Peo v. Akins

19CA2008 Peo v Akins 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2008

Boulder County District Court No. 09CR1247

Honorable Bruce Langer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Richard Akins,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE FOX

Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

JLongtin Law, LLC, Jennifer E. Longtin, Robert Houton, Amelia Power, Mattson

T. Smith, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Thomas Richard Akins, appeals the postconviction

court’s order denying his Crim. P. 35(c) petition without a hearing.

We affirm.

I. Background

¶ 2 On July 12, 2009, Akins and N.E., who were longtime friends,

visited a bar in Boulder where they drank beer and shots of liquor.

They left the bar when it closed and went to Akins’ truck; they then

sat in the backseat and talked while Akins sobered up enough to

drive. At one point, Akins kissed N.E. and climbed on top of her.

N.E. realized that her pants were off, but she could not recall how

they had been removed. Akins then penetrated N.E. vaginally and

anally. Afterwards, he cried and apologized, and then drove N.E.

home. After discussing the incident with her partner, S.W., N.E.

reported it to police, alleging that the sexual activity was not

consensual.

¶ 3 Akins was arrested and charged with sexual assault (causing

submission of the victim). A jury convicted him as charged. The

trial court sentenced him to ten years to life of sex offender

intensive supervision probation and ordered two years of work

release as a condition of probation. His conviction was affirmed on

2

appeal. See People v. Akins, (Colo. App. No. 12CA0199, Mar. 19,

2015) (not published pursuant to C.A.R. 35(f)).

¶ 4 On December 17, 2018, Akins filed a petition for

postconviction relief pursuant to Crim. P. 35(c). Akins privately

retained counsel to assist in the petition, and she filed a

supplemental petition alleging that Akins’ trial counsel had been

constitutionally ineffective. After the People filed a response at the

postconviction court’s request, the court denied Akins’ petition

without a hearing.

II. Denial of Akins’ Petition Without a Hearing

¶ 5 Akins contends that the postconviction court erred by

summarily denying his Crim. P. 35(c) petition. We disagree.

A. Standard of Review and Applicable Law

¶ 6 A postconviction court may deny a Crim. P. 35(c) petition

without a hearing if (1) the petition, files, and record clearly

establish that the defendant is not entitled to relief; (2) the

allegations, even if true, do not provide a basis for relief; or (3) the

claims are bare and conclusory in nature. People v. Delgado, 2019

COA 55, ¶ 8. We review de novo such denial of a Crim. P. 35(c)

petition. Id. at ¶ 7.

3

¶ 7 To prevail on an ineffective assistance of counsel claim, a

defendant must show by a preponderance of the evidence that (1)

counsel’s performance was constitutionally deficient, and (2)

defendant was prejudiced by the deficient performance. Strickland

v. Washington, 466 U.S. 668, 687 (1984); People v. Garcia, 815 P.2d

937, 940 (Colo. 1991); People v. Garner, 2015 COA 174, ¶ 17.

Because a defendant must show both deficient performance and

prejudice, a court may resolve an ineffective assistance claim solely

on the basis that the defendant has failed in either regard.

Strickland, 466 U.S. at 697; People v. Ray, 2015 COA 92, ¶ 20.

¶ 8 As to Strickland’s first prong, “a defendant must prove that

counsel’s representation ‘fell below an objective standard of

reasonableness.’” Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

2007) (quoting Strickland, 466 U.S. at 688). “[J]udicial scrutiny of

counsel’s performance must be highly deferential,” and there exists

“a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Ardolino v. People, 69

P.3d 73, 76 (Colo. 2003). “[A] court must make ‘every effort . . . to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

4

conduct from counsel’s perspective at the time.’” Dunlap, 173 P.3d

at 1062-63 (quoting Strickland, 466 U.S. at 689).

¶ 9 As for Strickland’s second prong, the defendant must show a

reasonable probability that, but for counsel’s deficient performance,

the result of the proceeding would have been different. Strickland,

466 U.S. at 694; Ardolino, 69 P.3d at 76. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694; Ardolino, 69 P.3d at 76.

B. Analysis

¶ 10 Akins raised five distinct claims of ineffective assistance in his

postconviction petition. We address the court’s summary denial of

each claim in turn.

1. Failure to Investigate N.E.’s False Impersonation Charge

¶ 11 Shortly before trial, N.E. was arrested in California for driving

on a suspended license. Because she gave the arresting officer a

false name — apparently to avoid arrest on a 2005 Los Angeles

County warrant — she was also charged with a false impersonation

offense. N.E.’s partner, S.W., then contacted the Boulder County

District Attorney’s office on her behalf to inform them that N.E. was

5

in custody and to ask for assistance. The charges against N.E. were

later dismissed.

¶ 12 According to Akins, trial counsel failed to further investigate

the circumstances surrounding N.E.’s arrest. Specifically, he

asserted that trial counsel’s failure “to secure any records of the

arrest, the dismissal, or the Los Angeles County Warrant”

amounted to constitutionally deficient representation that affected

the outcome of his trial. He argues that the claim — as stated in

his petition — warranted an evidentiary hearing. We disagree.

¶ 13 The record indicates that trial counsel had some of the records

concerning N.E.’s arrest. In his petition, Akins stated that trial

counsel had been made aware of the arrest; he clarifies on appeal

that it was the prosecutor who disclosed the information. Though

the record does not clearly show that the prosecutor gave trial

counsel certified copies of N.E.’s arrest records, trial counsel

indicated as much when arguing the admissibility of the incident to

the trial court. For example, in recounting the incident, he alluded

to a document in his possession that listed the specific name of the

offense: “She was arrested for driving on a suspended license/DUI

— and I have a printout I can show you — and a felony false — it’s

6

called false impersonation, impersonating another.” And he

followed that by stating, “As far as I can tell from the records, your

Honor, she was arrested for driving on a suspended name.”

¶ 14 But even if trial counsel did not have official copies of the

records, he was nonetheless aware of the pertinent information

surrounding the incident. The record shows that he knew the

factual circumstances underlying the arrest, including that N.E.

had a suspended license and an outstanding warrant for her arrest;

that he knew the specific offense for which N.E. was charged; and

that he knew the extent of N.E.’s and S.W.’s communication with

the Boulder County District Attorney’s office before the dismissal of

the N.E.’s charges. It is unclear what further information would

have been revealed if trial counsel had obtained the official records;

indeed, Akins could only speculate in his petition, in part because

the arresting agency disposed of the pertinent records in 2015.

¶ 15 Regardless, we conclude that Akins’ petition on its face did not

establish prejudice under Strickland.

¶ 16 First, Akins alleged that trial counsel’s failure to investigate

prejudiced him because trial counsel “asked several questions

designed to require [N.E.] to answer negatively,” and “[w]ithout any

7

reason to question [N.E.’s] credibility, these statements fell flat and

far short of their goal of discrediting [N.E.].” But Akins did not

identify any specific question that was subverted by trial counsel’s

lack of investigation. See Delgado, ¶ 8 (a postconviction court may

summarily deny a claim that is bare and conclusory in nature). Nor

does he do so on appeal — he just generally cites to nearly sixty

pages of N.E.’s cross-examination. In any event, the record

indicates that trial counsel introduced ample other evidence

undermining N.E.’s credibility, including N.E.’s inability to

remember parts of the assault due to intoxication and

inconsistencies in her statements to police and others. Moreover,

the trial court instructed the jury that in assessing N.E.’s

credibility, it could consider that N.E. deliberately violated its

sequestration order by discussing her testimony with S.W.

¶ 17 Second, Akins asserted that trial counsel’s performance

prejudiced him because the unobtained records “could have been

important in establishing [N.E.’s] hope to gain a benefit in her

California case due to her status as a victim in the matter” and “[n]o

evidence of [N.E.’s] arrest, dismissal, or other related interactions

with California’s criminal justice was introduced” which “would

8

have tended to impeach [N.E.’s] credibility.” However, after trial

counsel questioned N.E. in camera, the trial court found that N.E.

was under no “impression that she gained any benefit from the

Boulder County District Attorney’s Office,” and thus precluded trial

counsel from impeaching N.E. with evidence concerning the

dismissal of her charges — a ruling that was affirmed on appeal.

Akins, No. 12CA0199. The court also ruled that while trial counsel

could “inquire as to the fact that N.E. was dishonest to law

enforcement on an occasion in order to avoid an arrest,” evidence of

N.E.’s subsequent arrest and charges were inadmissible. So, even if

the unobtained records included additional evidence as to N.E.’s

arrest or the dismissal of her charges, the evidence would not have

been admissible.

¶ 18 Third, Akins’ petition asserted that the records could have

“more concretely establish[ed] a pattern of making untruthful

statements to officers.” But he offered no explanation as to how the

records could conceivably do so. Nor does he clarify on appeal.

¶ 19 In sum, then, Akins’ allegations of prejudice were clearly

belied by the record or conclusory in nature. Accordingly, we

9

discern no error in the denial of his claim without a hearing.

1

See

Delgado, ¶ 8.

2. Failure to Effectively Cross-Examine N.E.

¶ 20 As noted above, the trial court permitted trial counsel to

“inquire as to the fact that N.E. was dishonest to law enforcement

on an occasion in order to avoid an arrest.” Yet trial counsel

inadvertently forgot to do so when he cross-examined her. Realizing

his mistake, he asked the trial court’s permission to ask N.E. about

the incident on recross-examination. The trial court refused, and

its ruling was affirmed on appeal. Akins, No. 12CA0199.

¶ 21 In his petition, Akins raised trial counsel’s mistake as grounds

for ineffective assistance. He asserted that trial counsel’s deficient

performance so undermined his ability to impeach N.E.’s credibility

1

Akins also claimed that trial counsel’s performance was deficient

for failing to interview the California prosecutor assigned to N.E.’s

case. However, because he does not reassert or otherwise address

that claim on appeal, he has abandoned it. See People v. Osorio,

170 P.3d 796, 801 (Colo. App. 2007) (“[T]hose claims raised in

defendant’s postconviction motion, but not reasserted here, have

been abandoned on appeal.”); People v. Delgado, 2019 COA 55, ¶ 9

n.3 (“We deem abandoned, and won’t address, the seven claims that

defendant raised in his Rule 35(c) motion but didn’t discuss on

appeal.”). And regardless, the record indicates that trial counsel

attempted to interview the prosecutor, and thus his performance

was not deficient in that respect.

10

that it met the standard for Strickland prejudice. However, as

discussed above, the record shows that trial counsel was

nonetheless able to competently challenge N.E.’s credibility and,

additionally, the jury was instructed it could consider N.E.’s

deliberate violation of the court’s sequestration order. Thus, in our

view, the jury would not have had a significantly different

impression of N.E.’s credibility had trial counsel impeached N.E.

with evidence of the traffic stop. Accordingly, the record indicates

that there was no reasonable probability trial counsel’s mistake

affected the outcome of Akins’ trial, controverting Akins’ alleged

claim of prejudice. Thus, denial without a hearing was appropriate.

See Delgado, ¶ 8; Strickland, 466 U.S. at 694; Ardolino, 69 P.3d at

76.

3. Failure to Obtain Surveillance Footage

¶ 22 Akins’ petition alleged that at his first meeting with trial

counsel, Akins recounted that he and N.E. had engaged in

consensual intimate contact just before the assault. Specifically, he

told trial counsel that when the two walked from the bar to his

truck, they were kissing, hugging, and holding hands; he also

11

speculated that there was surveillance footage along the route they

walked that could corroborate his account of the events.

¶ 23 Akins’ petition further alleged that trial counsel “did not

employ an investigator for several weeks” after their first meeting.

And “[w]hen investigations did commence, one of the first steps the

investigator took was to seek out video surveillance [of] the walk Mr.

Akins took back to his car with N.E. . . . from the government

building and the bank near where Mr. Akins parked.” However,

“both locations had deleted their video footage, leaving it

inaccessible to Mr. Akins’ defense team.”

¶ 24 Akins asserted that trial counsel’s failure to promptly seek out

the surveillance footage constituted ineffective assistance. But his

petition left unanswered a question pivotal to his claim: When,

precisely, was the footage deleted? Indeed, Akins’ petition did not

allege with any specificity that the footage was not yet deleted at the

time he told trial counsel about its possible existence. And absent

that allegation, Akins’ petition could not establish that trial

counsel’s delay in pursuing the footage precluded him from

obtaining it. Accordingly, the allegations in his petition, even if

12

true, could not support a finding of Strickland prejudice. See

Strickland, 466 U.S. at 694; Ardolino, 69 P.3d at 76.

¶ 25 Moreover, even if trial counsel could have obtained the footage,

we discern no reasonable probability that doing so would have

changed the outcome of the trial. Akins’ petition asserted that trial

counsel’s performance “prevent[ed] him from presenting an

alternative narrative to the States’ theory of the case.” But he did

not explain how — or even allege that — the footage would have

affected the jury’s decision, particularly where a witness testified to

observing Akins and N.E. engaging in romantic behavior. Nor can

we assume as much — even if N.E. displayed romantic or intimate

behavior towards Akins, such behavior has no bearing on whether

she subsequently consented to sexual activity. And the alleged

footage as described in the petition would not challenge or conflict

with N.E.’s account of the later conduct for which Akins was

charged.

¶ 26 In sum, then, denial of the claim without a hearing was

appropriate. Delgado, ¶ 8.

13

4. Ineffective Voir Dire

¶ 27 Akins also claimed that trial counsel was ineffective for failing

to challenge three jurors for cause at the close of voir dire: Jurors

B, O, and W. Of the three, however, only Juror O ultimately sat on

the jury; thus, trial counsel’s failure to challenge Jurors B and W

could not have affected Akins’ conviction.

2

¶ 28 Akins’ petition pointed out that Juror O “expressed

reservations about [her] ability to be fair if [she] did not hear from

Mr. Akins or the defense.” On appeal, Akins directs us to the

following colloquy:

[TRIAL COUNSEL]: You understand th[at] Mr.

Akins is not compelled to offer any evidence at

all, and that includes that he doesn’t have to

testify. What if, in your mind, it’s he-said she-

said and you only get the she-said? Anybody

going to have a problem with that[?] . . .

[Juror O], you are nodding. What do you think

about that?

2

The record is unclear as to whether trial counsel instead used

peremptory challenges to remove Jurors B and W. If so, Akins did

not allege that he was prejudiced by trial counsel’s choice to

exercise peremptory challenges to remove the jurors rather than

attempt to challenge them for cause. Thus, we do not address

whether a potential loss of peremptory challenges prejudiced Akins.

14

[JUROR O]: I think it would be very hard. It

wouldn’t be hearing both sides. How do you

make a decision hearing only one side?

[TRIAL COUNSEL]: Well, do you think that

because we are looking at these things

differently than we do when resolving a dispute

between friends or kids that this high burden

that the prosecution has, that you could rest it

solely on what they presented to you and say

have they proved what they had to prove

without hearing that other side?

[JUROR O]: I don’t think so. . . . I think you

have to hear both sides. You said an example

of kids. I would never listen to just one and

not the other one speaking before I make the

decision.

¶ 29 A challenge for cause must only be sustained if a juror

“evinc[es] enmity or bias toward the defendant,” § 16-10-103(1)(j),

C.R.S. 2021 — that is, if “a potential juror’s statements compel the

inference that he or she cannot decide crucial issues fairly,” People

v. Merrow, 181 P.3d 319, 321 (Colo. App. 2007). See also People v.

Oliver, 2020 COA 97, ¶¶ 8-9. Though Juror O indicated that she

may have trouble reaching a verdict if Akins elected not to testify,

she did not indicate that she would weigh his silence against him.

Rather, she seemed to suggest that, absent testimony from Akins,

she would not be able conclude that the People met their burden.

15

Thus, if anything, her statements skewed favorably toward the

defense; they did not suggest a bias towards Akins.

¶ 30 Moreover, even if her statements could be construed as

evincing bias, the record indicates that she later affirmed her ability

to impartially consider Akins’ case. See Merrow, 181 P.3d at 321

(Where a juror evinces bias, a challenge for cause need only be

granted “in the absence of rehabilitative questioning or other

counter-balancing information.”); Oliver, ¶ 7 (“When reviewing a

challenge for cause, we examine the entire voir dire of the

prospective juror.”). The trial court instructed the full venire that a

defendant’s choice not to testify cannot be used as an inference of

guilt and that the burden of proof rests solely with the People. It

then asked the potential jurors to raise their hand if they could not

follow those instructions — none did. Trial counsel followed by

asking the full venire whether any juror would not be able to fairly

judge Akins without hearing from him, and, again, no juror

suggested such an inability.

16

¶ 31 Accordingly, we discern no basis to grant a challenge for cause

to Juror O, and thus we cannot conclude that trial counsel’s failure

to challenge Juror O prejudiced Akins.

3

¶ 32 Akins further claims that trial counsel was ineffective for

failing to challenge four other jurors, three of whom served on the

jury: Juror St, Juror A, and Juror Sc. However, he raises this claim

for the first time on appeal; though he alluded to these jurors in the

factual background of his petition, he never asserted that trial

counsel should have challenged them for cause. See 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.”). And in any event, when trial counsel directly

questioned the three jurors during voir dire, each assured him that

they could serve fairly and impartially despite trial counsel’s

3

Akins’ petition also alleged that other “unnamed” jurors similarly

“expressed reservations about their ability to be fair if they did not

hear from Mr. Akins or the defense.” He did not elaborate as to who

those jurors were or indicate what specifically they said during voir

dire that expressed bias towards him. Nor does he clarify on

appeal. Thus, to the extent he raised a claim of ineffective

assistance as to counsel’s failure to challenge these “unnamed”

jurors, any such claim was too bare and conclusory in nature to

warrant an evidentiary hearing. See Delgado, ¶ 8.

17

concerns. See Oliver, ¶ 11 (“In determining whether a potential

juror can set aside any preconceived notions and render an

impartial verdict, the trial court may consider a juror’s assurances

that he or she can serve fairly and impartially.”).

¶ 33 Akins’ petition additionally asserted — in conclusory fashion

— that trial counsel’s failure to challenge the named jurors for

cause left “their responses unpreserved as a potential error in the

trial, all but eliminating the ability to raise the issue on appeal.”

But to the extent he suggested that trial counsel’s performance

deprived him of a possible claim on appeal, he offered no

explanation as to why that claim would have been meritorious.

Nor, as discussed above, do we perceive any basis for granting a

challenge for cause that could support a claim on appeal.

¶ 34 In sum, Akins’ petition did not establish that trial counsel’s

failure to challenge the named jurors prejudiced him under

Strickland. Thus, we discern no error in the postconviction court’s

denial of his claim without a hearing. Delgado, ¶ 8.

5. Failure to Adequately Advise Akins of His Right to Testify

¶ 35 Akins alleged in his petition that he elected not to testify on

the advice of trial counsel, which, he asserted, was deficient in two

18

respects. However, Akins failed to establish that either deficiency

resulted in Strickland prejudice.

¶ 36 First, Akins alleged that trial counsel did not fully advise him

of his right to testify pursuant to People v. Curtis, 681 P.2d 504

(Colo. 1984), and thus his waiver of that right was not voluntary,

knowing, or intelligent such that it was constitutionally valid, see

id. at 514-15 (waiver of the right to testify must be voluntary,

knowing, and intentional). However, while trial counsel may have

failed to sufficiently advise Akins, the record shows that the trial

court gave Akins a full and proper Curtis advisement before he

elected not to testify — a fact that Akins has not disputed below or

on appeal. And Akins affirmed that he understood the court’s

advisement; that he had sufficient time to consider his decision to

waive his right to testify; and that his decision was made

voluntarily. Because Akins was ultimately given a proper Curtis

advisement before he elected not to testify, the record clearly belies

that he suffered any prejudice from trial counsel’s failure to do so.

¶ 37 However, citing People v. Moronez-Quinonez, 2015 COA 161,

Akins posits that “the misadvisement of counsel cannot be

presumed to be cured by a separate advisement by the trial court.”

19

True, the division in Moronez-Quinonez suggested as much,

recognizing that “counsel’s affirmative misrepresentation cannot be

cured by a court advisement as easily as counsel’s failure to

advise.” Id. at ¶ 18. But Moronez-Quinonez concerned only an

attorney’s advice regarding the immigration consequences of a

guilty plea, not the right to testify. See id. at ¶ 5. Moreover, to the

extent the division’s reasoning is equally applicable here, Akins did

not allege that he was affirmatively misadvised — he only asserted

that trial counsel failed to advise him. And “where a defendant

contends that [his] counsel gave [him] no information” — as

opposed to misinformation — “a court’s correct and complete

advisement will generally neutralize counsel’s allegedly deficient

performance.” Id. at ¶ 18. Thus, Akins’ reliance on Moronez-

Quinonez is misplaced.

¶ 38 Second, Akins alleged that trial counsel did not advise him as

to “what evidence would be introduced against him and what

evidence he would be able to introduce” if he took the stand; if trial

counsel had, he alleged, he would have chosen to testify. But Akins

did not allege in his petition what his testimony would have

included or what evidence he would have introduced. Nor did he

20

even allege that his testimony could have affected the outcome of

his trial. Accordingly, his petition failed to sufficiently allege a

reasonable probability that, but for trial counsel’s insufficient

advice, the result of the trial would have been different.

¶ 39 Because the allegations in Akins’ petition, even if true, did not

establish Strickland prejudice, denial of the claim without a hearing

was proper. Delgado, ¶ 8.

III. Compliance with Crim. P. 35(c)(3)(V)

¶ 40 Akins additionally contends that the postconviction court

erred by failing to follow the procedures mandated by Crim. P. 35(c).

Specifically, he appears to argue that because the court directed the

People to respond to Akins’ petition, it was required to grant Akins

an evidentiary hearing under Crim. P. 35(c)(3)(V). True, Crim. P.

35(c)(3)(V) provides that after a postconviction court orders a

response, “the court shall grant a prompt hearing” on the

defendant’s petition. But the rule qualifies that a hearing is not

required if, “based on the pleadings, the court finds that it is

appropriate to enter a ruling.” Id. Thus, even if a postconviction

court orders a response from the People, the rule does not compel

21

the court to hold an evidentiary hearing. Accordingly, we discern

no violation of Crim. P. 35(c)(3)(V).

4

IV. Conclusion

¶ 41 The order is affirmed.

JUDGE WELLING and JUDGE JOHNSON concur.

4

Relatedly, Akins appears to suggest that because the

postconviction court ordered the People to respond instead of

immediately dismissing his petition, it necessarily found that his

claims warranted an evidentiary hearing. Thus, he argues, the

court erred by summarily denying his petition. However, as noted,

a postconviction court may deny a Crim. P. 35(c) petition without a

hearing even after directing the People to respond to it. See Crim.

P. 35(c)(3)(V). Ordering a response from the People does not equate

to a finding that a defendant’s claims warrant a hearing.