Peo v. Veater

24CA0380 Peo v Veater 02-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0380
Arapahoe County District Court No. 20CR1034
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Scott Howard Veater,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 27, 2025

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

Scott Howard Veater, Pro Se
¶1 Defendant, Scott Howard Veater, appeals the district court’s

order denying his Crim. P. 35(c) motion for postconviction relief.

We affirm.

I. Background

¶2 The State charged Veater with sexual assault on a child and

two counts of sexual assault on a child committed as part of a

pattern of abuse. The complaint listed two victims. Veater pleaded

guilty to an added count of sexual exploitation of a child in

exchange for the dismissal of the original charges and a stipulated

sentence of ten years on sex offender intensive supervision

probation (SOISP) with ninety days in jail as a condition of

probation. As part of the plea agreement, Veater waived his right to

a direct appeal and to any reconsideration of his sentence. The

district court accepted Veater’s guilty plea and imposed the

stipulated sentence.

¶3 Approximately two years later, Veater’s probation officer filed a

complaint to revoke his SOISP, alleging that he violated its

conditions. After a hearing on the complaint, the district court

found that Veater had violated the conditions of SOISP, revoked the

probation sentence, and resentenced him to ten years in the

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custody of the Department of Corrections. The court denied

Veater’s Crim. P. 35(b) motion for a reduction of sentence.

¶4 Veater then filed a timely pro se Crim. P. 35(c) motion and

requested the appointment of counsel. The postconviction court

denied the motion without a hearing and without appointing

counsel. This appeal followed.

II. Standard of Review

¶5 We review a district court’s denial of a Crim. P. 35(c) motion

without a hearing de novo. People v. Cali, 2020 CO 20, ¶ 14.

Defendants need not set forth evidentiary support for their

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 Crim. P. 35(c) motion

may be denied 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 v.

People, 69 P.3d 73, 77 (Colo. 2003).

III. Request to File an Untimely Supplemental Motion

¶6 A Crim. P. 35(c) motion must be filed within three years of a

defendant’s conviction for an offense other than a class 1 felony.

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§ 16-5-402(1), C.R.S. 2024; Crim. P. 35(c)(3)(I). “For purposes of

[section] 16-5-402 and postconviction review, if there is no direct

appeal, a conviction occurs when the trial court enters judgment

and sentence is imposed.” People v. Collier, 151 P.3d 668, 671

(Colo. App. 2006). But, as relevant here, a postconviction claim

shall be excluded from the time limitation period where a court

finds that the “failure to seek relief within the applicable time period

was the result of circumstances amounting to justifiable excuse or

excusable neglect.” § 16-5-402(2)(d).

¶7 In his Crim. P. 35(c) motion, Veater indicated that he wanted

to submit a supplemental motion with additional claims and

arguments and asked the postconviction court to make a finding

that justifiable excuse or excusable neglect existed to excuse his

future filing of this supplemental motion after the expiration of

section 16-5-402(1)’s three-year deadline. The court found that

Veater’s Crim. P. 35(c) motion was timely filed but that he did not

allege sufficient facts to establish justifiable excuse or excusable

neglect to permit the untimely filing of a supplemental motion.

Veater appeals this latter finding.

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¶8 Veater does not provide, nor have we found, any authority that

allows a postconviction court to make a preemptive justifiable

excuse or excusable neglect finding to excuse a yet-to-be-filed Crim.

P. 35(c) motion. See People v. Ambos, 51 P.3d 1070, 1071-72 (Colo.

App. 2002) (“[T]he timely commencement of a collateral attack fails

to toll the limitations period with respect to additional

postconviction claims not contained in the timely filed motion.”); see

also Bd. of Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union

Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005) (“Ripeness tests

whether the issue is real, immediate, and fit for adjudication.

Courts should refuse to consider uncertain or contingent future

matters that suppose speculative injury that may never occur.”)

(citation omitted); People v. Vigil, 2023 COA 12, ¶ 15. Instead, the

rules of criminal procedure require defendants to file their untimely

motion and allege an exception to section 16-5-402(1)’s three-year

deadline. See Crim. P. 35(c)(3)(I) (“Any motion filed outside of the

time limits set forth in [section] 16-5-402 . . . shall allege facts

which, if true, would establish one of the exceptions listed in

[section] 16-5-402(2) . . . .”).

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¶9 Further, the Colorado Supreme Court held that, in

determining whether a defendant established justifiable excuse or

excusable neglect, “it [is] appropriate to consider the circumstances

existing throughout the entire period from the inception of the

conviction in question.” People v. Wiedemer, 852 P.2d 424, 441

(Colo. 1993). A finding of justifiable excuse or excusable neglect

regarding a yet-to-be-filed postconviction motion could not be based

on a consideration of all circumstances existing throughout the

entire period.

¶ 10 Therefore, we conclude that the postconviction court did not

err by denying Veater’s request for a justifiable excuse or excusable

neglect finding. See People v. Hamm, 2019 COA 90, ¶ 23 (“[W]e will

affirm a district court’s denial of a Rule 35 motion on any ground

supported by the record, even if the district court did not consider

or contemplate that ground.”).

IV. Ineffective Assistance of Plea Counsel

¶ 11 In his motion, Veater asserted that plea counsel was

ineffective for failing to (1) adequately advise him of the

consequences of pleading guilty, (2) obtain an evaluation to

determine whether he was competent to enter a valid guilty plea, (3)

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investigate the impact his mental health issues had on his ability to

understand the consequences of pleading guilty, and (4) adequately

investigate his defense. He also argued that plea counsel was

ineffective for failing to obtain a sentencing mitigation packet and to

perfect a direct appeal of his sentence or apply for sentence

reconsideration. In a thorough written order, the postconviction

court denied these claims, finding that the record undermined

Veater’s assertions or that his allegations, if true, were insufficient

to establish ineffective assistance of counsel.

¶ 12 We conclude that the postconviction court did not err by

denying these claims without a hearing. See Crim. P. 35(c)(3)(IV);

People v. Delgado, 2019 COA 55, ¶ 8 (A court may deny a Crim. P.

35(c) motion without a hearing “if the motion, files, and record

clearly establish that the defendant is not entitled to relief; if the

allegations, even if true, don’t provide a basis for relief; or if the

claims are bare and conclusory in nature and lack supporting

factual allegations.”).

A. Standard of Review

¶ 13

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¶ 14 Criminal defendants are constitutionally entitled to effective

assistance from their counsel. Ardolino, 69 P.3d at 76. This right

to the effective assistance of counsel extends to 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.

¶ 15 “In order 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 one of these two prongs defeats an ineffective assistance

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

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

the Strickland test to ineffective assistance of counsel claims in

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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.

¶ 17 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,

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

to undermine confidence in the outcome.” Id.

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

defendant must establish a reasonable probability that but for

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

have insisted on going to trial.” People v. Vicente-Sontay, 2014 COA

175, ¶ 20. Further, the defendant “must convince the court that a

decision to reject the plea bargain would have been rational under

the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010);

see also People v. Finney, 2012 COA 38, ¶ 71, aff’d, 2014 CO 38.

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¶ 19 “The 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, aff’d,

2019 CO 59.

B. Investigation of Competency

¶ 20 Based on the record before us, we conclude that Veater’s

assertions regarding plea counsel’s advisement and investigation

into his competency and mental health, if true, did not warrant a

hearing.

¶ 21 Although the transcript of the providency hearing is not in the

record before us (see Part V below), the plea documents

demonstrate that plea counsel advised Veater of, and that Veater

understood, the offense to which he was pleading guilty, the

sentencing consequences of pleading guilty, and the rights he was

waiving by pleading guilty. Plea counsel represented that he had

discussed these matters with Veater, and Veater acknowledged his

satisfaction with counsel’s advice. Ultimately, the providency court

found that Veater understood these advisements.

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¶ 22 The plea documents also reflect Veater’s confirmation that

(1) “[his] mental and physical health [were] satisfactory, and [he

was] able to understand what [wa]s happening in these proceedings

so that [he could] make important decisions on [his] own behalf”; (2)

he was “completely alert, thinking clearly, and . . . able to exercise

sound judgment”; (3) he “underst[oo]d the court proceedings clearly

and [was] not suffering . . . from any mental health issues or from

the effects of any drugs, alcohol or medications which would affect

[his] decision to plead guilty”; and (4) his decision to plead guilty

was “made knowingly, freely, voluntarily, and intelligently.”

Counsel agreed that Veater “[wa]s competent to proceed and that

the plea [wa]s being tendered by [him] freely, knowingly, and

voluntarily.” Ultimately, the providency court found that Veater

was competent to proceed.

¶ 23 Further, a pre-plea offense-specific evaluation and the

presentence investigation report identified Veater’s mental health

issues but observed that he did not exhibit any deficiencies in his

thinking or comprehension. Cognitive impairment testing revealed

that Veater was within normal limits. And these documents, as

well as the sentencing hearing transcript, contain statements from

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Veater regarding the incident and the criminal proceeding that

reflect his understanding of the legal proceedings. He has not cited,

nor are we aware of, any legal authority equating mental illness

with the legal standard for legal competence.

¶ 24 Accordingly, we conclude that Veater’s allegations of plea

counsel’s deficiencies are belied by this record and that the

allegations, if true, do not establish that counsel’s performance fell

below an objective standard of reasonableness. See People v.

Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011) (“To prevail on a

claim of ineffective assistance of counsel, a defendant must show

that, in light of all the circumstances, the identified acts or

omissions of counsel were outside the wide range of professionally

competent assistance.”), aff’d, 2015 CO 37.

C. Inadequate Investigation

¶ 25 To the extent Veater alleges that plea counsel failed to

adequately investigate his case, he does not specify what counsel

should have done except to request a competency examination. For

the reasons described above, nothing in the record suggests that

Veater was legally incompetent or that counsel had any basis to

request such an exam. Thus, without more, Veater’s allegation

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alone is insufficient to establish deficient performance. See People

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

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”); see also People v. Villanueva, 2016 COA

70, ¶¶ 67-68 (A defendant “must do more than simply allege that

other evidence could have aided [their] defense; [they] must identify

the evidence and demonstrate that it would have advanced [their]

defense.”).

D. Sentencing Mitigation

¶ 26 Veater next contends that plea counsel’s representation during

sentencing was deficient because he failed to present an

independent Veterans Affairs Mitigation Packet (VAMP). Accepting

this allegation as true, we conclude that it does not establish that

Veater is entitled to relief. Veater did not identify what impact a

sentencing mitigation packet would have had since his plea

agreement called for a stipulated ten-year SOISP sentence.

Moreover, the plea agreement paperwork shows that Veater waived

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his right to seek a sentence reconsideration, so the VAMP could not

have assisted him in that regard. Finally, to the extent Veater

asserts it would have assisted in a direct appeal of his sentence, the

record shows that Veater waived his right to appeal his sentence

both in the paperwork and by agreeing to a stipulated sentence.

See § 18-1-409(1), C.R.S. 2024 (“[I]f the sentence is within a range

agreed upon by the parties pursuant to a plea agreement, the

defendant shall not have the right of appellate review of the

propriety of the sentence.”).

E. Remaining Claim

¶ 27 Veater asserts in his opening brief that plea counsel was

deficient in not hiring an expert witness. But a review of the record

shows that he did not make this specific allegation in his Crim. P.

35(c) motion, so we do not consider it for the first time here. See

People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996); see also

People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996) (rejecting the

defendant’s “attempts to use his brief on . . . appeal to fortify a

number of issues inadequately raised or supported by his

[postconviction] motion”).

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F. No Prejudice

¶ 28 Finally, even assuming, without deciding, that plea counsel’s

performance was deficient, we conclude that Veater did not assert

facts that, if true, would establish a reasonable probability that he

would have rejected the plea offer and proceeded to trial.

¶ 29 If he had proceeded to trial, Veater would have faced three sex

offense charges under the Colorado Sex Offender Lifetime

Supervision Act of 1998. See § 18-1.3-1003(5)(a)(IV), C.R.S. 2024.

If convicted of these offenses against two victims, Veater would have

been subject to a consecutive, indeterminate prison sentence. See

§ 18-1.3-1003(4); § 18-1.3-1004(1)(a), C.R.S. 2024; see also § 18-1-

408(3), C.R.S. 2024 (“[W]here multiple victims are involved, the

court may, within its discretion, impose consecutive sentences.”);

Juhl v. People, 172 P.3d 896, 899 (Colo. 2007) (generally, a trial

court has the discretion to impose either concurrent or consecutive

sentences when a defendant is convicted of multiple offenses).

¶ 30 Instead, Veater’s acceptance of the plea agreement resulted in

the dismissal of the original sex offense charges, a conviction of one

felony sex offense that is not subject to indeterminate sentencing,

and a stipulated determinate sentence to probation. Indeed, the

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presentence investigation report noted that Veater referred to the

sentencing stipulation as “the best outcome [he] could have hoped

for.”

¶ 31 Thus, Veater did not allege facts that, if true, would

demonstrate that, but for plea counsel’s allegedly deficient

performance, it would have been rational for him to reject the plea

offer and proceed to trial. See People v. Corson, 2016 CO 33, ¶ 42

(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 (“Various factors should inform a court’s analysis of

whether a decision to reject the guilty plea would have been

rational,” including “the strength of the prosecution’s case” and “the

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

V. District Court Plea Advisement

¶ 32 In his motion, Veater also argued that the providency court

failed to sufficiently advise him before accepting his guilty plea. The

postconviction court found that the record undermined this claim.

We agree.

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¶ 33 “Given the important rights at stake, to be constitutionally

valid, a defendant must enter [a] guilty plea knowingly, voluntarily,

and intelligently.” Sanchez-Martinez v. People, 250 P.3d 1248, 1255

(Colo. 2011). “To ensure the constitutionality of guilty pleas, Crim.

P. 11(b) outlines various determinations the court must make

before accepting a guilty plea.” Id. at 1254.

¶ 34 Initially, we are unable to review the transcript of the

providency hearing because it was not included in the appellate

record. See People v. Duran, 2015 COA 141, ¶ 12 (“It is the

appellant’s responsibility to designate the record on appeal,

including those parts of the trial proceedings that are necessary for

purposes of the appeal . . . .”). In the absence of the transcript, we

presume that it supports the postconviction court’s finding that

Veater received a sufficient plea advisement at the providency

hearing. Id.

¶ 35 And, even accepting as true Veater’s assertion that he received

a deficient plea advisement, he failed to demonstrate that the error

was not harmless. Dawson v. People, 30 P.3d 213, 216-17 (Colo.

2001) (affirming the denial of the defendant’s Crim. P. 35(c) motion

to withdraw his guilty plea because the defendant “suffered no

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prejudice from the inadequate Crim. P. 11 advisements”). Indeed,

the plea documents containing Veater’s initials and signature

verifying that he understood the terms of the plea agreement and

was knowingly and voluntarily entering his guilty plea demonstrate

that he received a proper advisement before pleading guilty.

VI. Appointment of Counsel

¶ 36 Lastly, because Veater did not assert a claim that has

arguable merit, we conclude that the postconviction court did not

err by denying his request for the appointment of counsel. See

People v. Segura, 2024 CO 70, ¶¶ 7, 25.

VII. Disposition

¶ 37 The order is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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