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 August 28, 2025
2025COA73
No. 23CA0430, People v. Lopez — Crimes — Assault in the First Degree — Serious Bodily Injury with a Deadly Weapon; Constitutional Law — Eighth Amendment — Proportionality Review — Per Se Grave or Serious Offenses
A division of the court of appeals holds that first degree
assault (causing serious bodily injury by means of a deadly
weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se grave or
serious offense after Wells-Yates v. People, 2019 CO 90M. The
defendant’s twenty-one-year sentence for that offense thus does not
raise an inference of gross disproportionality. The division also
holds that the defendant’s allegations of ineffective assistance of
counsel were insufficient to warrant a hearing under Crim. P. 35(c). COLORADO COURT OF APPEALS 2025COA73
Court of Appeals No. 23CA0430 Jefferson County District Court No. 18CR3242 Honorable Robert Lochary, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Isaiah Josiah Lopez,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE SCHOCK Dunn and Brown, JJ., concur
Announced August 28, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Isaiah Josiah Lopez, appeals the denial of his
Crim. P. 35(c) motion without a hearing. We affirm. In doing so, we
hold that first degree assault (causing serious bodily injury with a
deadly weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se
grave or serious offense after Wells-Yates v. People, 2019 CO 90M.
I. Background
¶2 After an altercation during which he shot the victim in the
knee, Lopez was charged with first degree assault, felony menacing,
child abuse, two counts of reckless endangerment, two counts of
possession of a weapon by a previous offender, three counts of
violating a protective order, and three habitual criminal counts.
¶3 On the morning of the scheduled trial, Lopez pleaded guilty to
first degree assault in exchange for dismissal of the other counts.
Because first degree assault is both an extraordinary risk crime and
a per se crime of violence, Lopez acknowledged that he could be
sentenced to prison for ten to thirty-two years. See § 18-3-
202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a), (10)(b)(XII),
C.R.S. 2025; § 18-1.3-406, C.R.S. 2025. The plea agreement
specified that the prosecution made no sentencing concessions.
1 ¶4 The district court sentenced Lopez to twenty-one years in
prison, to run consecutively to twelve-year concurrent prison
sentences he was serving in three other cases. Lopez did not
appeal. Four months later, he moved for sentence reconsideration
under Crim. P. 35(b), which the district court denied.
¶5 Lopez later filed a timely pro se Crim. P. 35(c) motion,
requesting a proportionality review of his sentence and asserting
two other claims for relief. The district court appointed counsel,
who filed two supplements. The supplements incorporated the
three claims Lopez had asserted pro se and added twelve claims of
ineffective assistance of counsel. The prosecution filed a response.
¶6 The district court denied the motion, including the claims
raised in the supplements, without a hearing. As relevant to this
appeal, the court concluded that (1) Lopez’s request for a
proportionality review was not properly brought under Crim.
P. 35(c), and (2) the ineffective assistance of counsel claims were
conclusory and did not allege facts sufficient to support a claim.
2 II. Analysis
¶7 Lopez appeals the district court’s denial of his request for a
proportionality review of his sentence and five of his claims for
ineffective assistance of counsel. We address each in turn.
A. Legal Standard and Standard of Review
¶8 A Crim. P. 35(c) motion may be denied without a hearing when
“the motion and the files and record of the case show to the
satisfaction of the court that the defendant is not entitled to relief.”
Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations
are bare and conclusory; (2) the allegations, even if true, do not
warrant relief; or (3) the record directly refutes the defendant’s
claims. People v. Duran, 2025 COA 34, ¶ 15. A defendant need not
set forth evidentiary support for the allegations in the motion but
must assert facts that, if true, would provide a basis for relief.
White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).
¶9 We review de novo the district court’s denial of a Crim. P. 35(c)
motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.
B. Proportionality Claim
¶ 10 We agree with Lopez that the district court erred by concluding
that his request for a proportionality review of his sentence was not
3 a proper Crim. P. 35(c) claim. Although Lopez did not explicitly
assert that his sentence was grossly disproportionate, that was the
substance of his claim. See People v. Collier, 151 P.3d 668, 670
(Colo. App. 2006) (holding that substance of postconviction motion
controls how it is designated). He cited the Eighth Amendment’s
prohibition on grossly disproportionate sentences, see Solem v.
Helm, 463 U.S. 277, 284 (1983), and asserted that he was “entitled
to a proportionality review of his sentence.” Construed liberally,
such a request “is a challenge to the constitutionality of a sentence
under the Eighth Amendment and is properly cognizable under
Crim. P. 35(c).” People v. Castillo, 2022 COA 20, ¶ 38. The district
court therefore should have conducted an abbreviated
proportionality review of Lopez’s sentence.1 See id. at ¶ 36.
¶ 11 But when there is no “need for a refined analysis inquiring
into the details of the specific offense[] . . . , an appellate court is as
well positioned as a [district] court to conduct a proportionality
1 Lopez’s postconviction motion was timely, he did not file a direct
appeal, and this was his first Crim. P. 35(c) motion. The People thus do not argue that the proportionality claim was time barred or successive. See People v. Moore-El, 160 P.3d 393, 395 (Colo. App. 2007) (denying request for proportionality review as time barred).
4 review.” People v. Gaskins, 825 P.2d 30, 37-38 (Colo. 1992),
abrogated on other grounds by Wells-Yates, ¶ 55. That is the case
here. Thus, although the district court did not conduct a
proportionality review, we will conduct that review on appeal. See
Castillo, ¶ 38. And because we conclude that Lopez’s sentence does
not raise an inference of gross disproportionality, we affirm the
denial of this claim. See Duran, ¶ 26 (noting that we may affirm the
district court’s order on any ground supported by the record).
¶ 12 Proportionality review starts with an abbreviated review
comparing the gravity and seriousness of the offense with the
harshness of the penalty. Id. at ¶ 28. Ordinarily, assessing the
gravity or seriousness of the offense requires a fact-based inquiry
into “the harm caused or threatened to the victim or society” and
“the culpability of the offender.” Id. at ¶ 29 (quoting Wells-Yates,
¶ 12). But when an offense is per se grave or serious — meaning it
is “grave or serious in every potential factual scenario” — the court
may skip the first step of the abbreviated proportionality review and
proceed directly to the harshness of the penalty. Wells-Yates,
¶¶ 13, 63. In assessing the harshness of the penalty, we must take
into account both the length of the sentence and parole eligibility.
5 Id. at ¶ 14. If this abbreviated proportionality review does not give
rise to an inference of gross disproportionality, no further analysis
is required, and the proportionality challenge fails. Id. at ¶¶ 8, 18.
¶ 13 Lopez pleaded guilty to first degree assault (causing serious
bodily injury by means of a deadly weapon). See § 18-3-202(1)(a).
At the time, that crime had been deemed a per se grave or serious
offense. See People v. Gee, 2015 COA 151, ¶ 60; People v. Oldright,
2017 COA 91, ¶ 14. But Wells-Yates “called into question all pre-
existing per se designations apart from those it identified as
satisfying the new definition of per [se] grave or serious.” People v.
Crawley, 2024 COA 49, ¶ 18. While no published opinion has
addressed whether first degree assault under section 18-3-202(1)(a)
remains a per se grave or serious offense after Wells-Yates, a
division of this court has held that extreme indifference first degree
assault under section 18-3-202(1)(c) does. Duran, ¶¶ 3, 33-36.
¶ 14 We conclude that subsection (1)(a) first degree assault is
likewise per se grave and serious. That offense, “by its nature, . . .
involves violence.” Gee, ¶ 60. Its elements include an intent to
cause serious bodily injury, the use of a deadly weapon, and serious
bodily injury to the victim. § 18-3-202(1)(a); Oldright, ¶ 14; see also
6 Duran, ¶ 35 (noting that “serious bodily injury” is “grave harm”).
And the legislature has designated it as a crime of violence and an
extraordinary risk crime. See Duran, ¶ 35; § 18-3-202(2)(c); § 18-
1.3-406(2)(a)(II)(C); § 18-1.3-401(10)(b)(XII). Thus, “[t]he statutory
elements of [subsection (1)(a) first degree assault] ensure that,
regardless of the facts and circumstances involved, a defendant who
stands convicted of . . . such offense will have committed a crime
that is necessarily grave or serious.” Wells-Yates, ¶ 65.
¶ 15 Because Lopez’s offense is per se grave or serious, we proceed
directly to the harshness of the penalty. See id. at ¶ 13. Lopez’s
twenty-one-year sentence was in the middle of the statutory range.
See § 18-3-202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a),
(b)(XII); § 18-1.3-406. And he will be eligible for parole after serving
seventy-five percent of that sentence, see § 17-22.5-403(2.5)(a),
C.R.S. 2025, potentially shortening his actual period of confinement
for this offense to approximately sixteen years (or less, depending
on any earned time granted under section 17-22.5-405, C.R.S.
2025). See Wells-Yates, ¶ 14. Given the gravity of Lopez’s offense,
this sentence does not raise an inference of gross disproportionality.
See id. at ¶ 5 (“It is ‘exceedingly rare’ for a sentence to be deemed so
7 extreme that it is grossly disproportionate to the crime.”) (citation
omitted). We therefore affirm the denial of this claim.2
C. Ineffective Assistance of Counsel
¶ 16 Lopez next argues that the district court erred by denying his
claims that his counsel provided ineffective assistance by (1) failing
to interview witnesses; (2) failing to exercise due diligence in
preparing for trial; (3) pressuring him to plead guilty; (4) failing to
visit him in custody before trial; and (5) failing to find and provide
mitigating information for plea negotiations. He also contends that
the cumulative effect of these alleged deficiencies prejudiced him.3
2 Because we conclude that Lopez’s sentence does not give rise to
an inference of gross disproportionality, we do not address the People’s argument that Lopez’s proportionality challenge is barred by section 18-1-409(1), C.R.S. 2025, because his sentence is within the range to which he stipulated in the plea agreement.
3 Lopez does not reassert his claims that his counsel provided
ineffective assistance by failing to (1) challenge the pretrial identification; (2) file motions; (3) advise Lopez throughout the case; (4) comply with counsel’s duty of loyalty; (5) provide or review discovery; (6) investigate the habitual criminal counts; and (7) advise Lopez about his right to testify. Nor does he appeal the denial of his claim that the Department of Corrections failed to apply proper time credits. These claims are all abandoned. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
8 ¶ 17 We conclude that the district court correctly denied Lopez’s
ineffective assistance of counsel claims without a hearing.
1. Legal Standard
¶ 18 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 697 (1984). Under the first prong of
this test, the defendant must show that counsel’s representation
“fell below an objective standard of reasonableness.” Id. at 688.
Under the second prong, the 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.” Id. at 694.
¶ 19 When a defendant pleaded guilty, 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.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985); see also People v. Sifuentes,
2017 COA 48M, ¶ 20. To meet this burden, the defendant must
establish that rejection of the plea “would have been rational under
the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
9 ¶ 20 An ineffective assistance claim may be denied without a
hearing if the defendant’s allegations fail to satisfy either prong of
the Strickland test. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
2. Failure to Interview Witnesses
¶ 21 Lopez alleged that his counsel failed to interview any of the lay
witnesses in the case, including the victim. He alleged that the
witness accounts were conflicting on critical issues like “who had a
gun, who shot a gun, [and] the victim’s conduct leading up to the
shooting.” He also alleged that interviews of these witnesses were
critical to his possible defenses at trial and to his ability to make
knowing and intelligent decisions about whether to testify and
whether to go to trial. The district court denied the claim on the
grounds that (1) disagreement as to trial strategy cannot support an
ineffective assistance claim, and (2) the allegations were conclusory.
¶ 22 To the extent the district court denied the claim because it
concerned trial strategy, we disagree. Nothing in the record clearly
establishes that Lopez’s counsel made a “strategic” decision not to
interview any lay witnesses, including the victim, or that such a
decision would have been reasonable under the circumstances of
this case. See Ardolino, 69 P.3d at 77 (“If a criminal defendant has
10 alleged acts or omissions by counsel that, if true, could undermine
confidence in the defendant’s conviction or sentence, and the
motion, files, and record in the case do not clearly establish that
those acts or omissions were reasonable strategic choices or
otherwise within the range of reasonably effective assistance, the
defendant must be given an opportunity to prove they were not.”).
¶ 23 Nevertheless, we agree with the district court that Lopez’s
claim was bare and conclusory. See People v. Venzor, 121 P.3d
260, 262 (Colo. App. 2005) (noting that a Crim. P. 35(c) motion may
be denied without a hearing “if the claims are bare and conclusory
in nature[] and lack supporting factual allegations”). Although
Lopez alleged that the witness accounts were “many and
conflicting,” he did not identify those witnesses, their conflicting
statements, or how they would have supported his defense at trial.
See People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (affirming
denial of a Crim. P. 35(c) motion without a hearing where the
defendant 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”).
11 ¶ 24 Nor did Lopez allege how interviewing these witnesses would
have caused him not to plead guilty and to insist on going to trial.
See Hill, 474 U.S. at 59. At most, he asserted that the interviews
would have allowed him to make a “knowing and intelligent”
decision about whether to plead guilty. But he does not allege that
his decision would have been different — or why. To the extent
Lopez makes such an assertion on appeal, it is too late. See 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”); see also People v. Goldman, 923 P.2d 374,
375 (Colo. App. 1996) (“Allegations not raised in a Crim. P. 35(c)
motion . . . are not properly before this court for review.”).
3. Failure to Exercise Due Diligence
¶ 25 Lopez next alleged that his counsel failed to “perform due
diligence” by not investigating Lopez’s case or preparing for trial,
which resulted in counsel “bombard[ing]” Lopez with a “last-minute
plea on the eve of trial.” Lopez further alleged that if counsel had
prepared the case for trial, this “last-minute advisement and plea
12 would not have happened.” Again, the district court denied this
claim as implicating trial strategy and as conclusory and vague.
¶ 26 A criminal defendant is entitled to a pretrial investigation that
is sufficiently thorough “to develop potential defenses and uncover
facts relevant to guilt and punishment.” People v. Davis, 849 P.2d
857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994).
Defense counsel therefore “has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691.
¶ 27 Lopez’s allegations that his counsel “did not investigate” and
“failed to properly prepare his case for trial” are conclusory. He
does not specify what his counsel failed to investigate or what else
should have been done to prepare. See Zuniga, 80 P.3d at 973.
¶ 28 Moreover, the record refutes Lopez’s only claim of prejudice —
that the “last-minute advisement and plea would not have
happened.” As the district court noted, the prosecution re-extended
the original plea offer just before trial, and Lopez’s counsel promptly
presented it to him. Lopez did not allege that he would have
rejected the offer at that point if his counsel had been better
prepared, only that he would not have felt “bombarded.” Such an
13 allegation is insufficient to show that “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
4. Pressure to Accept Plea Offer
¶ 29 Lopez alleged that his counsel, having failed to prepare for
trial, contacted Lopez’s family to pressure him to plead guilty. He
asserted that, as a result, he could not make an informed decision
about whether to accept the plea offer or go to trial and therefore
“did not enter a truly knowing and voluntary plea of guilty.”
¶ 30 But pressure alone does not invalidate a guilty plea. See
People v. McCormick, 881 P.2d 423, 427 (Colo. App. 1994)
(explaining that the “desire to accept the certainty or probability of a
lesser penalty rather than face a wider range of possibilities” does
not render a guilty plea invalid). Of course, a plea is invalid when it
is obtained by “actual or threatened physical harm or by mental
coercion overbearing the will of the defendant.” Brady v. United
States, 397 U.S. 742, 750 (1970). But Lopez did not allege in his
motion any coercion by his counsel or his family rising to this level.
¶ 31 Indeed, at the providency hearing, Lopez unequivocally
affirmed that he was entering his guilty plea knowingly and
voluntarily. While such a representation does not necessarily
14 foreclose a challenge to the validity of a guilty plea, see People v.
Morones-Quinonez, 2015 COA 161, ¶ 17, such statements “carry a
strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 74
(1977). See also People v. Canody, 166 P.3d 218, 220 (Colo. App.
2007) (concluding that the defendant’s declarations “plainly
refute[d] [his] conclusory allegations” that the plea was coerced).
Lopez did not make any allegations of improper pressure that would
overcome his statements to the contrary at the providency hearing.
5. Failure to Visit Before Trial
¶ 32 Lopez alleged that after he was transferred from the jail to the
Department of Corrections (DOC), his counsel did not visit him
until the night before trial, when counsel advised Lopez to plead
guilty. Lopez alleged that “because of this, [he] felt ambushed on
the eve of trial and was unable to make informed decisions about
his case.”
¶ 33 Lopez was transferred to the DOC about a month and a half
before his trial was scheduled to begin. Lopez does not explain,
through specific factual allegations, how additional visits by counsel
during this period would have caused him not to plead guilty. See
Hill, 474 U.S. at 59. Nor does he allege that his counsel failed to
15 adequately communicate with him in the five months before his
transfer to the DOC. Again, such bare and conclusory allegations
concerning counsel’s supposed ineffective assistance “are
insufficient to demonstrate that a defendant may be entitled to
postconviction relief.” People v. Phipps, 2016 COA 190M, ¶ 36.
6. Mitigation for Plea Negotiations
¶ 34 Lopez claims that his counsel provided ineffective assistance
in plea negotiations because, “[b]y failing to investigate,” he was
unable to “provide mitigating information to the prosecution” that
could have resulted in “leniency and a reasonable plea bargain.”
¶ 35 A defendant’s right to effective assistance of counsel extends to
the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162
(2012). But again, the district court correctly rejected this claim
because the allegations — consisting of two sentences — were too
conclusory to warrant a hearing. See Venzor, 121 P.3d at 262.
¶ 36 Not only did Lopez fail to identify what investigation counsel
should have undertaken or what information might have been
uncovered, but he also did not allege any facts to support his
assertion that such information might have led to a more favorable
plea offer. He did not allege, for example, what evidence could have
16 been presented or why it would have prompted the prosecution to
show him more leniency. Indeed, the record suggests that the
prosecution likely would not have changed its offer. The offer was
the same as the one the prosecution had previously withdrawn, and
the prosecution explained at the providency and sentencing
hearings that it had intended to go to trial and seek habitual
convictions before re-extending the original offer. Lopez’s motion
contained no allegations to suggest that unspecified “mitigating
information” would have led the prosecution to improve that offer.
7. Cumulative Effect
¶ 37 Lopez finally contends that, even if none of his ineffective
assistance of counsel claims independently establish prejudice, the
cumulative effect of counsel’s errors does. See People v. Gandiaga,
70 P.3d 523, 529 (Colo. App. 2002) (“[P]rejudice may result from the
cumulative impact of multiple attorney errors . . . .”). We disagree.
¶ 38 Lopez’s allegations of deficient performance were largely, if not
entirely, conclusory. But even assuming some of the allegations
were sufficient, “the assumed or actual errors of counsel . . . were
neither so numerous nor so prejudicial” as to indicate that, but for
17 those errors, Lopez would not have pleaded guilty and would have
insisted on going to trial. Id.; see also Hill, 474 U.S. at 59.
III. Disposition
¶ 39 The order is affirmed.
JUDGE DUNN and JUDGE BROWN concur.