No. 18CR1989 Honorable Gregory M. Lammons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Raymond M. Valdivia,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne R. Teodorovic, Alternate Defense Counsel, Windsor, Colorado, for Defendant-Appellant ¶1 Defendant, Raymond M. Valdivia, appeals the postconviction

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

We affirm.

I. Background

¶2 The prosecution charged Valdivia with thirty-eight criminal

counts stemming from his role in a criminal enterprise. These

charges spanned multiple separate criminal episodes, involved

multiple victims, and included several felonies. Among other

things, the prosecution charged two violations of Colorado’s

Organized Crime Control Act (COCCA), two second degree assault

counts, several menacing counts, attempted first degree assault,

second degree burglary, identity theft, and retaliation against a

witness or victim.

¶3 Eight months after the case was filed, Valdivia pleaded guilty

to one count each of violating COCCA, identity theft, attempted first

degree assault, and retaliation against a witness. In exchange, the

prosecution dismissed thirty-four remaining counts and stipulated

to concurrent sentencing, with a controlling twenty-eight-year

1 aggravated range sentence on the COCCA charge. The trial court

sentenced Valdivia in accordance with the plea agreement.

¶4 Valdivia timely filed a pro se motion for postconviction relief

under Crim. P. 35(c). He claimed that his plea was the result of

ineffective assistance of plea counsel. Specifically, he asserted that

his plea counsel (1) erroneously advised him to take the plea deal

because going to trial would result in “spending life in prison,” and

the plea deal was the “only option if [Valdivia] wanted to get out one

day”; (2) never went over case discovery with him; and (3) failed to

advise him of the nature of the charges against him in

understandable terms.

¶5 The postconviction court appointed counsel who filed a

supplemental Rule 35(c) motion likewise asserting ineffective

assistance of plea counsel. The supplement asserted four

categories of deficient performance — namely, several errors or

omissions related to counsel’s (1) investigation; (2) communication

and advisement; (3) advocacy; and (4) legal and factual research

regarding the sufficiency of the prosecution’s COCCA case. The

supplement asserted that, had Valdivia “known of his [plea]

2 counsel’s deficient performance in all aspects of his pre-trial

representation, . . . [he] would not have accepted the plea offer but

instead would have proceeded to trial.” Last, the supplement

asserted that the cumulative effect of counsel’s alleged errors and

omissions resulted in ineffective assistance. Postconviction counsel

attached and referred to numerous exhibits, including Exhibit H,

which was a postconviction investigator’s summary of an audio-

recorded interview with plea counsel.

¶6 The prosecution responded, arguing that the supplemental

motion failed to adequately allege either deficient performance or

prejudice. The prosecution pointed to the defense exhibits,

including Exhibit H, as well as its own exhibits, and argued that

plea counsel “exercised appropriate strategic concerns in

investigating and evaluating the case and had plans to continue

investigating when [Valdivia] elected to accept the plea agreement.”

Among other things, the prosecution argued that

• Valdivia’s claim that counsel should have further investigated

Valdivia’s cooperation with law enforcement was speculative

and factually unsupported;

3 • counsel didn’t pressure Valdivia into taking a plea;

• counsel sufficiently reviewed discovery;

• Valdivia’s abrupt decision to take a plea cut off the need for

ongoing investigation and witness interviews;

• counsel adequately weighed Valdivia’s history of trauma,

addiction, and mental health problems in negotiating the plea;

and

• Valdivia’s assertions of innocence were contrary to the facts

and wouldn’t have positively impacted plea negotiations.

The prosecution also argued that both Valdivia and plea counsel

sufficiently reviewed the discovery to understand the strength of the

case before the plea, plea counsel successfully negotiated a plea

deal close to the minimum of the offer, and the COCCA violations

were properly charged.

¶7 In a detailed written order addressing each of the identified

areas of alleged ineffective assistance, the postconviction court

denied the motion without a hearing, finding that none of the

postconviction claims adequately alleged either “the deficient

4 performance or prejudice prongs of the Strickland test” to entitle

Valdivia to a hearing.

II. Discussion

¶8 Valdivia contends that the postconviction court erred by

denying his motion without a hearing. Reviewing the court’s

decision to do so de novo, People v. Cali, 2020 CO 20, ¶ 14, we

disagree.

A. Governing Principles

¶9 A postconviction court may deny, without an evidentiary

hearing, a Crim. P. 35(c) claim that counsel provided ineffective

assistance if the record directly refutes the defendant’s claims or if

the motion, files, and existing record clearly establish that the

allegations, even if proven true, would fail to satisfy one or the other

prong of the test established by Strickland v. Washington, 466 U.S.

668 (1984). People v. Phipps, 2016 COA 190M, ¶ 19. Likewise,

bare and conclusory allegations are insufficient to entitle a

defendant to an evidentiary hearing on his postconviction motion.

Id. at ¶ 18.

¶ 10 To prevail on an ineffective assistance of counsel claim, a

defendant must show that (1) counsel’s performance was deficient 5 — meaning the representation fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defense. People v. Duran, 2025 COA 34, ¶ 16; Strickland, 466

U.S. at 687; see also Hill v. Lockhart, 474 U.S. 52, 57 (1985)

(applying the Strickland test to ineffective assistance of counsel

claims in cases involving guilty pleas). The failure to adequately

allege facts that, if true, would meet either one of these two prongs

defeats an ineffective assistance claim. Duran, ¶ 16.

B. Deficient Performance

¶ 11 Valdivia contends the postconviction court erred because the

motion, files, and record don’t clearly establish “that trial counsel

had sufficient familiarity with the case through discovery or

investigation” to provide effective assistance in advising Valdivia “to

take the plea.” As we understand him, this is so because the record

demonstrates counsel “never discussed the evidence” with him,

instead merely “advising him regarding the penalties associated

with the charges he faced when advising Valdivia to accept the

plea.” We confine our review to these claims and deem abandoned

the remaining issues Valdivia raised in his Crim. P. 35 motion,

6 which he doesn’t specifically reassert on appeal. People v. Brooks,

250 P.3d 771, 772 (Colo. App. 2010).

¶ 12 In its order, the postconviction court rejected Valdivia’s claims

that plea counsel failed to review discovery, communicate and

advise Valdivia of pertinent discovery, or otherwise adequately

investigate the case before advising Valdivia to plead guilty. In

doing so, the court relied on Valdivia’s own Exhibit H (submitted

with his supplemental motion) to find that, at the time Valdivia

pleaded guilty, (1) plea counsel’s investigator had begun an

investigation in the case; (2) plea counsel had reviewed discovery or

had set it for review; (3) counsel had given Valdivia “a full report

and summary of the entire case”; and (4) counsel was surprised by

Valdivia’s decision to plead guilty. The court also relied on the

court file in determining that, with respect to discovery, Valdivia’s

own actions hampered counsel’s ability to further provide him with

discovery materials. Specifically, just a month before Valdivia

pleaded guilty, the court entered a protection order requiring

counsel to recover all discovery provided to Valdivia and only allow

him to review discovery with counsel or an investigator, which

7 counsel was in the process of doing when Valdivia pleaded guilty. It

did so because of Valdivia’s misuse of discovery materials in prison.

¶ 13 The court’s determinations are supported by the court file,

Valdivia’s appellate assertion that that it was he who “abruptly

sought to end the proceedings” via the plea agreement, and Exhibit

H. And notwithstanding his argument that the court had no

evidence from the motion, file, or record from which to draw its

conclusions, Valdivia doesn’t assert that the court wasn’t entitled to

rely on his exhibit. Indeed, he relies on Exhibit H on appeal.

¶ 14 On this record, we can’t conclude that counsel “never

discussed the evidence” with Valdivia or lacked sufficient familiarity

with the case at the time of the plea. Although Exhibit H indicates

that some investigation may have been outstanding, counsel

represented that he had reviewed “quite a bit” of discovery and had

a “Valdivia database,” which included information about all the

witnesses, the places where things occurred, every agency counsel

had dealt with — in short, “a detailed summary of the entire case.”

8 ¶ 15 Thus, the postconviction court didn’t err by determining that

Valdivia failed to demonstrate deficient performance based on

alleged investigatory and communication failures.

¶ 16 In any event, as discussed below, we agree with the

postconviction court’s conclusion that Valdivia failed to

demonstrate prejudice.

C. Prejudice

¶ 17 To establish prejudice in the context of a guilty plea, the

defendant must show “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Duran, ¶ 17 (quoting Hill, 474 U.S. at

59). “This is an objective inquiry.” Id. (quoting People v. Corson,

2016 CO 33, ¶ 35). A defendant’s assertion that he would have

made a different decision about the plea had he been appropriately

advised isn’t enough; rather, “[s]ome objective evidence” must

corroborate his assertion. Id. (quoting People v. Sifuentes, 2017

COA 48M, ¶ 20). That is, the defendant “must convince the court

that a decision to reject the plea bargain would have been rational

under the circumstances.” Id. (quoting Sifuentes, ¶ 20).

9 ¶ 18 In determining whether a decision to reject the guilty plea

would have been rational, a court should consider the strength of

the prosecution’s case, the attractiveness of the plea deal, and the

risks of going to trial. Id. at ¶ 18; see Carmichael v. People, 206

P.3d 800, 806 (Colo. 2009) (recognizing that the comparative

sentencing exposure between standing trial and accepting a plea

offer may be important to the decision whether to plead guilty),

overruled on other grounds as recognized in People v. Delgado, 2019

COA 55, ¶ 1; Corson, ¶ 35 (same).

¶ 19 We note that, on appeal, Valdivia doesn’t make any assertions

related to prejudice until his reply brief, in which he asserts,

incorrectly, that “it is inherently prejudicial to advise a defendant

regarding a plea offer when plea counsel has failed to complete

investigation necessary to fully evaluate the strength of the

prosecution’s case.”1

1 In his reply brief, Valdivia points back to cases cited in his

opening brief in support of this assertion. But those cases say only that inadequate investigation may constitute deficient performance; they don’t stand for the proposition that any such deficient performance necessarily prejudiced the defendant. 10 ¶ 20 As noted, Valdivia acknowledges in his opening brief that it

was he who “abruptly sought to end the proceedings” via the plea

agreement. Given this assertion, we question whether he has

adequately alleged that he would have gone to trial “but for” his

counsel’s alleged deficiencies. See Hill, 474 U.S. at 59.

¶ 21 In any event, in Valdivia’s postconviction motion, he vacillated

between saying that (1) he would have proceeded to trial but for

counsel’s alleged deficiencies and (2) a competent attorney who

conducted additional investigation would have been better

positioned to negotiate a more favorable plea. Indeed, in replying to

the prosecution’s response to his postconviction motion, he

appeared to take the position that plea counsel was simply ill-

equipped to seek a better plea disposition due to his alleged

deficiencies. But that doesn’t satisfy the prejudice standard.

¶ 22 Valdivia made only conclusory and self-serving allegations that

he would not have accepted a plea and didn’t allege that objective

evidence would corroborate his assertion that he would have made

a different decision about the plea but for counsel’s alleged deficient

performance. Duran, ¶ 20.

11 ¶ 23 True, in support of his claim related to plea counsel’s allegedly

deficient investigation, he asserted that, had counsel conducted a

more thorough investigation, he would have learned that a “a strong

defense to the COCCA charges existed” based on a lack of evidence

supporting the “enterprise” and “associate in fact” elements. But

even assuming this assertion is true, Valdivia still faced thirty-six

counts independent of the COCCA charges. Of those, he faced —

among other things — three class 3 felonies with a presumptive

maximum sentence of twelve years each, three class 4 felonies with

a presumptive maximum sentence of six years each, and four class

5 felonies with a presumptive maximum sentence of three years

each. See § 18-1.3-401(1)(a)(V)(A), (A.1), C.R.S. 2024. Each of

these felonies were based on independent criminal episodes or

separate victims; thus, if convicted at trial of these offenses,

Valdivia faced a potential sentencing exposure of more than double

that which he received under the plea agreement. See, e.g., Juhl v.

People, 172 P.3d 896, 899 (Colo. 2007) (recognizing that when a

defendant is convicted of multiple offenses, the sentencing court

has the discretion to impose consecutive sentences as long as the

12 offenses arose from different criminal episodes or, if they arose from

the same criminal episode, are not supported by identical evidence).

Indeed, as the postconviction court noted, and Valdivia doesn’t

dispute, he acknowledged as much.

¶ 24 And to the extent Valdivia’s motion asserted that he had

defenses to any of these charges, those assertions consist of

nothing more than vague, conclusory, or self-serving statements.

See Carmichael, 206 P.3d at 807 (a defendant’s self-serving claim of

prejudice is insufficient without some objective, corroborating

evidence); see also Duran, ¶ 16 (a conclusory allegation of prejudice

is insufficient under Strickland). They don’t seriously bring into

question the strength of the prosecution’s case, which the

postconviction court found was “very strong.” The record included

several corroborating victim and witness accounts, along with — in

some instances — physical or video evidence. Given the benefits of

the plea agreement and the “daunting downside risk” of proceeding

to trial, we can’t conclude that Valdivia alleged facts that, if true,

would demonstrate that, but for plea counsel’s allegedly deficient

13 performance, it would have been rational to reject the plea offer and

proceed to trial. See Corson, ¶ 42; Duran, ¶¶ 17-20.

¶ 25 Accordingly, we won’t disturb the postconviction court’s

conclusion that Valdivia failed to sufficiently allege Strickland

prejudice. Duran, ¶ 16.

III. Disposition

¶ 26 The order is affirmed.

JUDGE BROWN and JUDGE YUN concur.