Peo v. Wardak

• Court: Colorado Court of Appeals
• Decided: April 2, 2026
• Docket: 25CA0106
• Status: Unpublished

Opinion

25CA0106 Peo v Wardak 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0106 Jefferson County District Court No. 20CR3467 Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Omar Wardak,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE TOW Welling and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Tara Jorfald, Maya Arriaga Martin, Lakewood, Colorado, for Defendant-Appellant ¶1 Defendant, Omar Wardak, appeals the district court’s order

denying his Crim. P. 35(c) motion alleging ineffective assistance of

counsel. We affirm.

I. Background

¶2 Wardak pleaded guilty to sexual assault on a child by one in a

position of trust. The district court sentenced Wardak to an

indeterminate term of ten years to life of Sex Offender Intensive

Supervised Probation (SOISP) with a ninety-day jail sentence as a

condition of probation. Following a probation revocation hearing,

the court revoked Wardak’s SOISP and resentenced him to an

indeterminate term of two years to life in the custody of the

Department of Corrections (DOC) followed by a parole term of ten

years to life.

¶3 Wardak filed a Crim. P. 35(c) motion. He argued in the motion

that his plea counsel provided ineffective assistance by failing to

investigate and present mitigating information in support of plea

negotiations. The district court denied this claim without a hearing.

II. Analysis

¶4 Wardak contends that the district court erred by denying his

Crim. P. 35(c) claim without a hearing. Specifically, he contends

1 that he was entitled to a hearing on his claim that his plea counsel

was ineffective because of counsel’s failure to properly investigate

his familial, cultural, and neurodevelopmental circumstances. He

further contends that had his plea counsel done so, counsel would

have been able to present mitigating information to the prosecution

in plea negotiations, showing that Wardak was unlikely to complete

SOISP, such that the People would have offered a plea deal with a

determinate DOC sentence. We discern no error.

A. Applicable Law and Standard of Review

¶5 We apply the two-prong test articulated in Strickland v.

Washington, 466 U.S. 668 (1984), when evaluating claims of

ineffective assistance of trial counsel. Ardolino v. People, 69 P.3d

73, 76 (Colo. 2003). To prevail on such a claim, the defendant must

ultimately show that (1) trial counsel’s performance was deficient,

and (2) the deficient performance prejudiced them. Strickland, 466

U.S. at 686. To be entitled to a hearing on a postconviction motion,

a defendant need not set forth the evidentiary support for their

allegations, but must assert facts that, if true, would form the basis

for relief. White v. Denv. Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).

2 ¶6 To adequately plead deficient performance, a defendant must

allege facts that would demonstrate that counsel’s representation

“fell below an objective standard of reasonableness.” Strickland,

466 U.S. at 688. “[A] court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689 (citation

omitted). To adequately plead prejudice, a defendant must allege

facts that would show a reasonable probability that, absent the

errors, “the result of the proceeding would have been different.” Id.

at 694.

¶7 Because a defendant must ultimately prove both deficient

representation and prejudice, denial of a Crim. P. 35(c) motion

without a hearing is proper if “the existing record establishes that

the defendant’s allegations, even if proven true, would fail to

establish one or the other prong of the Strickland test.” Ardolino, 69

P.3d at 77. “[W]here the defendant alleges sufficient facts that, if

true, may warrant relief, the court must conduct an evidentiary

hearing.” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7. But bare

3 and conclusory allegations do not warrant a hearing. People v.

Phipps, 2016 COA 190M, ¶ 18.

¶8 A defendant’s right to effective assistance of counsel extends to

the plea bargaining process. Missouri v. Frye, 566 U.S. 134, 144

(2012). Thus, a claim alleging ineffective assistance during plea

negotiations is subject to Strickland’s two-part analysis. Hill v.

Lockhart, 474 U.S. 52, 58 (1985).

¶9 We review de novo a district court’s denial without a hearing of

a Crim. P. 35(c) motion. People v. Davis, 2012 COA 14, ¶ 6.

B. Application

¶ 10 Courts have recognized ineffective assistance claims regarding

plea negotiations in a few contexts: (1) counsel’s failure to initiate

plea negotiations; (2) counsel’s failure to convey an actual plea offer

to the defendant; and (3) counsel’s erroneous or incomplete advice

about a plea offer. See People v. Delgado, 2019 COA 55, ¶¶ 16-18;

People v. Sifuentes, 2017 COA 48M, ¶¶ 17-18; People v. Sherman,

172 P.3d 911, 913-14 (Colo. App. 2006). Wardak does not allege

that his counsel was deficient under any of these theories.

¶ 11 Instead, Wardak alleges that his plea counsel was

constitutionally deficient because his counsel did not sufficiently

4 investigate, and then provide to the prosecution, mitigating

information in the hopes of securing a plea offer that would entail a

determinate sentence instead of the indeterminate sentence Wardak

accepted. Wardak cites no Colorado authority recognizing this

novel theory of ineffective assistance of counsel in plea negotiations.

¶ 12 More importantly, however, Wardak’s allegations of prejudice

are bare and conclusory. He merely alleges that if the prosecutor

had known he was not likely to complete SOISP, there is a

reasonable possibility the prosecutor would have offered a plea to a

charge that did not involve indeterminate sentencing. Nothing

more.

¶ 13 No statement from the prosecutor corroborated this claim.

Nor does anything in the motion or the record suggest it is true,

particularly in light of the facts of the case — which involved

Wardak having unprotected sex with a twelve-year-old girl whom he

had known for less than a week.

¶ 14 In short, because Wardak’s allegations of prejudice were

wholly conclusory, he was not entitled to an evidentiary hearing.

See Phipps, ¶ 18. Therefore, the district court did not err by

denying the motion without a hearing.

5 III. Disposition

¶ 15 The order is affirmed.

JUDGE WELLING and JUDGE LIPINSKY concur.