Peo v. Ward

• Court: Colorado Court of Appeals
• Decided: March 19, 2026
• Docket: 24CA1536
• Status: Unpublished

Opinion

24CA1536 Peo v Ward 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1536 Boulder County District Court No. 16CR1742 Honorable Ingrid S. Bakke, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tobais Gavin Ward,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 19, 2026

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

McCabe Law, Alison Gordon, Boulder, Colorado, for Defendant-Appellant ¶1 Defendant, Tobias Gavin Ward, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion after an evidentiary

hearing. We affirm.

I. Background

A. Plea and Deferred Judgment and Sentence

¶2 Ward pleaded guilty to possession with intent to manufacture

or distribute marijuana or marijuana concentrate, a class 4 drug

felony, and possession of marijuana or marijuana concentrate, a

class 1 misdemeanor. The district court entered a two‑year deferred

judgment and sentence (DJS) on the felony and imposed a

concurrent two‑year probation sentence on the misdemeanor.

¶3 The conditions of Ward’s sentence included (1) no drugs or

alcohol; (2) no marijuana at the discretion of probation;

(3) substance abuse monitoring at the discretion of probation; and

(4) alcohol and substance abuse evaluation and treatment. The

DJS agreement included an added condition that Ward not commit

new offenses during the term of the DJS. Finally, because he was

being supervised by probation, Ward had to comply with additional

conditions, including (1) notifying probation of any changes in his

address or employment; (2) maintaining suitable employment;

1 (3) obtaining written permission from the court or probation before

leaving Colorado; and (4) complying with any other requirements of

probation, including answering probation’s reasonable questions.

B. Revocation of the DJS

¶4 Between 2017 and 2019, the probation department filed four

complaints alleging the following violations of Ward’s probation and

DJS: (1) he committed a new offense of driving under the influence;

(2) he tested positive for marijuana thirteen times; (3) he failed to

submit for substance abuse testing twenty times; (4) he twice failed

to respond to probation’s request for an email status update; (5) he

did not return to Colorado as required by his approved travel

permit; (6) he failed to provide verification of his home address and

employment; (7) he provided a false home address; and (8) he left

Colorado without permission and his whereabouts were unknown.

¶5 In 2019, Ward admitted to the complaints. The district court

revoked and terminated his DJS and entered the felony conviction

for possession with intent to manufacture or distribute marijuana

or marijuana concentrate. It also revoked and terminated

probation. The court did not impose any new sentences, meaning

2 Ward had completed his sentence but had the felony conviction on

his record.

C. Postconviction Motion

¶6 Ward’s postconviction counsel timely filed a Crim. P. 35(c)

motion asserting two claims based on Ward’s alleged use of medical

marijuana during his DJS and probation. He first argued that his

DJS was revoked on unconstitutional grounds because, under

Walton v. People, 2019 CO 95 — which was pending in the supreme

court when Ward admitted to the violations — his alleged

marijuana-related violations were based on an impermissible

application of the probation conditions statute,

3 § 18-1.3-204(2)(a)(VIII), C.R.S. 2025, which permitted him to use

medical marijuana while on probation.1

¶7 Second, Ward asserted that his admission to violating the DJS

and probation was not knowing, voluntary, and intelligent because

(1) he was unaware that, under the holding in Walton, the

marijuana-related violations he admitted to were predicated on an

1 In Walton v. People, 2019 CO 95, the supreme court interpreted

section 18-1.3-204(2)(a)(VIII), C.R.S. 2019, which provided that as a condition of probation, a district court could

require that the defendant . . . [r]efrain from . . . any unlawful use of controlled substances, as defined in section 18-18-102(5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless . . .

(B) The court determines, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section 18-1-102.5.

See Walton, ¶ 12. The supreme court held, among other things, that the plain language of the statute “creates a presumption that a defendant may use medical marijuana while serving a sentence to probation unless a statutory exception applies.” Id. at ¶ 2.

4 unconstitutional application of the probation conditions statute;

and (2) had he been aware of this, he would not have admitted to

the violations and instead would have insisted on a revocation

hearing.

¶8 The postconviction court denied Ward’s motion without

specifically addressing his claim that his admission was not

knowing, voluntary, and intelligent.

¶9 Ward appealed. A division of this court affirmed the denial of

his first claim and reversed and remanded for a hearing on his

claim that his admission was not knowing, voluntary, and

intelligent because he had not been advised of the applicability of

Walton. People v. Ward, (Colo. App. No. 22CA1820, Dec. 21, 2023)

(not published pursuant to C.A.R. 35(e)).

D. Postconviction Hearing and Ruling

¶ 10 At the beginning of the hearing on remand, the parties and the

postconviction court agreed that the issue before the court was

whether plea counsel had rendered ineffective assistance by failing

to advise Ward of the implications of Walton.

¶ 11 Plea counsel and Ward testified at the hearing. Plea counsel

testified that he had not advised Ward of the implications of Walton

5 because he was unaware that the issue was pending in the

Colorado Supreme Court. And, prompted by a question from

postconviction counsel, plea counsel also testified that he had not

advised Ward that under section 18-1.3-102(2), C.R.S. 2025, the

district court had discretion to continue Ward’s DJS despite his

admission to the violations. Indeed, counsel said he was not aware

of this statutory provision when he represented Ward.

¶ 12 Plea counsel further testified that, after lengthy discussions,

he advised Ward not to proceed to a revocation hearing because

(1) he saw no possibility of success at a hearing due to the

numerous alleged violations for which the court could revoke

Ward’s DJS and probation; and (2) Ward risked a harsher penalty

after an unsuccessful hearing than that which the prosecution was

requesting, which was to enter the felony and discharge Ward from

probation without any new sentences imposed.

¶ 13 Ward confirmed during his own testimony that plea counsel

had not advised him of Walton or section 18-1.3-102(2). He also

testified that he would have proceeded to a revocation hearing had

he been properly advised because his “primary goal” was to avoid a

6 felony conviction. Ward conceded, however, that there were

multiple alleged violations that he could not refute.

¶ 14 Ward’s postconviction counsel argued that plea counsel

performed deficiently by failing to advise Ward of Walton and

section 18-1.3-102(2). This failure, postconviction counsel argued,

prevented Ward from making a knowing, voluntary, and intelligent

admission to the violations and, moreover, prejudiced him because,

had he been adequately advised, Ward would have proceeded to a

hearing instead of making an admission.

¶ 15 At the conclusion of the hearing and in a subsequent written

order, the postconviction court denied Ward’s ineffective assistance

claims based on Walton and section 18-1.3-102(2) and found that

he had admitted to the probation violations knowingly, voluntarily,

and intelligently. The court found that plea counsel’s testimony

was credible, but Ward’s was not. As to both claims, the court

found that Ward had failed to establish both prongs of the

ineffective assistance of counsel test.

II. Discussion

¶ 16 The only claim that Ward reasserts on appeal is that his plea

counsel was ineffective because, due to counsel’s failure to advise

7 him under section 18-1.3-102(2), his admission to the probation

violations was not knowing, voluntary, and intelligent.2

¶ 17 We acknowledge that in his opening and reply briefs, Ward

references plea counsel’s testimony that he was unaware that Ward

was potentially constitutionally entitled to use medical marijuana

while on probation. But, beyond that, Ward makes no argument

regarding his ineffective assistance claim under Walton. We

therefore deem his claim under Walton abandoned. See People v.

Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.

A. Standard of Review

¶ 18 The denial of a Crim. P. 35(c) motion after an evidentiary

hearing is a mixed question of fact and law. People v. Corson, 2016

CO 33, ¶ 25. We defer to the postconviction court’s factual findings

if they are supported by the record but review de novo the court’s

2 Citing People v. Notyce, 2014 COA 52, ¶ 2, section 16-5-402,

C.R.S. 2025, and Crim. P. 35(c)(3)(I), the People argue — albeit in a footnote — that we “may not address” this claim because Ward did not raise it in his written postconviction motion, it is outside the limited scope of the remand, and it is untimely. We reject this argument because Ward raised the issue at the postconviction hearing, and the postconviction court ruled on it in both its oral and written orders. See People v. Huggins, 2019 COA 116, ¶ 17 (an issue can be preserved for appeal if raised during a postconviction hearing and ruled on by the postconviction court).

8 legal conclusions. Id. The postconviction court determines the

weight and credibility to be given to the testimony of witnesses in a

Crim. P. 35(c) hearing. People v. Curren, 228 P.3d 253, 258 (Colo.

App. 2009). Accordingly, “[w]here the evidence in the record

supports the findings and holding of the postconviction court that

presided over an evidentiary hearing, the judgment will not be

disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27.

B. Ineffective Assistance of Counsel Law

¶ 19 A criminal defendant is constitutionally entitled to effective

assistance of counsel. Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003). To succeed on an ineffective assistance claim, the defendant

must first establish, by a preponderance of the evidence, that

counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness. Strickland v. Washington,

466 U.S. 668, 687-88 (1984); Dunlap v. People, 173 P.3d 1054,

1061-63 (Colo. 2007). And second, the defendant must establish a

reasonable probability that, but for counsel’s deficient performance,

the result of the proceeding would have been different. Strickland,

466 U.S. at 694; Dunlap, 173 P.3d at 1063. In the context of a

guilty plea, the prejudice prong requires a defendant to “show that

9 there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to

trial.” People v. Sifuentes, 2017 COA 48M, ¶ 20 (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985)).

¶ 20 A postconviction court may reject an ineffective assistance

claim if the defendant fails to demonstrate either deficient

performance or prejudice. See People v. Aguilar, 2012 COA 181,

¶ 9.

C. Section 18-1.3-102(2)

¶ 21 If a defendant complies with the conditions of his DJS

throughout the deferral period, the district court must withdraw the

guilty plea and dismiss the charges underlying the DJS. Williams v.

People, 2019 CO 101, ¶ 21. “But, if the defendant violates ‘any

condition regulating the conduct of the defendant,’ the court ‘shall

enter judgment and impose sentence upon the guilty plea.’” Id. at

¶ 22 (quoting § 18-1.3-102(2)). Generally, a court does not have

discretion whether to revoke a DJS once it finds that the defendant

has violated the terms of the DJS; rather, revocation is required.

DePriest v. People, 2021 CO 40, ¶ 14. However, there is a limited

statutory exception to this rule:

10 [I]f the offense is a violation of article 18 of this title 18 [a drug offense], the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment.

§ 18-1.3-102(2).

D. Analysis

¶ 22 Even if we assume that Ward sufficiently established deficient

performance with respect to plea counsel not advising him

regarding the district court’s discretion to continue his DJS under

section 18-1.3-102(2), we conclude that he failed to sufficiently

establish prejudice.

¶ 23 At the hearing, the postconviction court specifically limited the

prejudice issue to whether, had he been properly advised of the

court’s discretion under section 18-1.3-102(2), Ward would have

proceeded to a revocation hearing instead of admitting to the

violations. In its oral and written orders denying the claim, the

court found that a proper advisement would not have altered the

11 outcome and that a reasonable person would not have proceeded to

a hearing under the circumstances Ward was facing. As support

for this conclusion, the court observed that Ward had admitted at

the hearing that there were multiple alleged violations he could not

defend against; Ward had received multiple continuances between

the individual probation complaints but failed to become compliant;

and Ward would have faced possible additional sanctions following

a hearing.

¶ 24 On appeal, Ward largely focuses on plea counsel’s deficient

performance and does not directly challenge the postconviction

court’s prejudice findings. Rather, he generally states in his

opening brief that, “[h]ad he received the effective assistance of

counsel, there is a reasonable probability that he would have

proceeded to a hearing and asked the Court to continue his [DJS]

over the prosecution’s objection even if [he] were found to have

violated his [DJS].” But Ward provides no argument or analysis

developing this assertion. See People v. Lientz, 2012 COA 118, ¶ 30

(rejecting a conclusory claim because parties must present

reasoned analysis for their appellate assertions and not rely on

conclusory allegations). To the extent Ward expands on his

12 prejudice argument in his reply brief, we will not consider those

arguments. See In re Marriage of Dean, 2017 COA 51, ¶ 31 (“We do

not consider the arguments mother makes for the first time in her

reply brief or those that seek to expand upon the contentions she

raised in her opening brief.”).

¶ 25 Furthermore, Ward failed to present objective evidence to

corroborate his testimony that he would have insisted on going to a

revocation hearing but for plea counsel’s deficient advice. See

Sifuentes, ¶ 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.”). And, beyond new

assertions in his reply brief, he did not argue that “a decision to

reject the plea bargain would have been rational under the

circumstances.” Id. (citation omitted).

¶ 26 Regardless, the record supports the postconviction court’s

finding that Ward failed to establish prejudice for his ineffective

assistance claim based on section 18-1.3-102(2). Plea counsel

testified that he advised Ward not to proceed to a revocation

hearing due to the numerous alleged violations and the risks

associated with an adverse finding on even one of the allegations,

13 and the district court credited plea counsel’s testimony. Further,

Ward admitted that there were violations against which he could

not defend. Considering the number of alleged violations in the

complaints, Ward’s admission that he could not defend against all

of them, and the risk that he faced additional penalties if he went to

a hearing, Ward did not demonstrate a reasonable probability that

he would have gone to a hearing but for plea counsel’s deficient

advice.

¶ 27 Because Ward failed to establish prejudice, he did not

sufficiently prove his ineffective assistance claim based on his plea

counsel’s failure to advise him regarding the district court’s

discretion under section 18-1.3-102(2) before he admitted to the

probation violations.

III. Disposition

¶ 28 The order is affirmed.

JUDGE YUN and JUDGE SCHOCK concur.