24CA0380 Peo v Veater 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0380 Arapahoe County District Court No. 20CR1034 Honorable Ben L. Leutwyler III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Scott Howard Veater,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 27, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Scott Howard Veater, Pro Se ¶1 Defendant, Scott Howard Veater, appeals the district court’s
order denying his Crim. P. 35(c) motion for postconviction relief.
We affirm.
I. Background
¶2 The State charged Veater with sexual assault on a child and
two counts of sexual assault on a child committed as part of a
pattern of abuse. The complaint listed two victims. Veater pleaded
guilty to an added count of sexual exploitation of a child in
exchange for the dismissal of the original charges and a stipulated
sentence of ten years on sex offender intensive supervision
probation (SOISP) with ninety days in jail as a condition of
probation. As part of the plea agreement, Veater waived his right to
a direct appeal and to any reconsideration of his sentence. The
district court accepted Veater’s guilty plea and imposed the
stipulated sentence.
¶3 Approximately two years later, Veater’s probation officer filed a
complaint to revoke his SOISP, alleging that he violated its
conditions. After a hearing on the complaint, the district court
found that Veater had violated the conditions of SOISP, revoked the
probation sentence, and resentenced him to ten years in the
1 custody of the Department of Corrections. The court denied
Veater’s Crim. P. 35(b) motion for a reduction of sentence.
¶4 Veater then filed a timely pro se Crim. P. 35(c) motion and
requested the appointment of counsel. The postconviction court
denied the motion without a hearing and without appointing
counsel. This appeal followed.
II. Standard of Review
¶5 We review a district court’s denial of a Crim. P. 35(c) motion
without a hearing de novo. People v. Cali, 2020 CO 20, ¶ 14.
Defendants need not set forth evidentiary support for their
allegations in a Crim. P. 35 motion, but instead need only assert
facts that, if true, would provide a basis for relief. White v. Denver
Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A Crim. P. 35(c) motion
may be denied without an evidentiary hearing only where the
motion, files, and record clearly establish that the defendant’s
allegations are without merit and do not warrant relief. Ardolino v.
People, 69 P.3d 73, 77 (Colo. 2003).
III. Request to File an Untimely Supplemental Motion
¶6 A Crim. P. 35(c) motion must be filed within three years of a
defendant’s conviction for an offense other than a class 1 felony.
2 § 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). “For purposes of
[section] 16-5-402 and postconviction review, if there is no direct
appeal, a conviction occurs when the trial court enters judgment
and sentence is imposed.” People v. Collier, 151 P.3d 668, 671
(Colo. App. 2006). But, as relevant here, a postconviction claim
shall be excluded from the time limitation period where a court
finds that the “failure to seek relief within the applicable time period
was the result of circumstances amounting to justifiable excuse or
excusable neglect.” § 16-5-402(2)(d).
¶7 In his Crim. P. 35(c) motion, Veater indicated that he wanted
to submit a supplemental motion with additional claims and
arguments and asked the postconviction court to make a finding
that justifiable excuse or excusable neglect existed to excuse his
future filing of this supplemental motion after the expiration of
section 16-5-402(1)’s three-year deadline. The court found that
Veater’s Crim. P. 35(c) motion was timely filed but that he did not
allege sufficient facts to establish justifiable excuse or excusable
neglect to permit the untimely filing of a supplemental motion.
Veater appeals this latter finding.
3 ¶8 Veater does not provide, nor have we found, any authority that
allows a postconviction court to make a preemptive justifiable
excuse or excusable neglect finding to excuse a yet-to-be-filed Crim.
P. 35(c) motion. See People v. Ambos, 51 P.3d 1070, 1071-72 (Colo.
App. 2002) (“[T]he timely commencement of a collateral attack fails
to toll the limitations period with respect to additional
postconviction claims not contained in the timely filed motion.”); see
also Bd. of Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union
Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005) (“Ripeness tests
whether the issue is real, immediate, and fit for adjudication.
Courts should refuse to consider uncertain or contingent future
matters that suppose speculative injury that may never occur.”)
(citation omitted); People v. Vigil, 2023 COA 12, ¶ 15. Instead, the
rules of criminal procedure require defendants to file their untimely
motion and allege an exception to section 16-5-402(1)’s three-year
deadline. See Crim. P. 35(c)(3)(I) (“Any motion filed outside of the
time limits set forth in [section] 16-5-402 . . . shall allege facts
which, if true, would establish one of the exceptions listed in
[section] 16-5-402(2) . . . .”).
4 ¶9 Further, the Colorado Supreme Court held that, in
determining whether a defendant established justifiable excuse or
excusable neglect, “it [is] appropriate to consider the circumstances
existing throughout the entire period from the inception of the
conviction in question.” People v. Wiedemer, 852 P.2d 424, 441
(Colo. 1993). A finding of justifiable excuse or excusable neglect
regarding a yet-to-be-filed postconviction motion could not be based
on a consideration of all circumstances existing throughout the
entire period.
¶ 10 Therefore, we conclude that the postconviction court did not
err by denying Veater’s request for a justifiable excuse or excusable
neglect finding. See People v. Hamm, 2019 COA 90, ¶ 23 (“[W]e will
affirm a district court’s denial of a Rule 35 motion on any ground
supported by the record, even if the district court did not consider
or contemplate that ground.”).
IV. Ineffective Assistance of Plea Counsel
¶ 11 In his motion, Veater asserted that plea counsel was
ineffective for failing to (1) adequately advise him of the
consequences of pleading guilty, (2) obtain an evaluation to
determine whether he was competent to enter a valid guilty plea, (3)
5 investigate the impact his mental health issues had on his ability to
understand the consequences of pleading guilty, and (4) adequately
investigate his defense. He also argued that plea counsel was
ineffective for failing to obtain a sentencing mitigation packet and to
perfect a direct appeal of his sentence or apply for sentence
reconsideration. In a thorough written order, the postconviction
court denied these claims, finding that the record undermined
Veater’s assertions or that his allegations, if true, were insufficient
to establish ineffective assistance of counsel.
¶ 12 We conclude that the postconviction court did not err by
denying these claims without a hearing. See Crim. P. 35(c)(3)(IV);
People v. Delgado, 2019 COA 55, ¶ 8 (A court may deny a Crim. P.
35(c) motion without a hearing “if the motion, files, and record
clearly establish that the defendant is not entitled to relief; if the
allegations, even if true, don’t provide a basis for relief; or if the
claims are bare and conclusory in nature and lack supporting
factual allegations.”).
A. Standard of Review
¶ 13
6 ¶ 14 Criminal defendants are constitutionally entitled to effective
assistance from their counsel. Ardolino, 69 P.3d at 76. This right
to the effective assistance of counsel extends to the plea bargaining
process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v.
Frye, 566 U.S. 134, 144 (2012). “[A] defendant may challenge [a]
guilty plea on the grounds of ineffective assistance of counsel when
that challenge goes to the issue of whether the plea was knowingly,
voluntarily, and intelligently entered.” People v. Stovall, 2012 COA
7M, ¶ 13.
¶ 15 “In order to prevail on an ineffective assistance of counsel
claim, a defendant must prove 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). The failure to
prove one of these two prongs defeats an ineffective assistance
claim. People v. Thompson, 2020 COA 117, ¶ 50.
¶ 16 To establish deficient performance, a defendant must prove
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88
(1984); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying
the Strickland test to ineffective assistance of counsel claims in
7 cases involving guilty pleas). “[J]udicial 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.
¶ 17 To establish prejudice, a defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Id.
¶ 18 “To prove prejudice in the context of a guilty plea, the
defendant must establish a reasonable probability that but for
counsel’s errors, [they] would not have pleaded guilty and would
have insisted on going to trial.” People v. Vicente-Sontay, 2014 COA
175, ¶ 20. Further, the defendant “must convince the court that a
decision to reject the plea bargain would have been rational under
the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010);
see also People v. Finney, 2012 COA 38, ¶ 71, aff’d, 2014 CO 38.
8 ¶ 19 “The denial of a claim of ineffective assistance of counsel
without a hearing is justified if, but only if, the existing record
establishes that the defendant’s allegations, even if proven true,
would fail to establish either constitutionally deficient performance
or prejudice.” People v. Chavez-Torres, 2016 COA 169M, ¶ 31, aff’d,
2019 CO 59.
B. Investigation of Competency
¶ 20 Based on the record before us, we conclude that Veater’s
assertions regarding plea counsel’s advisement and investigation
into his competency and mental health, if true, did not warrant a
hearing.
¶ 21 Although the transcript of the providency hearing is not in the
record before us (see Part V below), the plea documents
demonstrate that plea counsel advised Veater of, and that Veater
understood, the offense to which he was pleading guilty, the
sentencing consequences of pleading guilty, and the rights he was
waiving by pleading guilty. Plea counsel represented that he had
discussed these matters with Veater, and Veater acknowledged his
satisfaction with counsel’s advice. Ultimately, the providency court
found that Veater understood these advisements.
9 ¶ 22 The plea documents also reflect Veater’s confirmation that
(1) “[his] mental and physical health [were] satisfactory, and [he
was] able to understand what [wa]s happening in these proceedings
so that [he could] make important decisions on [his] own behalf”; (2)
he was “completely alert, thinking clearly, and . . . able to exercise
sound judgment”; (3) he “underst[oo]d the court proceedings clearly
and [was] not suffering . . . from any mental health issues or from
the effects of any drugs, alcohol or medications which would affect
[his] decision to plead guilty”; and (4) his decision to plead guilty
was “made knowingly, freely, voluntarily, and intelligently.”
Counsel agreed that Veater “[wa]s competent to proceed and that
the plea [wa]s being tendered by [him] freely, knowingly, and
voluntarily.” Ultimately, the providency court found that Veater
was competent to proceed.
¶ 23 Further, a pre-plea offense-specific evaluation and the
presentence investigation report identified Veater’s mental health
issues but observed that he did not exhibit any deficiencies in his
thinking or comprehension. Cognitive impairment testing revealed
that Veater was within normal limits. And these documents, as
well as the sentencing hearing transcript, contain statements from
10 Veater regarding the incident and the criminal proceeding that
reflect his understanding of the legal proceedings. He has not cited,
nor are we aware of, any legal authority equating mental illness
with the legal standard for legal competence.
¶ 24 Accordingly, we conclude that Veater’s allegations of plea
counsel’s deficiencies are belied by this record and that the
allegations, if true, do not establish that counsel’s performance fell
below an objective standard of reasonableness. See People v.
Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011) (“To prevail on a
claim of ineffective assistance of counsel, a defendant must show
that, in light of all the circumstances, the identified acts or
omissions of counsel were outside the wide range of professionally
competent assistance.”), aff’d, 2015 CO 37.
C. Inadequate Investigation
¶ 25 To the extent Veater alleges that plea counsel failed to
adequately investigate his case, he does not specify what counsel
should have done except to request a competency examination. For
the reasons described above, nothing in the record suggests that
Veater was legally incompetent or that counsel had any basis to
request such an exam. Thus, without more, Veater’s allegation
11 alone is insufficient to establish deficient performance. See People
v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (rejecting the
defendant’s claim that counsel was ineffective for conducting an
inadequate investigation because he did “not explain[] what
additional investigation counsel should have done, what the results
of those efforts would have been, and how they would have affected
the outcome of the case”); see also People v. Villanueva, 2016 COA
70, ¶¶ 67-68 (A defendant “must do more than simply allege that
other evidence could have aided [their] defense; [they] must identify
the evidence and demonstrate that it would have advanced [their]
defense.”).
D. Sentencing Mitigation
¶ 26 Veater next contends that plea counsel’s representation during
sentencing was deficient because he failed to present an
independent Veterans Affairs Mitigation Packet (VAMP). Accepting
this allegation as true, we conclude that it does not establish that
Veater is entitled to relief. Veater did not identify what impact a
sentencing mitigation packet would have had since his plea
agreement called for a stipulated ten-year SOISP sentence.
Moreover, the plea agreement paperwork shows that Veater waived
12 his right to seek a sentence reconsideration, so the VAMP could not
have assisted him in that regard. Finally, to the extent Veater
asserts it would have assisted in a direct appeal of his sentence, the
record shows that Veater waived his right to appeal his sentence
both in the paperwork and by agreeing to a stipulated sentence.
See § 18-1-409(1), C.R.S. 2024 (“[I]f the sentence is within a range
agreed upon by the parties pursuant to a plea agreement, the
defendant shall not have the right of appellate review of the
propriety of the sentence.”).
E. Remaining Claim
¶ 27 Veater asserts in his opening brief that plea counsel was
deficient in not hiring an expert witness. But a review of the record
shows that he did not make this specific allegation in his Crim. P.
35(c) motion, so we do not consider it for the first time here. See
People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996); see also
People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996) (rejecting the
defendant’s “attempts to use his brief on . . . appeal to fortify a
number of issues inadequately raised or supported by his
[postconviction] motion”).
13 F. No Prejudice
¶ 28 Finally, even assuming, without deciding, that plea counsel’s
performance was deficient, we conclude that Veater did not assert
facts that, if true, would establish a reasonable probability that he
would have rejected the plea offer and proceeded to trial.
¶ 29 If he had proceeded to trial, Veater would have faced three sex
offense charges under the Colorado Sex Offender Lifetime
Supervision Act of 1998. See § 18-1.3-1003(5)(a)(IV), C.R.S. 2024.
If convicted of these offenses against two victims, Veater would have
been subject to a consecutive, indeterminate prison sentence. See
§ 18-1.3-1003(4); § 18-1.3-1004(1)(a), C.R.S. 2024; see also § 18-1-
408(3), C.R.S. 2024 (“[W]here multiple victims are involved, the
court may, within its discretion, impose consecutive sentences.”);
Juhl v. People, 172 P.3d 896, 899 (Colo. 2007) (generally, a trial
court has the discretion to impose either concurrent or consecutive
sentences when a defendant is convicted of multiple offenses).
¶ 30 Instead, Veater’s acceptance of the plea agreement resulted in
the dismissal of the original sex offense charges, a conviction of one
felony sex offense that is not subject to indeterminate sentencing,
and a stipulated determinate sentence to probation. Indeed, the
14 presentence investigation report noted that Veater referred to the
sentencing stipulation as “the best outcome [he] could have hoped
for.”
¶ 31 Thus, Veater did not allege facts that, if true, would
demonstrate that, but for plea counsel’s allegedly deficient
performance, it would have been rational for him to reject the plea
offer and proceed to trial. See People v. Corson, 2016 CO 33, ¶ 42
(The defendant did not show a reasonable probability that he would
have rejected the plea offer and proceeded to trial because the plea
agreement provided substantial benefits to him and he “faced a
daunting downside risk at trial.”); People v. Sifuentes, 2017 COA
48M, ¶ 21 (“Various factors should inform a court’s analysis of
whether a decision to reject the guilty plea would have been
rational,” including “the strength of the prosecution’s case” and “the
attractiveness of the plea deal and the risks of going to trial.”).
V. District Court Plea Advisement
¶ 32 In his motion, Veater also argued that the providency court
failed to sufficiently advise him before accepting his guilty plea. The
postconviction court found that the record undermined this claim.
We agree.
15 ¶ 33 “Given the important rights at stake, to be constitutionally
valid, a defendant must enter [a] guilty plea knowingly, voluntarily,
and intelligently.” Sanchez-Martinez v. People, 250 P.3d 1248, 1255
(Colo. 2011). “To ensure the constitutionality of guilty pleas, Crim.
P. 11(b) outlines various determinations the court must make
before accepting a guilty plea.” Id. at 1254.
¶ 34 Initially, we are unable to review the transcript of the
providency hearing because it was not included in the appellate
record. See People v. Duran, 2015 COA 141, ¶ 12 (“It is the
appellant’s responsibility to designate the record on appeal,
including those parts of the trial proceedings that are necessary for
purposes of the appeal . . . .”). In the absence of the transcript, we
presume that it supports the postconviction court’s finding that
Veater received a sufficient plea advisement at the providency
hearing. Id.
¶ 35 And, even accepting as true Veater’s assertion that he received
a deficient plea advisement, he failed to demonstrate that the error
was not harmless. Dawson v. People, 30 P.3d 213, 216-17 (Colo.
2001) (affirming the denial of the defendant’s Crim. P. 35(c) motion
to withdraw his guilty plea because the defendant “suffered no
16 prejudice from the inadequate Crim. P. 11 advisements”). Indeed,
the plea documents containing Veater’s initials and signature
verifying that he understood the terms of the plea agreement and
was knowingly and voluntarily entering his guilty plea demonstrate
that he received a proper advisement before pleading guilty.
VI. Appointment of Counsel
¶ 36 Lastly, because Veater did not assert a claim that has
arguable merit, we conclude that the postconviction court did not
err by denying his request for the appointment of counsel. See
People v. Segura, 2024 CO 70, ¶¶ 7, 25.
VII. Disposition
¶ 37 The order is affirmed.
JUDGE SCHOCK and JUDGE SULLIVAN concur.