Peo v. Ray

19CA1377 Peo v Ray 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1377

Adams County District Court Nos. 13CR2104, 13CR3054 & 14CR2609

Honorable Priscilla J. Loew, Judge

Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dexter Keith Ray,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE HARRIS

Navarro and Freyre, JJ., concur

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

Announced January 27, 2022

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-

Appellant

1

¶ 1 Dexter Keith Ray appeals the district court’s summary denial

of his Crim. P. 35(c) motions. We affirm.

I. Background

¶ 2 In 2013 and 2014, Ray was charged with committing the

following offenses in three separate criminal cases in which his wife

was the primary victim:

• 13CR2104 – July 2013: sexual assault, third degree assault,

child abuse, violation of a protection order, and obstruction of

a telephone or telegraph service;

• 13CR3054 – October 2013: tampering with a witness or victim

and violation of a protection order; and

• 14CR2609 – September 2014: second degree burglary, third

degree assault, three counts of child abuse, and violation of a

protection order.

¶ 3 The parties agreed to a global disposition of all three cases.

Pursuant to that agreement, Ray pleaded guilty in the 2013 cases

(which had previously been joined) to one count of attempted sexual

assault and one count of conspiracy to commit witness or victim

tampering, both class 5 felonies, and, in the 2014 case, to one

2

count of first degree criminal trespass, a class 5 felony, and three

counts of misdemeanor child abuse.

¶ 4 The case proceeded to sentencing in March 2015. Because

Ray had pleaded guilty to a sex offense, the court ordered that an

offense specific psychological evaluation be conducted in addition to

a presentence investigation report (PSI). The offense specific

evaluation does not appear to be in the record, but the court

discussed it at the sentencing hearing. The court specifically noted

that Ray had provided a lengthy statement in which he

“acknowledge[d] that there was a sexual assault” and “g[ave] an

explanation for it.” As a result, the court discounted the victim’s

statement at the hearing that Ray had not sexually assaulted her:

“No matter how much [the victim] stands here repeatedly and says

it didn’t happen, the fact is Mr. Ray says it did.” The court also

recognized that Ray had “mental health issues” that were “no

doubt” connected to “a horrific childhood.” After carefully

considering all of the circumstances, the court sentenced Ray to

concurrent three-year terms of imprisonment in the 2013 cases,

and a consecutive three-year term of imprisonment in the 2014

case.

3

¶ 5 Through counsel, Ray then filed a Crim. P. 35(b) motion for

reconsideration of his sentences. The motion reiterated that Ray

had admitted to the assault, had acknowledged that he “could

benefit from ‘sexual misconduct’ treatment,” and had endured a

traumatic childhood resulting in mental health issues. The court

denied the motion, finding that it had considered all relevant

information at the sentencing hearing and that the original

sentence was appropriate.

¶ 6 In October 2017 and August 2018, Ray filed two pro se Crim.

P. 35(c) motions.

1

The first motion, submitted on a preprinted form,

alleged only that “[at the sentencing hearing, the] alleged victim told

the court that I did not commit [the] crimes of 13CR2104,

13CR3054, and 14CR2609.” In response to the question, “If you

did not appeal, briefly explain why you did not,” Ray wrote,

1

The district court initially denied Ray’s Crim. P. 35(c) motions as

untimely, but later rescinded that order after realizing that Ray had

filed his initial motion within the three-year deadline for challenging

a felony conviction. The court did not address the fact that Ray

appeared to be challenging the validity of his misdemeanor child

abuse convictions as well. A collateral attack on a misdemeanor

conviction must be filed within eighteen months of the entry of

judgment — or, in Ray’s case, by September 3, 2016. See § 16-5-

402(1), C.R.S. 2021. Accordingly, we construe Ray’s Rule 35(c)

motions to challenge only his felony convictions.

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“Because I took a plea deal before the victim addressed the court on

03/03/15.”

¶ 7 The second motion raised additional claims as follows:

• Counsel failed to “admit evidence” of a notarized letter

written by the victim in which she recanted her earlier report to

police and asserted that while Ray had hit her, he had not sexually

assaulted her.

• Counsel failed to take some unspecified action with respect

to a 911 call in which the victim recanted accusations related to the

charges in 14CR2609.

• The victim’s letter constituted newly-discovered evidence.

• At some point during the pendency of the case, the victim

appeared at counsel’s office and acted “belligerent and threatening,”

thereby creating “an actual conflict of interest.”

• Counsel failed to inform Ray that he could appeal the trial

court’s denial of the Rule 35(b) motion.

• Counsel failed to inform Ray that he could directly appeal his

conviction.

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• Counsel instructed Ray not to deny the sexual assault

accusations during his PSI interview or he would “definitely be

denied any possibility of community corrections or probation.”

• Counsel coerced Ray into accepting the plea deal by advising

him that if he went to trial and lost, he could face up to sixty-four

years in prison.

¶ 8 Later, appointed counsel filed a supplemental Rule 35(c)

motion, alleging that Ray “was coerced into pleading guilty to

attempted sexual assault” because his public defender failed to

“provide exculpatory evidence” — the letter from the victim — to the

prosecutor during plea negotiations. As postconviction counsel

explained, Ray “expected his public defender to show the . . . letter

from [the victim] to [the prosecutor] in order to secure a dismissal of

the sexual assault count.” But when the public defender did not

use the letter during plea negotiations, “in his mind,” Ray believed

that counsel would not use the letter at trial either, and so he had

to plead guilty or “risk going to trial without an adequate defense.”

¶ 9 The postconviction court summarily denied Ray’s

postconviction motions. With respect to the primary claim — that

counsel was ineffective for failing to use the victim’s letter during

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plea negotiations — the court concluded that trial counsel had

made a reasonable strategic decision to forgo using the letter

because it had “little to no exculpatory value” and, in fact, might

support the theory that Ray was controlling and abusive in his

relationship with the victim. As for the remaining claims, the court

found that the allegations were conclusory or that, even if true, they

did not state a claim for relief.

II. Discussion

¶ 10 On appeal, Ray contends that the district court erred by

denying his postconviction motions without a hearing. We disagree.

Though our reasoning differs in certain respects from that of the

district court, see, e.g., People v. Ortega, 266 P.3d 424, 426 (Colo.

App. 2011) (appellate court may affirm district court’s ruling on any

ground supported by the record), we agree with the court’s

conclusion that Ray’s motions fail to state a claim for postconviction

relief.

A. Legal Principles and Standard of Review

¶ 11 To prevail on a claim of ineffective assistance of counsel, the

defendant must show that (1) counsel’s performance was deficient,

meaning it fell below an objective standard of reasonableness; and

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(2) the deficient performance prejudiced the defendant, meaning

there is a reasonable probability that, but for counsel’s errors, the

outcome would have been different. Strickland v. Washington, 466

U.S. 668, 687-88, 694 (1984). To establish prejudice after a guilty

plea, the defendant must show that if counsel had performed

competently, he would have rejected the plea offer and insisted on

going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). If a

defendant fails to establish either prong of the Strickland test, he is

not entitled to relief. People v. Osorio, 170 P.3d 796, 800 (Colo.

App. 2007).

¶ 12 A postconviction motion alleging ineffective assistance of

counsel may be denied without a hearing 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.

¶ 13 We review de novo the summary denial of a Rule 35(c) motion.

People v. Lopez, 2015 COA 45, ¶ 68.

8

B. The Postconviction Motions Fail to State a Claim

¶ 14 On appeal, Ray reasserts five of the claims raised in his Rule

35(c) motions. (Any claims raised in the motions but not reasserted

on appeal are deemed abandoned. See People v. Delgado, 2019

COA 55, ¶ 11 n.3.) He contends that counsel was ineffective for (1)

failing to use the victim’s letter during plea negotiations; (2)

coercing him to plead guilty by advising him of his sentencing

exposure; (3) failing to advise him that he had a right to appeal his

convictions; (4) failing to advise him that he had a right to appeal

the denial of his Rule 35(b) motion; and (5) representing him despite

an actual conflict of interest.

1. Failure to Use the Victim’s Letter

¶ 15 Ray argues, as he did in his supplemental Rule 35(c) motion,

that counsel’s performance was deficient because she failed to

“utilize available exculpatory evidence during plea negotiations or

formulation of a theory of defense showing Mr. Ray did not sexually

assault his wife.” Counsel’s failure to use the letter prejudiced him,

Ray says, because it “caused [him] to lose all confidence in his

attorney and plead guilty.”

9

¶ 16 We discern at least two problems with this claim. First, Ray’s

allegation is that counsel’s deficient performance caused him to lose

confidence in counsel’s commitment to “unveil[ing] the truth,”

which, in turn, caused him to plead guilty. But under Strickland’s

test, the lawyer’s deficient performance must itself cause the

prejudice. Strickland, 466 U.S. at 693-94 (explaining that it is “not

enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding”; instead, the

defendant must show that “but for counsel’s unprofessional errors,”

the outcome would have been different”).

¶ 17 Ray’s allegation of prejudice, which turns on his own

subjective beliefs about his lawyer’s commitment to the case, is

simply too attenuated from the lawyer’s alleged deficient

performance. See, e.g., Soto-Beltran v. United States, 946 F. Supp.

2d 312, 318 (S.D.N.Y. 2013) (counsel’s alleged deficient

performance in failing to secure a plea offer allowing for cooperation

was too attenuated from defendant’s claim of prejudice that he

failed to get a cooperator’s sentencing benefit). There is direct and

logical prejudice that flows from an allegation that counsel failed to

share exculpatory evidence with the prosecutor during plea

10

negotiations: that the plea offer was not as favorable as it should

have been and, if counsel had performed competently, the

defendant would have accepted an offer of a shorter sentence. But

Ray does not make that argument because it does not satisfy the

prejudice requirement that goes with his claim. He has to show

that in the absence of counsel’s error, he would have rejected any

plea offer and gone to trial. As a result, he is forced to devise a

theory of prejudice that simply fails to connect sufficiently to

counsel’s alleged deficient performance.

¶ 18 Second, the claim amounts to an allegation that counsel had a

contrary view of the utility of the victim’s letter and, as a result, Ray

felt compelled to plead guilty. But disagreements about defense

strategy alone do not support a claim of ineffective assistance of

counsel. See People v. Apodaca, 998 P.2d 25, 29 (Colo. App. 1990).

We must “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” and

the defendant “must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

trial strategy.”’ Lopez, ¶ 59 (quoting Strickland, 466 U.S. at 689).

Ray did not allege any facts that, if true, would overcome the

11

presumption. For example, he did not allege that counsel’s failure

to use exculpatory evidence was based on a lack of investigation.

See Fisher v. Gibson, 282 F.3d 1283, 1296 (10th Cir. 2002) (where

counsel has utterly failed to prepare or investigate, she cannot rely

on a claim of strategy to show that her conduct was not deficient).

To the contrary, he acknowledged that his lawyer directed an

investigator to interview the victim, and counsel then shared the

letter and the notes of the interview with Ray at the jail.

¶ 19 In his reply brief, Ray argues that even if the victim’s recanting

letter was so unreliable as to be useless, counsel was nonetheless

ineffective for failing to sufficiently explain her reasons for not

presenting it to the prosecutor. This argument depends on the

same attenuated theory of prejudice: without a sufficient

explanation, a defendant might feel so ignored by his lawyer that he

would feel compelled to plead guilty. But the merits of an

ineffective assistance of counsel claim cannot turn on the

psychological fortitude of a particular defendant. A lawyer’s

performance is only deficient if it is objectively unreasonable. See

People v. Terry, 2019 COA 9, ¶ 25. In any event, Ray did not allege

in any of his postconviction motions that counsel was ineffective for

12

failing to communicate her reasons for not using the victim’s letter,

so we do not consider that argument on appeal. See People v.

Stovall, 2012 COA 7M, ¶ 3 (allegations not raised in the Rule 35(c)

motion or during a hearing on the motion are not properly

preserved and may not be raised for the first time on appeal).

¶ 20 Accordingly, we conclude that the district court properly

denied this claim without a hearing.

2. Advisement Regarding Possible Sentence

¶ 21 Next, Ray argues that he was coerced into pleading guilty

because counsel warned him that he could face a sixty-four-year

sentence if he were convicted of the original charges after a trial.

Because Ray has failed to allege deficient performance, this claim

fails.

¶ 22 Counsel has a duty to inform a client about the risks of going

to trial, which includes advice about the maximum potential

sentence. See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009)

(counsel’s performance was deficient where counsel failed to inform

his client that he would face indeterminate life sentences if he

proceeded to trial). Ray does not allege that counsel’s advisement

was inaccurate. Instead, in his motions, he implied only that the

13

threat of a long sentence induced his guilty plea, rendering it

involuntary. The Supreme Court, however, has “rejected the

argument that a guilty plea is invalid whenever motivated by the

defendant’s desire to accept the certainty or probability of a lesser

penalty rather than face a wider range of possibilities extending

from acquittal to conviction of a more serious crime.” People v.

McCormick, 881 P.2d 423, 427 (Colo. App. 1994) (citing Brady v.

United States, 397 U.S. 742, 750 (1970)); see also Simons v. State,

719 S.W.2d 479, 481 (Mo. Ct. App. 1986) (“For counsel to predict

the possibility of a lengthy sentence following a jury trial does not

amount to a coerced and involuntary plea.”).

¶ 23 On appeal, Ray therefore raises a new argument,

hypothesizing that counsel’s “demeanor, tone of voice, or method of

communication” may have placed “undue pressure” on him to plead

guilty. True, a guilty plea is involuntary and therefore invalid if it is

obtained “by actual or threatened physical harm or by mental

coercion overbearing the will of the defendant.” Brady, 397 U.S. at

750; see also Sanchez-Martinez v. People, 250 P.3d 1248, 1255

(Colo. 2011) (A guilty plea is not valid if it is the product of “such

factors as misunderstanding, duress, or misrepresentation by

14

others.” (quoting Blackledge v. Allison, 431 U.S. 63, 75 (1977)). But

in his motions, Ray did not allege that his lawyer’s demeanor, tone

of voice, or manner of communication overbore his will. A

defendant is not entitled to an evidentiary hearing to try to develop

new theories or claims; he is entitled to a hearing only if he

“allege[s] facts that, if proven, would entitle him to postconviction

relief.” White v. Denver Dist. Ct., 766 P.2d 632, 636 (Colo. 1988).

¶ 24 Moreover, the record refutes any suggestion that counsel

threatened or coerced Ray into accepting the global plea deal that

greatly reduced his sentencing exposure. During the providency

hearing, Ray unequivocally affirmed that he was entering his guilty

pleas “knowingly and voluntarily.” He told the court that no one

had “forc[ed] [him] or put[] any pressure upon” him to enter his

pleas. While a defendant’s colloquy with the court at the

providency hearing is not necessarily dispositive of the validity of

his or her guilty plea, see, e.g., People v. Morones-Quinonez, 2015

COA 161, ¶ 17, the appellate court can consider the defendant’s

statements at the providency hearing in determining whether an

evidentiary hearing is warranted, see People v. Canody, 166 P.3d

218, 220 (Colo. App. 2007).

15

¶ 25 Based on the lack of factual allegations in the motions and

Ray’s statements at the providency hearing, we conclude that the

court properly denied the claim of coercion without a hearing.

3. Right to Direct Appeal

¶ 26 Third, Ray argues that counsel was ineffective for failing to

advise him of his right to a direct appeal. Here, too, he has failed to

allege deficient performance or prejudice with sufficient specificity.

¶ 27 Counsel’s failure to file a notice of appeal is not necessarily

deficient so long as counsel has not disregarded specific

instructions from a defendant. Roe v. Flores-Ortega, 528 U.S.470,

478 (2000). When counsel receives no instruction from the

defendant on whether to file or forgo an appeal, the question is

whether counsel has a duty to consult with the defendant about his

appeal rights. Id. That duty arises only when counsel has a reason

to think that (1) a rational defendant would want to appeal

(because, for example, there are nonfrivolous grounds for appeal) or

(2) the particular defendant is interested in appealing. Id. at 480.

¶ 28 Thus, it is not enough for Ray to state only that his lawyer did

not advise him of his right to appeal. On its own, that failure does

not constitute deficient performance. To sufficiently allege deficient

16

performance, Ray had to assert that his lawyer had a duty to

consult with him about his appeal rights, either because there were

nonfrivolous grounds for a direct appeal despite his guilty plea, see

Laycock v. State, 880 F.2d 1184, 1188 (10th Cir. 1989) (“Normally,

when a defendant pleads guilty, he has foreclosed his right to

appeal.”), or because he indicated some interest in appealing. He

has asserted neither.

¶ 29 Nor has he alleged any prejudice from counsel’s failure to

advise him of his rights. To establish prejudice, a defendant must

demonstrate “that, but for counsel’s deficient conduct, he would

have appealed.” Flores-Ortega, 528 U.S. at 486. Ray has never

alleged that if counsel had consulted with him, he would have

directly appealed his convictions. In fact, on his preprinted

postconviction form, he explained that he did not file a direct appeal

not because he was unaware of his rights, but because he pleaded

guilty before the victim addressed the court at sentencing.

¶ 30 Thus, Ray’s allegations, even if true, are insufficient to state a

claim for relief, and the district court properly denied this claim

without a hearing.

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4. Right to Appeal Crim. P. 35(b) Motion

¶ 31 In his next claim, Ray alleges that counsel was ineffective for

failing to advise him of his right to appeal the denial of his Rule

35(b) motion. This claim fails on the prejudice prong.

¶ 32 Defendants have only a limited right to appeal the denial of a

motion for reconsideration of a sentence. See People v. Barnett,

2020 COA 167, ¶ 31. The propriety of the sentence is not subject to

review; rather, the order is reviewed to “determine if the

postconviction court failed to exercise its judicial discretion by

refusing to consider any information in mitigation.” Id.

¶ 33 Ray did not allege that he was entitled to a review of the order

denying his Rule 35(b) motion because the court had failed to

properly exercise its discretion or refused to consider mitigating

evidence. Nor did he allege that he would have filed an appeal of

the order if his lawyer had advised him of his appeal rights. And

the record shows that the Rule 35(b) motion advanced arguments

expressly considered by the court at sentencing.

¶ 34 Thus, this claim, too, was properly denied without a hearing.

5. Conflict of Interest

18

¶ 35 Finally, Ray argues that counsel was ineffective because she

“labor[ed] under a conflict of interest.” The allegations with respect

to this claim are conclusory.

¶ 36 In his motions, Ray alleged that a conflict of interest arose

after the victim showed up at counsel’s office and acted in a

belligerent and threatening manner. But he did not explain the

nature of the conflict or how it supposedly affected counsel’s

performance.

¶ 37 On appeal, it is not even clear what kind of a conflict Ray

contends is at issue — whether counsel had an actual conflict of

interest based on divided loyalties, see, e.g., West v. People, 2015

CO 5, ¶ 16, or whether counsel had a conflict with Ray that

resulted in a complete breakdown in communication, see People v.

Bergerud, 223 P.3d 686, 694 (Colo. 2010) (differentiating between a

conflict of interest and complete breakdown in communication

between counsel and the defendant).

¶ 38 In any event, his motions did not allege any facts that would

establish either kind of conflict. Without additional factual

allegations, the claim is too conclusory to warrant a hearing.

19

¶ 39 For the first time on appeal, Ray asserts that the victim’s

conduct “raises the concern” that counsel might have “wished to

end representation of Mr. Ray in order to prevent future

disturbances,” and would have been “predisposed to seeking a plea

agreement.” That argument is still insufficient. For one thing, it is

hypothetical — Ray does not allege that his lawyer was so affected

by the victim’s conduct that she wanted to end the representation.

Instead, he says that the circumstances raise this concern. The

argument also lacks any allegation that counsel’s wish to “end [the]

representation” and “seek[] a plea agreement” prejudiced Ray. Ray

ultimately accepted the plea offer, so the existence of prejudice is

not obvious.

¶ 40 Accordingly, we agree with the district court that Ray’s claim

of a conflict of interest is vague and conclusory and therefore does

not warrant a hearing.

III. Conclusion

¶ 41 The order is affirmed.

JUDGE NAVARRO and JUDGE FREYRE concur.