The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY April 30, 2026
2026COA31
No. 23CA1597, People v. Evans — Attorneys and Clients — Ineffective Assistance of Counsel — Plea Bargains
In this postconviction case, the defendant argued that his
lawyer’s ineffective assistance caused him to reject a “soft” plea offer
during plea negotiations; as a result, no firm offer materialized and
he proceeded to trial, after which he was convicted of felony murder
and sentenced to life in prison without parole. After a hearing, the
district court rejected the ineffective assistance of counsel claim,
reasoning that the defendant could not establish prejudice in the
absence of a firm offer.
A division of the court of appeals, following federal case law on
this issue, concludes that the absence of a firm offer does not
preclude a claim that counsel’s ineffective assistance prevented the
defendant from entering a plea pursuant to a plea offer. To prevail on that version of an ineffective assistance of plea counsel claim,
the defendant must make a threshold showing that, but for
counsel’s deficient performance, there is a reasonable probability
that the prosecution would have made a firm offer.
Because the district court applied the wrong legal standard,
the division reverses the district court’s denial of the claim and
remands for further proceedings. The division also reverses the
district court’s summary denial of a second ineffective assistance of
counsel claim and remands for an evidentiary hearing on that
claim. COLORADO COURT OF APPEALS 2026COA31
Court of Appeals No. 23CA1597 Arapahoe County District Court No. 06CR1201 Honorable Ryan J. Stuart, Judge Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Evans,
Defendant-Appellant.
ORDERS REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur
Announced April 30, 2026
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Evans, was found guilty of burglary and
felony murder in connection with a home invasion that ended with
the shooting death of the homeowner. The jury specifically found
that Evans was not the shooter, and, indeed, the evidence did not
conclusively establish that he was present at the scene of the
burglary.
¶2 Evans later moved for postconviction relief alleging, primarily,
that his lawyer had provided ineffective assistance during plea
negotiations by failing to advise him of his potential exposure as a
complicitor (the complicity claim) and of his parole eligibility (the
parole eligibility claim). Though the claims were presented as
somewhat distinct, the gist of the motion was that, together,
counsel’s failures impeded Evans’s ability to properly evaluate a
“soft” plea offer, so he rejected it.
¶3 The district court issued an order denying the parole eligibility
claim after a hearing and, in a separate order, summarily denied
the intertwined complicity claim. We conclude that the district
court misapplied the law in denying the parole eligibility claim, and
that it should have held a hearing on the complicity claim.
1 Accordingly, we reverse the court’s orders and remand the case for
further proceedings.1
I. Background
A. Trial Proceedings
¶4 In October 2005, Derek Lanctot and two accomplices broke
into the victim’s home. During the burglary, Lanctot and one of the
accomplices shot and killed the victim.
¶5 A few months later, police searched Evans’s apartment in
connection with an investigation of an unrelated armed robbery.
They found a friend of Evans’s, also a suspect in the armed robbery,
and, near the friend, a gun later determined to have been used in
both the armed robbery and the October burglary-homicide.
¶6 During a series of police interviews, Evans eventually admitted
knowledge of a plan to burglarize the victim’s home and identified
Lanctot and two others (not the friend involved in the armed
robbery) as the perpetrators. Evans said that he had helped one of
1 Evans also asserted a claim that his life-without-parole sentence
for felony murder violated the Eighth Amendment, a claim the district court denied without a hearing. In light of our disposition, we decline to address this issue on appeal. Evans can reassert his challenge to his sentence if there is a subsequent appeal in this case.
2 the accomplices buy a gun the night before the burglary, but he told
police that he had decided not to participate in the crime because
he did not have his own gun. He had hoped to loan the group his
car, though, because it did not have a license plate, but the car
would not start. He repeatedly denied going to the victim’s home.
¶7 A grand jury returned an indictment charging Evans and
Lanctot with first degree felony murder, second degree murder,
burglary, and conspiracy to commit burglary. (One of the
accomplices whom Evans identified died in December 2005. The
other was not charged.)
¶8 About two months before trial, Lanctot pleaded guilty,
pursuant to a plea agreement, to conspiracy to commit second
degree murder in exchange for a stipulated sentence of twenty-five
years in prison.2
2 Lanctot’s twenty-five-year sentence imposed in Arapahoe County
Case No. 06CR1193 was ordered to run concurrently with a sixteen-year sentence he had received a year earlier in Arapahoe County Case No. 05CR3211 for a shooting he committed about two weeks after the October burglary-homicide. We may take judicial notice under CRE 201(b) of the court filings in these related cases. See Doyle v. People, 2015 CO 10, ¶ 12.
3 ¶9 Evans proceeded to trial. In opening statement, the
prosecutor told the jury that two witnesses — Lanctot and an
acquaintance of Evans’s from the neighborhood — would place
Evans at the victim’s home on the night of the crimes. But Lanctot
refused to testify and the acquaintance recanted his earlier
statement to police implicating Evans. As a result, the gun found in
Evans’s apartment was the only direct evidence linking him to the
scene of the crimes. So, during closing argument, the prosecution
pressed a complicity theory, telling the jury that Evans “didn’t even
have to be on the premises to be guilty” of felony murder. As the
prosecutor explained, Evans only “needed to be aiding and abetting
the burglary, and in the course of that burglary, somebody’s death
was caused.”
¶ 10 During its deliberations, the jury asked several questions
concerning the application of the complicity instruction to burglary,
4 the predicate offense for felony murder.3 On the fifth day of
deliberations, the jury returned its verdict: It acquitted Evans of
second degree murder but found him guilty of felony murder and
the burglary counts. The jury found that Evans had not used or
possessed a deadly weapon during the commission of those
offenses.
¶ 11 The court imposed a mandatory sentence of life without parole
for the felony murder conviction.
3 Specifically, the jury asked the following questions:
• “Do we have to decide that the defendant actually entered the building to be guilty of [first] degree burglary or do we just have to show that he was involved in the planning and took overt steps to assist its happening?” • “Part of the reasoning for this question [about the interplay between instructions 23 and 25] is the prosecutor’s remarks . . . [that] they don’t have to prove that [Evans] actually went and participated, only that he was knowingly willing to.” • “Does that mean that if we feel that the defendant satisfies the elements in [the complicity instruction] that we can use the complicity theory for a conviction?” • “Can you explain the difference between a complicitor and conspirator?” • “We are having a disagreement on how to understand [the complicity instruction]. . . . Can you clarify the definition of ‘accountable’ as it applies to this instruction?” • Does “element 4 [of instruction 23,] ‘committed the crime of first degree burglary,’” include committing the crime as a complicitor?
5 B. Postconviction Proceedings
¶ 12 After Evans’s convictions were largely affirmed on direct
appeal,4 he filed a timely Crim. P. 35(c) motion.5 He alleged, as
relevant here, that trial counsel provided ineffective assistance by
failing to properly advise him about whether to accept a plea offer of
approximately twenty-five-years. Specifically, Evans claimed that
trial counsel failed (1) to explain the doctrine of complicity liability
and its potential application to his case and (2) to properly advise
him about parole eligibility. He asserted that, but for counsel’s
4 While a division of this court affirmed the convictions for first
degree murder and conspiracy to commit burglary, it vacated the conviction for first degree burglary, concluding that it must be merged with the conviction for first degree murder. People v. Evans, slip op. at 22 (Colo. App. No. 07CA2158, July 21, 2011) (not published pursuant to C.A.R. 35(f)).
5 After the trial court merged the first degree burglary conviction
into the felony murder conviction, Evans stood convicted of felony murder, then a class 1 felony, and conspiracy to commit burglary, a class 4 felony. The Crim. P. 35(c) motion was timely with respect to the felony murder conviction, but not the conspiracy to commit burglary conviction. See § 16-5-402(1), C.R.S. 2025 (except with respect to a class 1 felony, a Crim. P. 35(c) motion must be filed within three years of a defendant’s conviction for a felony offense). Accordingly, the conspiracy to commit burglary conviction is not affected by the postconviction proceedings.
6 deficient performance in both respects, he would have accepted the
plea offer and avoided a life sentence.
¶ 13 In an initial order, the district court denied the complicity
claim without a hearing and granted a hearing on the parole
eligibility claim. After holding an evidentiary hearing, the court
issued a second order denying the parole eligibility claim, on the
ground that Evans failed to establish that the prosecution had
made a firm plea offer.
II. Ineffective Assistance of Counsel Claims
¶ 14 Evans contends that the court misapplied the law in denying
his parole eligibility claim because he did not have to establish the
existence of a firm offer, only a reasonable probability that, but for
counsel’s deficient performance, the parties’ negotiations would
have resulted in a firm offer that he would have accepted. And he
contends that the court erred by denying his complicity claim
without a hearing because he alleged facts that, if true, would
establish ineffective assistance of counsel. We agree with Evans on
both counts.
7 A. Legal Principles and Standard of Review
¶ 15 A criminal defendant has a constitutional right to the effective
assistance of counsel. U.S. Const. amend. VI; Colo. Const. art. II,
§ 16; People v. Rainey, 2023 CO 14, ¶ 1. To prevail on an ineffective
assistance of counsel claim, a defendant must show that
(1) counsel’s performance was deficient, meaning it fell below an
objective standard of reasonableness; and (2) counsel’s deficient
performance prejudiced the defense, meaning there is a reasonable
probability that, but for counsel’s errors, the outcome of the
proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984).
¶ 16 The court may deny a Rule 35(c) motion without a hearing
only if the defendant’s allegations are bare and conclusory; the
allegations, even if true, do not establish deficient performance or
prejudice; or the record refutes the defendant’s claims directly.
People v. Duran, 2015 COA 141, ¶ 9; see Ardolino v. People, 69 P.3d
73, 77 (Colo. 2003).
¶ 17 We review the summary denial of a Rule 35(c) motion de novo.
People v. Delgado, 2019 COA 55, ¶ 6. When the court denies a Rule
35(c) motion after an evidentiary hearing, however, we review its
8 ruling as a mixed question of fact and law. See People v. Sharp,
2019 COA 133, ¶ 12. Under this standard, we defer to the court’s
findings of fact if they have record support, but we review its legal
conclusions — including “the ultimate determinations on
Strickland’s performance and prejudice prongs” — de novo. Id.
(citation omitted).
B. Parole Eligibility Claim
¶ 18 The question presented with respect to the parole eligibility
claim is whether, to demonstrate prejudice, Evans had to establish
that the prosecution had extended a formal or “firm” plea offer. He
says no, and we agree.
1. Crim. P. 35(c) Proceedings
¶ 19 Evans was twenty years old at the time of the crime. In his
Rule 35(c) motion, he alleged that the prosecution extended an offer
of “approximately [twenty-five] years” in exchange for his guilty plea
to second degree murder. He said that his trial counsel failed to
properly advise him about his parole eligibility, and, as a result, he
believed he would have to serve one hundred percent of the
sentence, so he rejected the offer. He alleged that if he had known
9 that he would be “eligible for parole after service of approximately
one half” of the sentence, he would have accepted the offer.
¶ 20 The district court agreed that these allegations, if true,
demonstrated deficient performance by trial counsel that prejudiced
Evans. Accordingly, it granted a hearing on the claim.
¶ 21 At the hearing, Evans testified more specifically that he spoke
with counsel about a twenty-seven-year plea offer on two occasions,
for a couple minutes each time. Counsel did not explain the
concept of parole or advise Evans that he would be eligible for
parole under the offer, so he thought he would “be [fifty] when [he]
g[o]t home,” and he told counsel he would not “tak[e] that deal.”
Counsel never dispelled Evans’s misconception about the amount of
time he would serve under the offer. Indeed, according to Evans,
she advised him to reject the offer for an independent reason: there
“was no evidence to show” that he was even at the scene of the
¶ 22 Neither Evans’s trial counsel nor the prosecutor on his case
remembered much about the pretrial proceedings. They agreed that
plea negotiations in serious cases often begin with a “soft” offer to
see if the parties are generally on the same page and might reach a
10 firm agreement. They explained that this process avoids a situation
where the prosecutor clears an offer with victims or law
enforcement but later learns that the parties are too far apart to
reach a disposition.
¶ 23 Trial counsel did not recall plea negotiations, but she
acknowledged that her notes, which were admitted as exhibits,
indicated that the prosecution had extended some form of a twenty-
seven-year offer, which Evans rejected. The evidence also showed
that, at a hearing in June 2007, a month before trial and shortly
after Lanctot pleaded guilty, trial counsel informed the court that
she was “in plea negotiations with the prosecution” and there had
“been some movement” toward a disposition, but further
discussions were needed before the parties could “firm up an offer.”
¶ 24 The prosecutor likewise had no recollection of plea
negotiations. He testified that he reviewed his file and did not see
any notes indicating that he had made even a “soft” offer in the
case.
¶ 25 The district court found that “‘soft’ negotiations did occur” but
that a firm offer was never extended. The court concluded that the
absence of a firm offer meant Evans could not establish either
11 deficient performance or prejudice. According to the court, trial
counsel did not have an obligation to advise Evans about a mere
“possible” twenty-seven-year offer, and, because a firm offer was
never extended, trial counsel’s performance, even if deficient, could
not have been the reason Evans did not plead guilty.
2. The District Court Applied the Wrong Legal Standard
¶ 26 A defendant’s right to effective assistance of counsel extends to
the plea bargaining process. Missouri v. Frye, 566 U.S. 134, 144
(2012); Lafler v. Cooper, 566 U.S. 156, 162 (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). To establish prejudice in the context of plea negotiations,
the defendant must show a reasonable probability that “the
outcome of the plea process would have been different with
competent advice.” Lafler, 566 U.S. at 163. “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome,” which is a standard “somewhat lower” than
preponderance of the evidence. Strickland, 466 U.S. at 694.
¶ 27 In one version of an ineffective assistance of plea counsel
claim, the defendant alleges that, based on the incompetent advice
12 of counsel, he rejected a formal plea offer and was convicted after
the ensuing trial. See, e.g., Delgado, ¶¶ 10-11. A defendant
establishes prejudice in that case by showing a reasonable
probability that, but for counsel’s deficient advice, he would have
accepted the offer, it would have been presented to and enforced by
the court, and his sentence under the offer would have been less
severe than the one imposed after the jury’s guilty verdict. Lafler,
566 U.S. at 164.
¶ 28 But another version of the claim is also cognizable — that
counsel’s deficient performance prevented a favorable firm offer
from being extended in the first place. See, e.g., Byrd v. Skipper,
940 F.3d 248, 256-57 (6th Cir. 2019). A defendant raising this
version of an ineffective assistance of plea counsel claim “faces a
formidable standard” because, in addition to establishing the other
prejudice elements, he must make a threshold showing — that
there is a “reasonable probability that but for counsel’s errors, [he]
would have received a [firm] plea offer.” Id. at 257.
¶ 29 Two cases with facts similar to those presented here illustrate
the concept. In United States v. Gordon, the prosecution made an
informal offer to resolve the defendant’s charges with a
13 recommended sentence of eighty-four months. 156 F.3d 376, 378
(2d Cir. 1998). Based on counsel’s deficient advice about possible
sentencing exposure, the defendant rejected the informal offer, and
after a trial, he was sentenced to 210 months in prison. Id. at 377-
78. He later asserted an ineffective assistance of plea counsel
claim. The prosecution countered that the defendant could not
establish prejudice because no formal offer had been extended. Id.
at 380. The court rejected that argument, concluding that “whether
the government had made a formal plea offer was irrelevant” — the
defendant was prejudiced because counsel’s advice deprived him of
an opportunity to “pursue further plea negotiations” and obtain a
formal offer. Id.
¶ 30 The court in United States v. Brooks reached the same
conclusion. Nos. 10-20078-JWL, 14-2624-JWL, 2015 WL 5837636,
at *4 (D. Kan. Oct. 6, 2015) (unpublished opinion). In that case,
like this one, defense counsel and the prosecutor engaged in “soft”
negotiations to avoid having the prosecutor “spin his wheels”
procuring approval “until [the] defendant’s interest was known.” Id.
But according to the defendant, counsel’s lack of advice about the
soft offer caused the negotiations to end without a firm offer. Id.
14 When the defendant asserted an ineffective assistance of counsel
claim, the prosecution defended on the ground that it had not made
a firm offer, and, therefore, the defendant could not show prejudice.
Id. at *5. The court disagreed, explaining that while “[i]t may be
more difficult for a defendant to establish the necessary prejudice in
the absence of a formal plea offer,” because the defendant must
show that the prosecution “would in fact have made a particular
offer,” the claim was not foreclosed by the lack of a formal offer. Id.
at *6; see also Delatorre v. United States, 847 F.3d 837, 846 (7th
Cir. 2017) (a defendant can establish prejudice in the absence of an
offer by showing a reasonable probability “that the prosecutor
would have actually offered him a deal had his attorney been
competent”); Barnes v. Warden of Green Haven Corr. Facility, 416 F.
Supp. 3d 152, 158 (E.D.N.Y. 2019) (holding that even absent a firm
offer, the defendant established prejudice by showing that, but for
counsel’s errors, there was a “reasonable probability that further
plea negotiations would have been pursued, that the People would
have made a plea offer with a sentence of [ten] to [twelve] years, and
that [the defendant] would have accepted it”); Flood v. United States,
345 F. Supp. 3d 599, 613 (D. Md. 2018) (explaining that where the
15 prejudice alleged is the denial of an opportunity to negotiate a plea
agreement, the defendant must show “an additional reasonable
probability that ‘the government would have in fact made him a
particular plea offer’ in the first place” (citation omitted)); United
States v. Giamo, 153 F. Supp. 3d 744, 761 (E.D. Pa. 2015) (to
establish prejudice where a firm offer was not extended, the
defendant must demonstrate a reasonable probability that “there
would ‘be a plea offer by the [g]overnment’” (citation omitted)), aff’d,
665 F. App’x 154 (3d Cir. 2016); cf. United States v. Swaby, 855
F.3d 233, 241 (4th Cir. 2017) (a defendant can establish prejudice
in the plea context by showing that, but for counsel’s errors, he
would have negotiated a more favorable plea offer); Savage v. State,
511 P.3d 249, 257 (Idaho 2022) (same).
¶ 31 Here, the district court focused on whether the prosecution
had extended a firm offer and, finding that it had not, reasoned that
the lack of a firm offer, and not counsel’s errors, precluded Evans
from accepting a plea deal. But Evans’s claim encompasses an
argument that, but for counsel’s failure to properly advise him of
the true consequences of accepting a twenty-seven-year offer, a firm
offer would have materialized. In light of the case law discussed
16 above, we conclude that the district court erred by focusing
exclusively on the existence of a firm offer.
¶ 32 This error affected the court’s analysis regarding the deficient
performance prong too. Because the court determined that Evans’s
claim required proof of a firm offer, it reasoned that counsel did not
have any duty to advise Evans about the “possible” offer. In other
words, because only a firm offer has constitutional significance,
counsel’s performance during plea negotiations was constitutionally
irrelevant until such time as a firm offer was extended.
¶ 33 That reasoning cannot be squared with well-settled law. The
right to effective assistance of counsel extends to “the plea-
bargaining process,” Lafler, 566 U.S. at 162, including the
negotiations leading to an offer, see Padilla v. Kentucky, 559 U.S.
356, 373 (2010) (“[W]e have long recognized that the negotiation of a
plea bargain is a critical phase of litigation for purposes of the Sixth
Amendment right to effective assistance of counsel.” (emphasis
added)). Neither the Colorado appellate courts nor the Supreme
Court has ever “cabined th[e] right [to effective assistance of
counsel] to negotiations that take place only after an offer has been
made.” Byrd, 940 F.3d at 255. Viewing the entire plea bargaining
17 process as a critical stage makes sense because if soft offers
generally precede firm offers, counsel’s advice about the soft offer
will often determine whether a firm offer is ultimately extended.
¶ 34 Accordingly, we conclude that the court applied the wrong
legal standard with respect to both the deficient performance and
prejudice prongs of the Strickland analysis. The question, then, is
whether, applying the correct legal standard, Evans’s claim
nonetheless fails as a matter of law. If it does, we can affirm the
district court’s order on other grounds. See People v. Taylor, 2018
COA 175, ¶ 8.
3. Applying the Correct Legal Standard, Evans’s Claim Does Not Fail as a Matter of Law and Therefore a Remand Is Required
¶ 35 On this record, we cannot say that, if analyzed under the
proper legal standard, Evans’s claim necessarily fails.
¶ 36 Turning first to deficient performance, the claim fails as a
matter of law only if counsel never has an obligation to advise a
defendant about parole eligibility. That is the People’s argument on
appeal, but we think that argument goes too far. Whether such an
obligation exists depends on “the factual circumstances of the
particular case,” including whether parole eligibility advice was
18 required under the prevailing standards of minimally acceptable
professional conduct at the relevant time, People v. Chalchi-Sevilla,
2019 COA 75, ¶ 19 (citation omitted), and whether counsel “ha[d]
reason to believe” that the collateral issue of parole eligibility “[wa]s
highly significant to [the] client’s decision” to accept or reject an
offer, People v. Joslin, 2018 COA 24, ¶ 11.
¶ 37 Some evidence presented at the Rule 35(c) hearing suggested
that counsel had a duty to advise Evans about his parole eligibility.
Evans’s expert testified that when a young person is confronted
with an offer of a sentence that amounts to “more [years] than [he
has] lived,” defense counsel has an “even . . . higher obligation” to
explain parole eligibility, because the difference between the
sentence imposed and the sentence likely to be served “is a huge
influence on whether [the client] accept[s] the plea bargain.”
¶ 38 Evans’s testimony suggested that counsel knew or should
have known that parole eligibility was an important factor in his
decision to reject the “possible” offer. Evans explained that because
he had no prior adult convictions, he misunderstood how much
time he would serve under a twenty-seven-year offer — a
misunderstanding that was communicated to counsel when he told
19 her that he could not accept the deal because he would be fifty
years old upon his release from prison. And he said that, if he had
known about parole eligibility, he would have accepted a twenty-
seven-year offer “[a] million percent.”
¶ 39 Because the district court determined that counsel had no
duty to advise on a “possible” offer, it did not make any findings
concerning the importance of parole eligibility in this case. And
given the evidence, we cannot say how the district court would have
resolved this prong of the Strickland test.
¶ 40 That brings us back to the prejudice prong. Applying the
correct legal standard, the first question is whether the evidence
could support a finding that, absent counsel’s errors, there is a
reasonable probability that the prosecution would have extended a
firm offer. The district court could have made such a finding.
¶ 41 First, Evans’s expert testified that “most soft offers become
hard offers if the client comes back and says, ‘Yeah, I’ll take that.’”
That testimony comports with common sense. If the prosecution
floated a soft offer of twenty-seven years to make sure the parties
were on the same page, and Evans expressed an interest in
20 accepting the offer, it seems likely that a firm offer would have been
forthcoming.
¶ 42 Second, the same prosecutor extended a twenty-five-year offer
to Lanctot, the shooter, in exchange for his plea to conspiracy to
commit second degree murder. (In fact, because the plea agreement
required that the sentence run concurrent to a previously imposed
sentence, as discussed supra ¶ 8 n.2, the twenty-five-year sentence
was effectively a ten-year sentence.) An offer to a codefendant can
be strong evidence that the prosecution would have made a similar
offer to the defendant. See, e.g., Byrd, 940 F.3d at 258; see also
United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015)
(a defendant can show a reasonable probability that he could have
negotiated a better plea offer by identifying cases where the
prosecution extended more favorable offers to similarly situated
defendants).
¶ 43 The next question is whether the evidence could support a
finding that, if he had been competently advised, Evans would have
accepted a twenty-seven-year offer. The district court did not
answer this question, and the People do not address it on appeal.
The issue is complicated by the fact that Evans asserted two claims
21 concerning counsel’s performance that he said deprived him of the
ability to properly evaluate the attractiveness of the soft offer —
failure to inform him of parole eligibility and failure to advise him of
his exposure under a complicity theory of liability. (At oral
argument, the People acknowledged that these two claims “fold into
each other.”) The court granted a hearing only on the first claim
but for reasons that we explain below, we conclude that Evans was
entitled to a hearing on the complicity claim as well.
¶ 44 Even setting aside the complicity claim, the record contains
some evidence corroborating Evans’s testimony that, but for
counsel’s failure to correct his misunderstanding about parole
eligibility, he would have accepted the offer. See People v. Sifuentes,
2017 COA 48M, ¶ 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.”).
¶ 45 Disparities between the actual sentence the defendant faced
and the sentence he could have received if his counsel had been
effective “are an important factor in the reasonable-probability
inquiry where a defendant claims he would have accepted a plea
but for his counsel’s error.” Baker v. United States, 109 F.4th 187,
22 197 (3d Cir. 2024); cf. People v. Carmichael, 206 P.3d 800, 807
(Colo. 2009) (considering the disparity between the sentence
exposure as represented by defense counsel and the actual
exposure the defendant faced by going to trial). Here, the disparity
was indisputably substantial: twenty-seven years (not accounting
for parole eligibility) versus life in prison without the possibility of
parole. Even considering just the disparity between the possible
offer’s sentence as represented by counsel — twenty-seven years —
and the actual period of incarceration Evans said he would likely
serve — about fifteen years — that forty-five percent difference
provides some corroboration of Evans’s testimony.
¶ 46 Moreover, Evans was “affirmatively pursuing a plea bargain,” a
circumstance that “lends credibility to [his] testimony that he was
amenable to a plea bargain and would have accepted an offer, had
he been properly counseled.” Carmichael, 206 P.3d at 807. In fact,
defense counsel’s notes showed that Evans had made a counteroffer
of fifteen years, which corroborates his testimony that he would
have taken the twenty-seven-year offer if he had known that, as a
practical matter, it could result in a sentence closer to fifteen years.
23 ¶ 47 Finally, the expert testified that once an offer is accepted, it is
rare for a prosecutor to withdraw it or for the court to reject it.
¶ 48 In sum, we conclude that the district court applied the wrong
legal standard in denying Evans’s parole eligibility claim. And
because, on this record, the claim does not fail as a matter of law,
we must remand the case to the district court for further
proceedings. On remand, the court should determine whether, but
for counsel’s errors, there is a reasonable probability that (1) a firm
and lawful offer6 would have been extended; (2) Evans would have
accepted the offer; (3) the offer would have been presented to and
accepted by the court; and (4) Evans’s sentence under the plea offer
would have been less severe than the sentence that was imposed.
See Lafler, 566 U.S. at 164.
6 The district court found that the prosecution could not have
offered a twenty-seven-year sentence in exchange for a guilty plea to felony murder because, at the time of Evans’s trial, a felony murder conviction carried a mandatory sentence of life without parole. True, but we note that Lanctot pleaded guilty to conspiracy to commit second degree murder, a charge not included in the grand jury’s indictment, and Evans recalled that the prosecution’s soft offer was based on a plea to second degree murder.
24 C. Complicity Claim
1. Rule 35(c) Proceedings
¶ 49 The jury was instructed on felony murder in accordance with
section 18-3-102(1)(b), C.R.S. 2007, which provided that a person
commits felony murder if, “[a]cting either alone or with one or more
persons, he . . . commits or attempts to commit . . . burglary, . . .
and, in the course of or in furtherance of th[at] crime . . . , or of
immediate flight therefrom, the death of a person . . . is caused by
anyone.” Thus, if the defendant did not commit the predicate
offense (in this case, burglary), he cannot be convicted of felony
murder. Doubleday v. People, 2016 CO 3, ¶ 22.
¶ 50 The prosecution’s theory was that Evans could be held
accountable for the victim’s murder because he was an accomplice
to the burglary. Evans defended on the ground that he was not
present at the scene of the burglary, so he could not be guilty of
murder.
¶ 51 In his Rule 35(c) motion, Evans alleged that trial counsel
provided ineffective assistance by failing to explain his potential
exposure as an accomplice. He said that, as a result, he did not
understand that he could be convicted of felony murder under a
25 complicity theory. That misunderstanding, along with his lack of
information about parole eligibility, led him to reject the plea offer.
¶ 52 The district court denied this claim without a hearing.
Focusing on one allegation in the motion, the court summarized
Evans’s averments as a claim that, “because of trial counsel’s
failure to explain complicity, [he] believed he could not be convicted
of felony murder because he did not shoot the victim.” Having
framed the claim that way, the court reasoned that counsel’s failure
to explain complicity could not have prejudiced Evans because the
indictment put Evans on notice that he could be found guilty of
felony murder even if he did not shoot the victim. In other words,
as the People explained at oral argument, the district court
determined that Evans’s specific allegation — that he was unaware
he could be convicted of felony murder as a non-shooter — did not
implicate complicity at all, because even without a complicity
instruction, Evans could be convicted of felony murder as a
principal despite not shooting the victim.
2. The Court Erred by Summarily Denying the Complicity Claim
¶ 53 We might agree with the district court’s resolution of this claim
if Evans’s allegation about not being the shooter had been
26 presented in isolation. That is, if Evans had alleged only that,
because he was not properly advised, he did not know he could be
convicted of felony murder as a non-shooter, we might concur that
the indictment (and incorporated statutory elements) sufficiently
conveyed that information.
¶ 54 But in context, Evans’s claim was not that he was unaware of
his potential exposure as a principal under the felony murder
statute. His claim was that the prosecution had secured a felony
murder conviction on a complicity theory and his lawyer had never
advised him of that possibility. According to Evans, the lawyer’s
failure to explain his exposure under that alternative theory of
liability meant that he overestimated his chances at trial and, as a
result, rejected the soft offer.
¶ 55 Evans’s allegations are sufficient to warrant a hearing.
¶ 56 Defense counsel has a duty to accurately advise a client
“regarding the attractiveness of the plea bargain in relation to the
risks of going to trial.” Carmichael, 206 P.3d at 806. That duty, in
turn, effectuates the defendant’s “right to make a reasonably
informed decision whether to accept a plea offer.” Id. (quoting
United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). A lawyer who
27 fails to inform her client of the relevant law abdicates her duty
under the Sixth Amendment and performs deficiently. Lockhart,
474 U.S. at 62 (White, J., concurring in the judgment).
¶ 57 In People v. Hunt, 2016 COA 93, ¶¶ 8, 31, a division of this
court held that the defendant was entitled to a hearing on his claim
that counsel had erroneously advised him that he could be found
guilty of murder as a complicitor, resulting in his acceptance of a
plea offer. The division concluded that because the facts as
presented at the providency hearing would not have supported a
conviction under a complicity theory, “any failure on the part of plea
counsel to so advise [the] defendant could have constituted deficient
performance.” Id. at ¶ 31.
¶ 58 The People, adopting the district court’s view, argue that Hunt
is inapposite because, in that case, the defendant alleged that his
counsel affirmatively misled him about his possible exposure as a
complicitor, and here, Evans alleged that his lawyer failed to advise
him about complicity at all. The Hunt division did not find that
distinction relevant and neither do we. In ordering a remand, the
Hunt division explained that a hearing was necessary to determine
whether counsel had “misadvised” or “failed to properly advise” the
28 defendant about complicity, id. at ¶ 32 — either way, counsel’s
failure could support a finding of ineffective assistance of counsel.
¶ 59 This case is the inverse of Hunt. If Evans’s lawyer should have
properly advised him about complicity but failed to, and, as a
result, Evans rejected a soft offer that could have developed into a
firm offer, then he may be entitled to relief. See Quintana v.
Chandler, 723 F.3d 849, 854 (7th Cir. 2013) (explaining that
counsel’s “representation would cause constitutional problems” if
the defendant “rejected his plea on a misunderstanding that he
would not be guilty because he was not the principal,” but finding
that counsel had properly advised the defendant on accomplice
liability); People v. McCauley, 821 N.W.2d 569 (Mich. 2012) (mem.)
(disagreeing with the court of appeals’ remedy but affirming its
conclusion that counsel provided ineffective assistance by failing to
explain complicitor liability to the non-shooter defendant because,
without the information, he could not make an informed decision
whether to accept or reject the plea offer); Wanatee v. Ault, 39 F.
Supp. 2d 1164, 1172-73 (N.D. Iowa 1999) (in light of the facts of the
case, counsel’s failure to advise the defendant about aiding and
abetting liability constituted deficient performance).
29 ¶ 60 And, for the reasons discussed above, we reject the People’s
argument that Evans cannot establish prejudice because no firm
plea offer was extended. Whether there is a reasonable probability
that the soft offer would have become a firm offer must be
determined on remand.
¶ 61 Accordingly, we conclude that Evans is entitled to an
evidentiary hearing on his claim that counsel provided ineffective
assistance by failing to advise him that he could be convicted under
a complicity theory.
III. Disposition
¶ 62 The district court’s orders are reversed and the case is
remanded for further proceedings.
JUDGE GROVE and JUDGE PAWAR concur.