Peo v. Scott

23CA0729 Peo v Scott 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0729
Jefferson County District Court No. 15CR767
Honorable Christopher C. Zenisek, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Billy E. Scott,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

R. Scott Reisch, Alternate Defense Counsel, Robert F. LeVeen, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Billy E. Scott appeals the postconviction court’s order denying

his motion for relief under Crim. P. 35(c) after an evidentiary

hearing. Scott contends that his trial attorneys provided ineffective

assistance by failing to (1) seek additional expert opinions on bullet

ricochet; (2) produce testimony regarding his relationship with his

former girlfriend and with the victim; and (3) object to the trial

court’s complicity instruction. We reject each contention and affirm

the order.

I. Background

¶2 The division of this court that considered Scott’s direct appeal

summarized the underlying facts as follows:

[Scott] and his girlfriend, who worked together
in the bail bond business, went to Troy
Pitman’s home to question him about a woman
who had skipped bail. Troy and his
stepbrother, Larry, were in the garage; the
garage door was open. [Scott] walked into the
garage and punched Troy in the face. The two
began fighting. According to [Scott’s]
girlfriend’s testimony at trial, when Troy began
getting the upper hand in the fight, [Scott] told
his girlfriend to shoot Troy with her gun. The
girlfriend pointed the gun toward Troy and
Larry but did not shoot. [Scott] then walked
behind his girlfriend, wrapped his arms
around her, put his finger on top of her finger
on the trigger of the gun, and shot Troy, killing
him. Larry fled.

1
People v. Scott, slip op. at ¶ 2 (Colo. App. No. 16CA1553, Feb. 7,

2019) (not published pursuant to C.A.R. 35(e)) (Scott I).

¶3 A jury convicted Scott of one count of first degree murder after

deliberation, one count of felony murder, one count of menacing

with a deadly weapon, two counts of first degree burglary, and one

count of second degree burglary. The trial court sentenced Scott to

life in prison for the murder convictions plus sixty years for the

other convictions.

¶4 Scott appealed, and the Scott I division dismissed the appeal in

part, affirmed it in part, vacated it in part, and remanded the case

with directions. The division dismissed Scott’s appeal as to the

complicity instruction due to waiver and remanded to the trial court

to merge the burglary convictions, merge the felony murder

conviction into the conviction for murder after deliberation,

resentence Scott for first degree murder, and correct the mittimus.

Id. at ¶ 29.

¶5 After the case was remanded to the trial court, Scott filed a

motion for postconviction relief under Crim. P. 35(c) asserting

multiple claims of ineffective assistance from his trial attorneys. As

relevant here, Scott argued that his trial attorneys provided

2
ineffective assistance by (1) not consulting with additional experts

after a consulted expert did not agree with Scott’s theory of a

ricocheted bullet; (2) not presenting favorable evidence regarding

Scott’s relationships with both his associate/former girlfriend and

the victim; and (3) not objecting to the jury instruction on

complicity.

¶6 The postconviction court set the case for an evidentiary

hearing, where it heard testimony from both of Scott’s trial

attorneys, an expert witness on the ricochet theory, one of Scott’s

friends, and Scott himself. The court denied postconviction relief,

ruling that Scott failed to demonstrate both deficient performance

and prejudice for each of his claims.

II. Standard of Review and Applicable Law

¶7 A postconviction court’s ruling on a Rule 35(c) motion after a

hearing presents a mixed question of fact and law. People v. Sharp,

2019 COA 133, ¶ 12. “We defer to the court’s findings of fact if they

have record support, but we review any legal conclusions de novo.”

Id. The postconviction court determines the weight and credibility

to be given to the testimony of witnesses at a Rule 35(c) hearing.

People v. Hardin, 2016 COA 175, ¶ 39.

3
¶8 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). “[T]o 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 either of these two prongs defeats an ineffective assistance

claim. People v. Thompson, 2020 COA 117, ¶ 50.

¶9 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). “[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.

¶ 10 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,

4
466 U.S. at 694. A reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Id.

III. Failure to Seek Additional Expert Opinions on Ricochet

¶ 11 Scott first contends that his trial attorneys should have

consulted additional experts about whether the bullet ricocheted

after their initial expert told them he could not support the theory.

We agree with the postconviction court that Scott failed to establish

both deficient performance and prejudice under Strickland.

A. Additional Background

¶ 12 From the start of the case, Scott maintained that he believed

that the gun was not fired directly at the victim and that the victim

was killed by a ricochet. He told his attorneys as much, and they

retained a well-respected crime scene and ballistics expert, Jeff

Saviano, to investigate this theory. The postconviction court found

that one of Scott’s attorneys

asked Mr. Saviano about the possibility of a
ricochet. She requested that he examine the
gun and ensure it was operable; evaluate the
gun’s trigger pull and see if it was any lighter
than normal; evaluate whether two adult
fingers could fit in the trigger well; and review
the crime scene in general. She did not recall
whether she asked how the bullet might have
become deformed, or why the copper jacketing

5
was found apart from the bullet. Mr. Saviano
concluded that the bullet did not ricochet,
following which [counsel] declined to endorse
him. Consistent with her standard practice,
she did not . . . seek a second expert opinion.
Mr. Saviano, now deceased, was not available
to testify at the post-conviction hearing.

¶ 13 Scott contended that his attorneys provided ineffective

assistance by failing to seek additional expert opinions. To support

this position, he provided expert testimony from a medicolegal

death investigator who testified as an expert at the Rule 35(c)

hearing that the evidence supported a ricochet theory.

¶ 14 The postconviction court denied Scott’s claim. It noted that

Scott’s attorney “sought an opinion regarding the crime scene from

a well-regarded expert” who “analyzed the scene and was not able to

provide supportive testimony,” and, “[f]aced with this information,

counsel prepared for trial without him.” The court found that,

“[g]iven time limitations, monetary limitations and the demands of

major trial work,” the attorney’s “decision not to seek a second

opinion was objectively reasonable.”

B. Deficient Performance

¶ 15 We conclude that the postconviction court’s findings under the

first prong of Strickland — including its finding that it was

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reasonable not to seek additional expert opinions — are supported

by the record, and we will not disturb them. See Sharp, ¶ 12.

¶ 16 First, the record demonstrates that Mr. Saviano was a

well-regarded expert in ballistics and crime scene investigations.

One of Scott’s attorneys testified that Mr. Saviano was a respected,

trustworthy, and credible expert who was “well-known in the

defense community.” Indeed, Scott’s expert at the Rule 35(c)

hearing testified that he himself had received training from

Mr. Saviano.

¶ 17 Second, the record demonstrates that Scott’s attorneys did not

perform deficiently in engaging with Mr. Saviano. The attorney who

consulted Mr. Saviano testified that she asked him

to look at the gun that was used in this case to
see whether it was operable. It had been
tested by the prosecution. Also for him to
evaluate trigger pull on the gun to see if it was
lighter than normal. And we also asked him to
examine whether two adult fingers could fit
within the space where the trigger was. And
we also asked him just to also review the crime
scene in general.

Additionally, she asked him “if he could state as an expert that it

was a ricochet.” To facilitate his review, the attorney provided

Mr. Saviano with “access to the entire file. He was able to see all of

7
the evidence that was collected by the prosecution, by the police,

and then also he . . . physically and personally viewed the evidence

in the case.” To the extent that Scott suggests that his attorneys

provided deficient performance by failing to consult a medical

examiner about the victim’s wound, he did not present any evidence

or develop any argument suggesting that Mr. Saviano, an expert in

ballistics, was unqualified to consider if the gunshot wound could

support the theory that the bullet ricocheted before entry.

¶ 18 Third, the record supports the postconviction court’s finding

that it was reasonable not to consult with additional experts.

Scott’s attorney testified that her “practice was that we would

engage one [expert] that we did respect, and we would not look for a

second opinion.” “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.” People v. Newmiller, 2014 COA 84, ¶ 46

(quoting Strickland, 466 U.S. at 690). After engaging a

well-regarded expert and providing him with all available

information, the attorney’s decision to give up on a ricochet theory

was strategic and adequately informed; thus, the presumption that

it was reasonable is “virtually unchallengeable.” Id.; cf. Davis v.

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Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (“[T]he mere fact a

defendant can find, years after the fact, a mental health expert who

will testify favorably for him does not demonstrate that trial counsel

was ineffective for failing to produce that expert at trial.”).

¶ 19 In light of these findings, we cannot conclude that Scott’s trial

attorneys’ decision not to consult additional experts constituted

constitutionally deficient performance.

C. Prejudice

¶ 20 We also agree with the People that Scott has not shown a

reasonable likelihood that he was prejudiced by his trial attorneys’

failure to consult with additional experts.

¶ 21 Testimony regarding a ricocheted bullet, which Scott claims

would have advanced the theory that the gun was discharged

accidentally, was only relevant to the charge for first degree murder

after deliberation; it had no bearing on his felony murder

conviction. As long as Scott entered the victim’s garage uninvited

with the intent to assault him, he committed burglary, which serves

as a predicate felony for felony murder. See People v. Medina,

260 P.3d 42, 45 (Colo. App. 2010). The death of the victim during

Scott’s commission of the predicate felony is sufficient for the felony

9
murder conviction, regardless of whether the gun was accidentally

discharged. See Commonwealth v. Tejeda, 41 N.E.3d 721, 724 n.4

(Mass. 2015) (“Felony-murder liability also extends to accidental

deaths occurring during the course of an underlying felony so long

as the death was a natural and probable consequence of the

unlawful activity.”); Jefferson v. State, 128 So. 2d 132, 136 (Fla.

1961) (the accidental discharge of the defendant’s gun in the course

of a robbery, resulting in the victim’s death, constitutes felony

murder). And because the murder convictions merged, Scott

cannot show prejudice. In other words, regardless of what

testimony defense counsel presented about a ricochet, Scott faced

the same result because convictions for both murder after

deliberation and felony murder — which merged into a single

conviction — were class 1 felonies carrying the same life sentence.1

See § 18-3-102(1)(a)-(b), C.R.S. 2016; § 18-1.3-401(1)(a)(V)(A),

C.R.S. 2024.

1 In 2021, the crime of felony murder was moved to the second

degree murder statute, section 18-3-103, C.R.S. 2024, and
reclassified as a class 2 felony. Ch. 58, secs. 1-2, 6,
§§ 18-3-102, -103, 2021 Colo. Sess. Laws 235-36, 238. That
change applies only to offenses committed on or after
September 15, 2021. Id. at 238.

10
IV. Failure to Present Testimony Regarding Scott’s Relationships
with His Former Girlfriend and the Victim

¶ 22 Next, Scott contends that his trial attorneys provided

ineffective assistance because they failed to present testimony

about (1) the nonromantic nature of his relationship with his former

girlfriend and (2) his friendly relationship with the victim. We are

not persuaded.

A. Relationship with the Former Girlfriend

¶ 23 After the shooting, Scott’s former girlfriend called the police to

request medical assistance for the victim and told the dispatcher

that she had fired the gun. When the police arrived, she again said

that she was the person who had fired the gun. But at Scott’s trial,

the girlfriend testified that Scott had put his hands over hers on the

gun and forced her to pull the trigger. She explained that she told

the police that she was the shooter to protect Scott because she

“cared about whether he got in trouble.”

¶ 24 Scott contends that his trial attorneys provided deficient

performance by failing to present evidence that he and the girlfriend

were not, at the time of the incident, in a romantic relationship,

which would have undercut the girlfriend’s explanation for

11
changing her statements. We disagree. Like the postconviction

court, we conclude that his attorneys’ “lack of obsession with the

issue was understandable and reasonable” because “[t]he trial

evidence was uncontroverted that [Scott] and [the girlfriend] were

business associates with at least some level of personal friendship”

and, therefore, “regardless of the degree of frequency in their sexual

intimacy, the jury was free to draw motive by [the girlfriend] to help

[Scott] by accepting responsibility.”

¶ 25 The record reflects that the trial attorneys made a strategic

decision to characterize Scott’s relationship with the former

girlfriend as an “on-again, off-again” romantic relationship that was

“more of a casual nature” and not a “serious, exclusive

relationship.” In support of this characterization, counsel elicited

testimony from the girlfriend that she told a police officer that she

and Scott “had been romantically involved in the past” but, as of

the day of the shooting, they “were just friends.”

¶ 26 Scott does not challenge this characterization. Instead, he

argues that his attorneys should have presented additional defense

witnesses to reinforce the fact that he and the girlfriend were not in

a romantic relationship at the time of the shooting. But the

12
decision to call certain witnesses and what questions to ask those

witnesses are matters of trial strategy, Davis v. People, 871 P.2d

769, 773 (Colo. 1994), and “[m]ere disagreement as to trial strategy

will not support a claim for ineffective assistance of counsel,”

People v. Bradley, 25 P.3d 1271, 1275 (Colo. App. 2001). And

“where it is shown that a particular decision was, in fact, an

adequately informed strategic choice, the presumption that the

attorney’s decision was objectively reasonable becomes ‘virtually

unchallengeable.’” Newmiller, ¶ 27 (alteration omitted) (quoting

Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002)).

¶ 27 Accordingly, we agree with the postconviction court that Scott

did not establish deficient performance under Strickland on this

claim.

B. Relationship with the Victim

¶ 28 Scott also contends that his trial attorneys provided deficient

performance by failing to produce testimony that he and the victim

were friends to dispute that he entered the victim’s garage

unlawfully. Failing to do so, according to Scott, effectively conceded

the felony murder charge.

13
¶ 29 But Scott’s attorneys testified — credibly, according to the

postconviction court — at the Rule 35(c) hearing that “the fact that

the two men were friends was not disputed at trial” and that it was

not “viable to argue that [Scott] had entered the garage lawfully

simply because the two men were friends.” Instead, the attorneys

elected to proceed on the theory that “Scott couldn’t have possibly

had any intent to harm the victim.” See §§ 18-4-202(1), -203(1),

C.R.S. 2024 (a person commits burglary by unlawfully entering a

building or occupied structure “with intent to commit therein a

crime”).

¶ 30 The postconviction court concluded that this was a reasonable

approach, noting that even if Scott and the victim had “been the

best of friends, the relationship would not have yielded automatic

permission to enter and confront at any time.” We agree. Scott has

not produced any evidence that his trial attorneys could have used

to suggest that he had permission to enter the victim’s garage at

any time and for any reason, including to confront the victim over a

bail bond that he and his fiancee cosigned. Accordingly, the

attorneys did not provide deficient performance by electing to attack

14
the intent element of burglary (and, by proxy, felony murder)

instead of challenging unlawful entry.

V. Failure to Object to the Complicity Instruction

¶ 31 Lastly, Scott contends that his attorneys provided ineffective

assistance by failing to object to the complicity instruction given at

trial. We disagree.

A. Childress and the Complicity Instruction

¶ 32 Several months before Scott’s trial, the Colorado Supreme

Court held that a person can be found liable as a complicitor to a

crime only if

he aids, abets, advises, or encourages the
other person in planning or committing that
offense, and he does so with: (1) the intent to
aid, abet, advise, or encourage the other
person in his criminal act or conduct, and
(2) an awareness of circumstances attending
the act or conduct he seeks to further, including
a required mental state, if any, that are
necessary for commission of the offense in
question.

People v. Childress, 2015 CO 65M, ¶ 34 (emphasis added).

¶ 33 Based on this new decision, the trial court, with the parties’

agreement, crafted a complicity instruction. The instruction

provided in relevant part that for Scott

15
[t]o be found guilty as a complicitor, the
prosecution must prove each of the following
circumstances beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all,
or part of, the crime.

3. The defendant must have intentionally
aided, abetted, advised, or encouraged
the other person in planning or
committing the crime.

4. The defendant must have had awareness
of the circumstances attending the act or
conduct that he sought to further,
including the culpable mental state of the
other person which is necessary to commit
the crime.

(Emphasis added.)

¶ 34 After the trial, the model complicity jury instructions were

updated to reflect the decision in Childress. The current model

instruction states, in relevant part, the following:

For the defendant to be guilty as a complicitor
of the crime of [insert offense], as defined at
the end of this Instruction, the prosecution
must prove each of the following conditions
beyond a reasonable doubt:

1. Another person committed the crime of
[insert offense], as defined at the end of
this Instruction, and

16
2. the defendant, with the desire or the
purpose or design to aid, abet, advise, or
encourage the other person in planning
or committing that crime,

3. aided, abetted, advised, or encouraged
the other person in planning or
committing that crime, and

[4. the defendant was aware of all of the
elements of that crime, as defined at the
end of this Instruction.]

COLJI-Crim. J:03 (2024) (brackets in original) (emphasis added).

B. Analysis

¶ 35 Scott contends that his attorneys should have objected to the

trial court’s complicity instruction because “[t]here is a difference

between having an awareness of the elements of the crime and

intentionally aiding with the awareness that another was going to

engage in all elements of a crime, including possessing the requisite

mental state.” Thus, Scott argues, “The instruction given at Scott’s

trial d[id] not clarify the necessity that Scott kn[e]w the different

mental states required for each crime in which he was alleged to be

complicit.”

¶ 36 We agree with the postconviction court that Scott’s attorneys

did not perform deficiently by declining to object to the trial court’s

complicity instruction. The trial court’s instruction included the

17
requirement that Scott “had awareness of the circumstances

attending the act or conduct that he sought to further, including

the culpable mental state of the other person which is necessary to

commit the crime.” This language was taken almost verbatim from

the holding in Childress requiring “an awareness of circumstances

attending the act or conduct he seeks to further, including a

required mental state, if any, that are necessary for commission of

the offense in question.” Childress, ¶ 34. Scott’s attorney who was

handling jury instructions reviewed Childress before electing not to

object to the complicity instruction. See Scott I, ¶¶ 9-11. Given the

similarity between the language used in the instruction and the

language in Childress, we conclude that the attorney’s decision fell

“within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689.

¶ 37 We are not persuaded otherwise by Scott’s reference to the

current model complicity instruction requiring that “the defendant

was aware of all of the elements of” the principal’s crime.

COLJI-Crim. J:03 (2024). “In determining whether trial counsel’s

performance was deficient, a reviewing court must evaluate the

representation ‘from counsel’s perspective at the time the

18
representation occurred, ignoring ‘the distorting effects of

hindsight.’” People v. Lopez, 2015 COA 45, ¶ 59 (quoting Davis,

871 P.2d at 772). The new model complicity instruction did not

exist at the time of Scott’s trial, and the pre-Childress model

complicity instructions effective at the time did not include the word

“elements.” See COLJI-Crim. G1:06, :07 (2016). Moreover, the

supreme court did not draw a distinction between “an awareness of

those circumstances attending the act or conduct” and an

awareness of the elements of the principal’s crime in Childress.

Childress, ¶ 29. Rather, the court defined “circumstances attending

the act or conduct” as “those elements of the offense describing the

prohibited act itself and the circumstances surrounding its

commission, including a required mental state, if any.” Id.

¶ 38 Without the benefit of an updated model jury instruction, the

parties and the trial court had to determine how to instruct the jury

on the concept of complicity as explained in Childress. Scott’s trial

attorneys did not act below Strickland’s standard of reasonableness

by failing to anticipate future changes in the model instructions,

especially when the court’s instruction included language directly

from Childress.

19
¶ 39 Accordingly, we agree with the postconviction court that it was

reasonable for Scott’s attorneys to decline to object to the trial

court’s instruction, and, thus, Scott has not demonstrated deficient

performance under Strickland. Therefore, this ineffective assistance

claim also fails.

VI. Abandoned Claims

¶ 40 In his opening brief, Scott also asserts that his trial attorneys

provided ineffective assistance because they failed to (1) consult

with a medical examiner to support his theory that he was struck

from behind in the victim’s garage;2 (2) elicit information supporting

the ricochet theory from a prosecution witness; and (3) call a

witness who would have testified about Scott’s state of mind the day

of the shooting. Although these three claims were included in

2 The postconviction court did not make findings or rule on the

claim that Scott’s trial attorneys should have consulted a medical
examiner about his injuries, but the record suggests this was an
informed strategic decision. One of Scott’s trial attorneys testified
that, regarding Scott’s injuries, “[w]e did not insert it into the trial,
and we didn’t believe that it was an important piece of evidence. We
did have our investigator . . . go to the jail and document injuries of
Mr. Scott. . . . [W]e . . . did not believe, in viewing the
photographs . . . , that his injuries were significant.”

20
Scott’s Rule 35(c) supplement, they were abandoned following the

evidentiary hearing.

¶ 41 At the end of the hearing, the parties agreed to submit written

closing arguments in the form of proposed findings of fact and

conclusions of law. Noting that Scott’s Rule 35(c) supplement

included seventeen claims, “[d]epending on how you count them

and break them apart,” the postconviction court asked Scott’s

attorney to present the claims in a way that it could “consider

everything but not be tasked with trying to resurrect a complicated

record to try to find every needle that might be in a haystack of

different arguments.”

¶ 42 Scott’s attorney submitted proposed findings of fact and

conclusions of law that listed only the following claims:

A. Scott’s legal representation was
constitutionally ineffective because it failed to
present information to the jury about how the
gunshot occurred and the likely path of the
bullet that was consistent with Scott’s
statement of how the bullet was fired and not
consistent with testimony at trial.

B. Scott’s legal representation was
constitutionally ineffective because it failed to
investigate and present evidence that Scott
and [the girlfriend] were not lovers resulting in
the jury not being aware of evidence that

21
contradicted the argument of the prosecution
that [the girlfriend] lied when she stated she
was the shooter to protect Scott.

C. Scott’s legal representation was
constitutionally ineffective because it failed to
investigate and present evidence of the
relationship between Scott and Troy Pitman
that would have established that their
presence in Troy Pitman’s garage was lawful,
and they remained lawfully.

D. Scott’s legal representation was
constitutionally ineffective because counsel
failed to object to the complicity instruction.

E. Scott’s legal representation was
constitutionally ineffective because counsel
failed to follow up on a juror who was thought
to be sleeping, even after the issue was
addressed by the court.

The attorney did not include any analysis relating to the three

claims now advanced on appeal. Consequently, the postconviction

court ruled on only those claims identified in the proposed findings

of fact and conclusions of law.

¶ 43 “Abandonment . . . typically arises from a party’s decision not

to pursue or reassert a claim that the party had raised previously.”

People v. Smith, 2024 CO 3, ¶ 18. Postconviction counsel serves as

the “captain of the ship” and has final authority to choose which

postconviction claims to pursue or abandon, even if the defendant

22
disagrees with that decision. Id. at ¶¶ 26, 30. We conclude that, by

failing to identify or make any arguments regarding the three

omitted claims in the proposed findings of fact and conclusions of

law, Scott’s postconviction attorney abandoned them. See id. at

¶¶ 18-22; People v. Abeyta, 923 P.2d 318, 321 (Colo. App. 1996)

(Even though the defendant’s attorney said it was not his intent to

abandon claims, his “withdrawal of the claims from the court’s

consideration in the first hearing resulted in his abandonment of

those claims.”), superseded by rule on other grounds as recognized

in People v. Roy, 252 P.3d 24, 27 (Colo. App. 2010); cf. People v.

Young, 923 P.2d 145, 149 (Colo. App. 1995) (“[B]ecause he failed to

request a ruling on this issue [from the postconviction court],

defendant has waived it on appeal.”). Accordingly, we do not

consider these claims.

VII. Disposition

¶ 44 The postconviction court’s order is affirmed.

JUDGE J. JONES and JUDGE BERGER concur.

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