Peo v. Fuentes

24CA0239 Peo v Fuentes 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0239
Boulder County District Court No. 21CR4
Honorable Nancy W. Salomone, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ely Antonio Fuentes,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE JOHNSON
Welling and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Ely Antonio Fuentes, Pro Se
¶1 Defendant, Ely Antonio Fuentes (Fuentes), appeals the

postconviction court’s order denying his pro se Crim. P. 35(c)

motion without a hearing. On appeal, Fuentes contends that his

trial counsel was constitutionally deficient by failing to (1) challenge

Fuentes’ statements made after his Miranda rights were given to

him in English, as his native language is Spanish; (2) challenge the

admissibility of statements Fuentes made when speaking with the

police because the interview was conducted in English; and

(3) appropriately investigate his case. Because of this deficient

performance, Fuentes argues, he did not understand the judicial

proceedings, and, therefore, entered an involuntary guilty plea. We

affirm.

I. Background

¶2 In late December 2020, Fuentes’ significant other reported to

police that she had witnessed Fuentes digitally penetrating his five-

year-old niece’s “private parts” in the bathroom of the master

bedroom during a family gathering. She also reported witnessing

him filming his actions on his phone. Since the significant other

did not speak English, her daughter reported the incident to the

1
police, and the daughter acted as the significant other’s interpreter

when law enforcement arrived.

¶3 Fuentes is a native-Spanish speaker with limited English-

speaking skills; at the time of the investigation, however, he told

officers that he was able to understand English and responded

appropriately to the police officer’s questions and comments. The

officers told Fuentes that it was not mandatory for them to look

through his phone, but he responded that it was “good for him” and

it could be checked. The police discovered an image of a

prepubescent vagina with what appeared to be an adult hand. After

the interview, Fuentes was arrested, and his phone was seized.

¶4 Fuentes was charged with one count of sexual assault on a

child, two counts of sexual exploitation of a child, and a sentence

enhancing aggravated sex offense count. In November 2022,

Fuentes entered into a plea agreement in which the prosecution

agreed to dismiss the four counts against him in exchange for his

guilty pleas to one count of first degree assault and one count of

sexual exploitation of a child. The agreement also required Fuentes

to forfeit all seized electronics, register as a sex offender, and have

no contact with his significant other, the niece, and two other

2
involved family members. Fuentes was sentenced to fourteen years

in the custody of the Department of Corrections.

¶5 In September 2023, Fuentes filed his Crim P. 35(c) motion.

The court denied it without holding a hearing or appointing

counsel. Fuentes filed this appeal.

II. Standard of Review and Applicable Law

¶6 Postconviction rulings on ineffective assistance of counsel

claims are a mixed question of fact and law. See Strickland v.

Washington, 466 U.S. 668, 698 (1984); see also Dunlap v. People,

173 P.3d 1054, 1063 (Colo. 2007). A postconviction court’s denial

of a Rule 35(c) motion without a hearing is reviewed de novo. See

People v. McGlaughlin, 2018 COA 114, ¶ 25; People v. Smith, 2017

COA 12, ¶ 12.

¶7 A court may deny a Crim P. 35(c) motion without an

evidentiary hearing if the motion, files, and case record establish

the defendant is not entitled to relief. See Ardolino v. People, 69

P.3d 73, 77 (Colo. 2003). Thus, a summary denial of a

postconviction motion is appropriate if (1) the allegations are bare

and conclusory; (2) the allegations, even if true, do not warrant

postconviction relief; or (3) the record directly refutes the

3
defendant’s claims. See White v. Denver Dist. Ct., 766 P.2d 632,

634 (Colo. 1988); People v. Venzor, 121 P.3d 260, 262 (Colo. App.

2005); People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001).

Evidentiary support is not necessary in the Rule 35(c) motion, but

bare assertions are insufficient. See People v. Bossert, 772 P.2d

618, 620 (Colo. 1989).

¶8 The Sixth Amendment right to counsel includes the right to

effective counsel. See Strickland, 466 U.S. at 686. To prevail on an

ineffective assistance claim, the defendant must be able to show

both that (1) counsel’s performance fell below an objective standard

of reasonableness and (2) counsel’s deficient performance

prejudiced the defense. See People v. Chalchi-Sevilla, 2019 COA 75,

¶ 6 (citing Strickland, 466 U.S. at 687). To establish prejudice in

the context of plea offers and discussions, the defendant must show

an objectively reasonable probability that, but for counsel’s

unprofessional errors, he would not have pled guilty and insisted on

going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v.

Garcia, 815 P.2d 937, 943 (Colo. 1991).

¶9 Because the burden is on the defendant to satisfy both

Strickland prongs, a court may deny such a claim by concluding

4
one of the prongs has not been met without analyzing the other.

Garcia, 815 P.2d at 941-42.

III. Preservation

¶ 10 As an initial matter, the Attorney General contends that none

of Fuentes’ contentions were raised below and, thus, we should

dismiss his appeal. We agree that Fuentes’s postconviction motion

did not raise the following issues: (1) the police illegally searched his

phone without a warrant because he did not understand the waiver

of his Miranda rights; (2) his plea was involuntary because it was

motivated by the illegally obtained evidence from his phone; and

(3) trial counsel failed to show him documents supporting that the

evidence from his phone was illegally obtained. We decline to

address these issues further. DePineda v. Price, 915 P.2d 1278,

1280 (Colo. 1996) (“Issues not raised before the district court in a

motion for postconviction relief will not be considered on appeal of

the denial of that motion.”); see also People v. Wolfe, 213 P.3d 1035,

1037 (Colo. App. 2009) (same).

¶ 11 But Fuentes raised, and the court addressed and denied, his

other contentions, so we review them.

5
IV. Analysis

A. Failure to Investigate

¶ 12 We agree with the postconviction court’s conclusion that

Fuentes asserted nothing more than conclusory allegations about

his trial counsel’s failure to conduct an adequate investigation.

Other than indicating that counsel should have interviewed him

and examined police reports, Fuentes did not allege what other

investigation his counsel should have undertaken, nor did he

indicate any evidence that further investigation might have

discovered or developed. Put another way, his bare assertions do

not indicate what evidence would have been discovered had trial

counsel conducted an adequate investigation or how such evidence

would have influenced Fuentes’ decision to plead guilty. Therefore,

we agree that this claim fails to meet either Strickland prong, and

was therefore properly denied without a hearing.

B. Motion to Suppress

¶ 13 The postconviction court did not err by denying Fuentes’ claim

concerning trial counsel’s failure to file a motion challenging the

legality of Fuentes’ statements made to police because he did not

understand his rights. Broadly construing Fuentes’ argument that

6
he did not understand what police officers were saying to him

before his arrest, we affirm the postconviction court’s assessment

that, even if counsel had filed such a motion, suppressing his

statements would not have changed the outcome of Fuentes’ plea

process. See Hill, 474 U.S. at 59.

¶ 14 Even assuming such a motion had legal merit, the

postconviction court further reasoned, the statements Fuentes

made to law enforcement were not inculpatory and his conduct

leading to the more significant charges was not known to police at

the time of his arrest, so his statements were immaterial to those

charges. We agree with the postconviction court that Fuentes has

failed to make allegations sufficient to warrant relief under the

second prong of Strickland.

V. Conclusion

¶ 15 The postconviction court’s order is affirmed.

JUDGE WELLING and JUDGE GROVE concur.

7