Peo v. Richter

23CA1200 Peo v Richter 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1200
Boulder County District Court No. 20CR300
Honorable Nancy W. Salomone, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Conrad Richter,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

H. Craig Skinner, Denver, Colorado, for Defendant-Appellant
¶1 John Conrad Richter appeals the postconviction court’s order

denying his Crim. P. 35(c) motion (the motion) without a hearing.

We affirm.

I. Background

¶2 The following facts appear in the documents concerning

Richter’s arrest and the presentence investigation report in his case.

¶3 The victim — Richter’s then-girlfriend — reported that, while

highly intoxicated one night, Richter punched a hole in a wall in her

apartment and broke a glass jar on the floor. The victim told

Richter to leave. He did so but returned shortly thereafter and

demanded to be let inside. When the victim refused to let him in,

Richter broke the door open and entered the apartment.

¶4 Richter took the victim’s phone, so she could not call for help.

He then repeatedly hit her, punched her in the face, and choked her

until she lost consciousness. Eventually, the victim ran barefoot

out of the apartment and into an alleyway, wearing only a t-shirt

and underwear. Richter chased her with a broom, struck her with

it “as hard as he could,” and demanded that she return to the

apartment.

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¶5 Once back in the apartment, Richter grabbed a knife and held

it to the victim’s back. He cut the victim multiple times on her

upper thigh before he cut himself on his left arm. Richter

eventually stopped his aggressive behavior and left the victim’s

apartment in the morning.

¶6 After Richter left, the victim contacted Richter’s father via

FaceTime and told him about the incident and her injuries.

Richter’s father saw on the FaceTime video that the victim had

facial and neck injuries. He contacted the police, who responded to

the victim’s apartment. Richter’s father reported that, while

speaking with Richter on the phone, Richter told him that he “was

aware of what happened between him and [the victim] and that he

had stabbed himself with a knife in the arm because of it.”

¶7 The responding officers noted that the victim’s apartment had

been cleaned before their arrival, although they noted broken glass

in a trash can. The officers saw “multiple holes in walls throughout

the apartment as well as extensive damage to the door and

doorframe of the apartment.” They photographed the damage to the

apartment.

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¶8 The officers reported “it was apparent that [the victim] had

been injured based on the red and purple marks on her neck and

face.” The victim was transported to a hospital for evaluation.

Detectives who saw her at the hospital noted numerous injuries

throughout her body. One detective “observed injuries to [the

victim’s] neck that were consistent with strangulation which

included abrasions near both collar bones and under her chin.”

Photos documented the victim’s injuries.

¶9 In addition, the police obtained a security video from one of

the victim’s neighbors. The video showed the interaction between

Richter and the victim outside her apartment on the night of the

incident. Officers who reviewed the video said it depicted the victim

running barefoot out the front door and into an alleyway, wearing

only a t-shirt and underwear, and Richter chasing the victim while

holding a broom and striking the victim on her right side while

demanding that she return to the apartment. After the victim

returned to the apartment, the security video recorded the voice of a

female screaming for help and repeatedly saying, “No.”

¶ 10 The victim’s upstairs neighbor reported that, on the night of

the incident, she was awakened by loud noises coming from the

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victim’s apartment. The neighbor told police that she heard

slamming doors and yelling. The neighbor then heard Richter leave

the apartment and, upon his return, heard him “pounding on the

door” and demanding to be let in. After the victim refused to let

Richter in, the neighbor heard “slamming, hole punching[,] and

glass shattering.”

¶ 11 The neighbor also provided the police with four audio clips she

recorded during the incident. Detectives described the contents of

the recordings as follows:

[I]n the first recording, detectives could hear a
male voice saying, “Open the goddamn door[.”]
The female responded but detectives could not
hear what she was saying. The male
responded and stated, “I’m not going to
fucking hurt you.” The female again
responded but detectives could not make out
what she said. The male then stated, “Open
the fucking door. . . . You have five seconds.”
Detectives then heard extremely loud banging
noises and [Richter] again stated, “Open the
door[.”] After this, there was an even louder
banging noise which sounded as if the door
was busted down. There was a lot of noise
afterwards and detectives could not make out
what the noise was from. The recording then
ended.

The second recording had a lot of banging
noises followed by a female screaming,
shouting[,] and crying out.

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The third recording started with a female voice
saying, “Get out” and continued with more
screaming and shouting from a female voice.
It was difficult to hear what was being said but
it seemed as if a physical struggle was
occurring. At times, the female is heard
saying, “No[,”] “Please[,]” and “Don’t do it[.”] A
male’s voice was also heard in the recording,
but it was unclear what he said.

The fourth audio recording started with a
female screaming and pleading. The female
was heard screaming, “Please!” and the rest
was inaudible. It sounded like the female was
screaming but her mouth seemed to be
covered or muffled by something.

¶ 12 When taking Richter into custody, officers observed cuts and

puncture wounds on his left arm. At a hospital, Richter told

doctors that he had cut himself with a knife. Officers photographed

Richter’s injuries. Richter says in his opening brief that he told

police “he was a ‘monster’ and that his actions were ‘horrendous.’”

Richter claimed to have no memory of the incident.

¶ 13 Richter was charged with first degree assault, first degree

burglary, two counts of second degree assault, criminal extortion,

two counts of menacing, nine counts of third degree assault,

criminal mischief, obstruction of telephone or telegraph service,

harassment, and five crime of violence sentence enhancer counts.

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¶ 14 Before trial, the parties reached a plea agreement, under

which Richter pleaded guilty to the original counts of second degree

assault and third degree assault and to added counts of second

degree burglary and second degree assault (domestic violence).

Richter waived the establishment of a factual basis to support his

guilty pleas. In exchange, the prosecution moved to dismiss the

remaining counts against Richter and stipulated to an aggregate

six-year sentence in the custody of the Department of Corrections.

Richter signed the written plea agreement, in which he expressly

waived his right “to have a sentence reconsideration.” The trial

court accepted Richter’s guilty pleas and imposed the stipulated

sentence.

¶ 15 Richter filed the motion one year later. In the motion, he

raised multiple ineffective assistance of counsel claims. The

postconviction court denied the motion without a hearing in a

comprehensive written order. In the order, the court primarily

found that, even if plea counsel’s representation was deficient,

Richter failed to establish that the deficient representation

prejudiced him. Richter appeals the order denying the motion.

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II. Legal Authority and Standard of Review

¶ 16 “A criminal defendant is constitutionally entitled to effective

assistance from [the defendant’s] counsel.” Ardolino v. People, 69

P.3d 73, 76 (Colo. 2003). The right to effective assistance of counsel

encompasses counsel’s assistance during the plea bargaining

process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v.

Frye, 566 U.S. 134, 144 (2012). “[A] defendant may challenge [a]

guilty plea on the grounds of ineffective assistance of counsel when

that challenge goes to the issue of whether the plea was knowingly,

voluntarily, and intelligently entered.” People v. Stovall, 2012 COA

7M, ¶ 13, 284 P.3d 151, 154.

¶ 17 To 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 is fatal to an ineffective assistance claim.

People v. Thompson, 2020 COA 117, ¶ 50, 485 P.3d 566, 574.

¶ 18 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

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(1984); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying

the Strickland test to ineffective assistance of counsel claims in

cases involving guilty pleas). “[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.

¶ 19 To establish prejudice, a defendant must show “there is a

reasonable probability that, but for counsel’s unprofessional errors,

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

466 U.S. at 694. Reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Id.

¶ 20 “To prove prejudice in the context of a guilty plea, the

defendant must establish a reasonable probability that but for

counsel’s errors, [the defendant] would not have pleaded guilty and

would have insisted on going to trial.” People v. Vicente-Sontay,

2014 COA 175, ¶ 20, 361 P.3d 1046, 1051. Further, the defendant

“must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.” Padilla v.

8
Kentucky, 559 U.S. 356, 372 (2010); see also People v. Finney, 2012

COA 38, ¶ 71, 328 P.3d 205, 219, aff’d, 2014 CO 38, 325 P.3d

1044.

¶ 21 We review de novo a trial court’s summary denial of a Crim. P.

35(c) motion. People v. Cali, 2020 CO 20, ¶ 14, 459 P.3d 516, 519.

A defendant need not set forth the evidentiary support for the

allegations in a Crim. P. 35 motion, but instead need only assert

facts that, if true, would provide a basis for relief. White v. Denver

Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A court may deny a Crim.

P. 35(c) motion without an evidentiary hearing only where the

motion, files, and record clearly establish that the defendant’s

allegations are without merit and do not warrant relief. Ardolino, 69

P.3d at 77. Thus, “[t]he denial of a claim of ineffective assistance of

counsel without a hearing is justified if, but only if, the existing

record establishes that the defendant’s allegations, even if proven

true, would fail to establish either constitutionally deficient

performance or prejudice.” People v. Chavez-Torres, 2016 COA

169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843.

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III. Analysis

¶ 22 In the motion, Richter asserted various allegations regarding

plea counsel’s deficient representation. However, he does not

clearly identify how the alleged deficient representation caused him

prejudice.

¶ 23 We construe Richter’s arguments as asserting that (1) plea

counsel was so deficient that Richter was actually or constructively

denied the assistance of counsel altogether; (2) plea counsel’s

deficiencies rendered the proceeding fundamentally unfair, which

either satisfied Strickland’s prejudice prong or constituted

structural error requiring automatic reversal; and (3) he established

prejudice because his allegations, if true, demonstrated that, but for

plea counsel’s deficiencies, the result of the proceeding would have

been different. Accepting as true Richter’s allegations of deficient

performance, we address and reject each of his prejudice

arguments.

¶ 24 First, we conclude that Richter failed to allege facts that, if

true, would establish that plea counsel’s deficiencies actually or

constructively denied him the assistance of counsel.

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¶ 25 In some contexts, the prejudice resulting from a counsel’s

deficient performance is presumed. Strickland, 466 U.S. at 691. As

relevant here, “[a]ctual or constructive denial of the assistance of

counsel altogether is legally presumed to result in prejudice.” Id. at

692. Under such circumstances, the Strickland prejudice inquiry

does not apply and the defendant is not required to make an

additional showing of prejudice. People v. Thomas, 2015 COA 17,

¶ 12, 411 P.3d 124, 127; People v. Robles, 74 P.3d 437, 439 (Colo.

App. 2003).

¶ 26 “[A] court may presume prejudice if counsel ‘entirely fails to

subject the prosecution’s case to meaningful adversarial testing.’”

A.R. v. D.R., 2020 CO 10, ¶ 66, 456 P.3d 1266, 1281 (quoting

United States v. Cronic, 466 U.S. 648, 659 (1984)). However, “this

presumption of prejudice applies only in relatively narrow

circumstances, as, for example, when counsel was not made

available, was prohibited by the trial court from participating in a

critical aspect of the proceeding, or was acting under a conflict of

interest.” Id.; see also Ybanez v. People, 2018 CO 16, ¶ 25, 413

P.3d 700, 706; Thomas, ¶ 12, 411 P.3d at 127.

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¶ 27 The information in the appellate record demonstrates that,

even if plea counsel’s performance was deficient, Richter was not

actually or constructively denied the assistance of counsel

altogether. Significantly, as the postconviction court noted, plea

counsel negotiated a plea agreement that required the dismissal of

numerous felony charges pending against Richter. If Richter

rejected the plea agreement and was convicted on those charges, he

would have faced a substantially longer prison sentence than the

six-year sentence specified in the plea agreement.

¶ 28 Accordingly, we reject Richter’s claim that he was actually or

constructively denied the assistance of counsel. Richter fails to

establish that plea counsel’s performance, viewed in its entirety, fell

within the narrow circumstances that warrant the presumption of

prejudice. See Bell v. Cone, 535 U.S. 685, 697 (2002) (rejecting the

defendant’s presumption of prejudice argument because counsel’s

failures occurred at specific points during a proceeding rather than

throughout the proceeding as a whole); Cronic, 466 U.S. at 659

(holding there can be no presumption of prejudice unless the denial

of counsel is “complete” and counsel “entirely” fails to subject the

prosecution’s case to testing).

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¶ 29 Second, we are not persuaded that Richter’s assertions of plea

counsel’s deficient performance, even if true, established that the

proceeding was fundamentally unfair such that he was entitled to

postconviction relief.

¶ 30 In Weaver v. Massachusetts, 582 U.S. 286 (2017), the United

States Supreme Court addressed whether a defendant must

demonstrate prejudice when the defendant argues in a

postconviction motion that trial counsel was ineffective by not

objecting to a structural error — specifically, the trial court’s

closure of the courtroom to the public. Id. at 290, 293-94, 299.

The Court initially acknowledged that, as relevant here, “an error

has been deemed structural if the error always results in

fundamental unfairness” and that structural errors are not subject

to a prejudice inquiry and require automatic reversal. Id. at 294-

96, 299.

¶ 31 The Court then considered the effect of raising a structural

error argument through a postconviction ineffective assistance

claim and the petitioner’s related interpretation of Strickland that,

“even if there is no showing of a reasonable probability of a different

outcome, relief still must be granted if the convicted person shows

13
that attorney errors rendered the trial fundamentally unfair.” Id. at

300.

¶ 32 The Court did not adopt this reading of Strickland but said

that, “[f]or the analytical purposes of this case,” it would “assume

that petitioner’s interpretation of Strickland is the correct one.” Id.

The Court then concluded that, because “not every public-trial

violation will in fact lead to a fundamentally unfair trial,” when a

defendant “raises a public-trial violation via an

ineffective-assistance-of-counsel claim, Strickland prejudice is not

shown automatically.” Id. at 300-01. Rather, “[t]he burden is on

the defendant to show either a reasonable probability of a different

outcome in his or her case or, as the Court has assumed for these

purposes, to show that the particular public-trial violation was so

serious as to render his or her trial fundamentally unfair.” Id. at

301 (citation omitted).

¶ 33 Richter argues that, under Weaver, “[a]n attorney’s deficient

performance is prejudicial when counsel’s errors rendered the trial

process fundamentally unfair — even if those errors did not have a

probable effect on the trial outcome.” Thus, Richter claims that

plea counsel’s deficient performance constituted structural error or

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entitled him to a presumption of prejudice because Richter “was

encouraged to accept an offer based on a very limited and narrow

version of the facts” and “[c]ounsel’s actions and inactions resulted

in a fundamentally unfair process.”

¶ 34 Weaver is distinguishable for the following reasons:

• In that case, the Court expressly limited its holding to

public trial violations raised in ineffective assistance

claims. See id. at 299 (“The Court now turns to the

proper remedy for addressing the violation of a structural

right, and in particular the right to a public trial.”).

• As noted, the Court rejected the petitioner’s

interpretation of Strickland. See id. at 300-01 (“[W]hen a

defendant raises a public-trial violation via an

ineffective-assistance-of-counsel

claim, Strickland prejudice is not shown automatically.

Instead, the burden is on the defendant to show either a

reasonable probability of a different outcome in his or her

case” or “that the particular public-trial violation was so

serious as to render his or her trial fundamentally

unfair.”).

15
• Unlike the defendant in Weaver, Richter is not

challenging plea counsel’s failure to object to a structural

error but, instead, claims that plea counsel’s performance

itself resulted in structural error because it was so

deficient as to render the proceeding fundamentally

unfair.

Accordingly, Weaver does not support Richter’s assertion that the

ineffective assistance of counsel itself can constitute structural

error.

¶ 35 Not only does Richter’s argument premised on Weaver lack

merit, but we agree with the postconviction court that Richter’s bald

allegations were insufficient to establish that plea counsel’s

performance rendered the proceeding fundamentally unfair. See

People v. Romero, 2015 COA 7, ¶ 53, 411 P.3d 897, 906 (declining

to address an argument that the defendant presented in a

perfunctory and conclusory manner).

¶ 36 Third, we conclude that Richter failed to allege facts that, if

true, would establish a reasonable probability that, but for plea

counsel’s alleged deficiencies, the result of the proceeding would

have been different.

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¶ 37 In the motion, Richter argued that his counsel provided

deficient performance by failing to (1) sufficiently investigate the

case to discover witnesses whose testimony would have undermined

the victim’s credibility; (2) file pretrial motions to exclude certain

evidence; (3) investigate Richter’s theory that he had been

unknowingly drugged before the incident; (4) investigate how the

death of one of the responding officers impacted his case; (5)

adequately explain the plea deal to Richter; (6) explain the

consequences of waiving his Crim. P. 35(b) right to seek a sentence

reconsideration in light of the COVID-19 pandemic; and (7) retain

an expert to review the photographs of the victim’s injuries and

opine on the cause of her injuries.

¶ 38 In its order denying the motion, the postconviction court held

that Richter did not establish that any of these asserted errors

prejudiced him. Specifically, the court found that Richter failed to

explain (1) why the undiscovered credibility testimony would have

been admissible at trial or would have significantly undermined the

prosecution’s case, which included the inculpatory video and audio

recordings, photographs of the victim’s injuries and the damage to

the apartment, and Richter’s inculpatory statements; (2) the factual

17
or legal bases for filing a suppression motion and why a successful

suppression motion would have affected the outcome of the

proceeding; (3) why the death of the officer would have called into

question the warrants he authored, why a successful challenge to

the warrants would have affected the outcome of the proceeding, or

why the officer’s testimony was so unique that the loss of the

testimony would have affected a trial of the charges against Richter;

(4) how Richter had been inadequately advised of the plea

agreement before pleading guilty; (5) why it would have been

rational for him to reject a plea offer for a stipulated six-year prison

sentence and proceed to trial on multiple felony counts to maintain

his postconviction right to apply for a sentence reconsideration; and

(6) why a favorable expert opinion on the cause of the victim’s

injuries would have undermined the strength of the prosecution’s

case.

¶ 39 We agree with the postconviction court that Richter did not

present sufficient arguments that, if meritorious, would establish a

reasonable probability that, but for plea counsel’s deficient

performance, Richter would have rejected the plea offer and

proceeded to trial and that a decision to do so would have been

18
rational. See Romero, ¶ 53, 411 P.3d at 906; see also People v.

Corson, 2016 CO 33, ¶¶ 35, 42-43, 379 P.3d 288, 295, 297 (holding

that, “[i]n assessing whether a defendant would elect to plead guilty

or go to trial, we have considered the comparative sentencing

exposure between a proffered plea bargain and conviction after

trial,” and concluding that the defendant did not show a reasonable

probability that he would have rejected the plea offer and proceeded

to trial because the plea agreement provided substantial benefits to

him and he “faced a daunting downside risk at trial”); People v.

Sifuentes, 2017 COA 48M, ¶ 21, 410 P.3d 730, 736 (“Various

factors should inform a court’s analysis of whether a decision to

reject the guilty plea would have been rational,” including “the

attractiveness of the plea deal and the risks of going to trial.”).

¶ 40 Richter’s bald assertion of prejudice resulting from counsel’s

deficient performance is insufficient. See People v. Villanueva, 2016

COA 70, ¶ 68, 374 P.3d 535, 549 (A “conclusory allegation is

insufficient to establish prejudice under Strickland.”); see also

People v. Delgado, 2019 COA 55, ¶ 8, 442 P.3d 1021, 1024 (“[A]

court may deny [a Crim. P. 35(c)] motion without a hearing . . . if

the claims are bare and conclusory in nature and lack supporting

19
factual allegations.”); People v. Venzor, 121 P.3d 260, 262 (Colo.

App. 2005) (same). Further, we decline to address Richter’s

argument — asserted for the first time on appeal — that plea

counsel’s representation was deficient because plea counsel failed

to investigate his assertion that the victim carved her initials into

his chest. See People v. Goldman, 923 P.2d 374, 375 (Colo. App.

1996) (holding that allegations not raised in a Crim. P. 35(c) motion

and thus not ruled on by the postconviction court are not properly

before the Court of Appeals).

¶ 41 We note that the postconviction court did not address

Richter’s assertion that plea counsel was ineffective by failing to

investigate his theory that he had been unknowingly drugged before

the incident. But Richter failed to allege facts that, if true, would

establish what such an investigation would have revealed and why

the result of such an investigation would have altered the outcome

of the proceeding. See People v. Hartkemeyer, 843 P.2d 92, 92

(Colo. App. 1992) (holding that a trial court’s failure to make

findings of fact or conclusions of law in denying a Crim. P. 35(c)

motion does not require reversal if the error was harmless); see also

People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (rejecting the

20
defendant’s claim that counsel was ineffective for conducting an

inadequate investigation because he 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”).

¶ 42 Finally, Richter argues that the postconviction court “erred by

analyzing each allegation separately” because “[t]he allegations,

seen as a whole, indicate that plea counsel’s representation was

entirely inadequate and therefore in violation of [his] constitutional

right to competent counsel.” But he presents no argument or

authority to support the proposition that the court should have

evaluated his claims collectively. See Romero, ¶ 53, 411 P.3d at

906. Indeed, Richter did not assert a cumulative error claim in the

motion. See Goldman, 923 P.2d at 375; see also People v. Smith,

2024 CO 3, ¶¶ 7-8, 19, 541 P.3d 1191, 1194-95.

IV. Disposition

¶ 43 The order is affirmed.

JUDGE JOHNSON and JUDGE MOULTIE concur.

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