Peo v. Allen

24CA0116 Peo v Allen 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0116
El Paso County District Court No. 18CR2951
Honorable Samuel A. Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marty Cornell Allen,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE BROWN
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Marty Cornell Allen, Pro Se
¶1 Defendant, Marty Cornell Allen, appeals the postconviction

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

We affirm.

I. Background

¶2 Allen entered Brian Aguiluz’s hotel room wearing a stocking

mask and gloves and pointing a gun. Aguiluz was next to the door

when Allen entered. A division of this court described the ensuing

events as follows:

Aguiluz grabbed Allen and the two struggled
over the gun, though Allen maintained
possession of it. During the struggle, the gun
was fired three times. After the gun was fired,
the clip fell out of the gun and Aguiluz hit
Allen with it. Allen then beat Aguiluz with the
butt of the gun, causing a deep laceration.

People v. Allen, slip op. at ¶ 3 (Colo. App. No. 19CA1628, Mar. 31,

2022) (not published pursuant to C.A.R. 35(e)) (Allen I). Based on

this evidence, a jury found Allen guilty of attempted second degree

murder, second degree assault, and menacing.

¶3 On direct appeal, as relevant here, Allen contended that (1) the

evidence was insufficient to establish his conviction for attempted

second degree murder, and (2) the trial court erred by instructing

the jury on the provocation exception to self-defense. Id. at ¶¶ 5, 9.

1
A division of this court affirmed Allen’s convictions. It concluded

that there was sufficient evidence to show that Allen knowingly took

a substantial step toward causing Aguiluz’s death and declined to

address the alleged instructional error under the invited error

doctrine because Allen’s counsel had submitted the proposed

instruction. Id. at ¶¶ 8-11.

¶4 Allen filed a pro se Crim. P. 35(a) motion arguing, in relevant

part, that his conviction and sentence for felony menacing should

be vacated because the jury found him guilty of only misdemeanor

menacing. The People conceded the error, and the postconviction

court vacated Allen’s felony menacing conviction and entered a

conviction and sentence for misdemeanor menacing.

¶5 Later, Allen timely filed the pro se Crim. P. 35(c) motion at

issue in this appeal, asserting several claims of ineffective

assistance of counsel. The postconviction court denied the motion

in a written order, without asking for a response from the

prosecution and without holding a hearing.

II. Discussion

¶6 Allen contends that trial counsel provided ineffective

assistance (1) at his preliminary hearing; (2) by inviting or failing to

2
object to instructional deficiencies; and (3) by permitting his

erroneous conviction and sentence for felony menacing. We agree

with the postconviction court that these claims do not merit a

hearing.

A. Standard of Review and Applicable Law

¶7 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. People v. Marquez, 2020 COA 170M, ¶ 17. A

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

the motion, files, and record of the case clearly show that the

defendant is not entitled to relief. Crim. P. 35(c)(3)(IV).

¶8 To adequately allege a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984), a defendant

must (1) “identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment”

(the deficient performance prong), id. at 690; and (2) “assert facts

that, if true, show a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different” (the prejudice prong), People v. Timoshchuk, 2018 COA

153, ¶ 22. When a defendant alleges sufficient facts that, if true,

may warrant relief, the postconviction court must hold an

3
evidentiary hearing. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7.

However, the court may deny an ineffective assistance claim

without conducting a hearing when the supporting allegations are

bare and conclusory; fail to establish either prong of the Strickland

test, even if taken as true; or are directly refuted by the record.

People v. Duran, 2015 COA 141, ¶ 9; see Crim. P. 35(c)(3)(IV); see

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

B. Preliminary Hearing

¶9 The prosecution initially charged Allen with attempted first

degree murder, second degree assault, and menacing. At the

preliminary hearing, the trial court found that the prosecution had

not established probable cause for attempted first degree murder

and offered to consider an amended charge of attempted second

degree murder. The prosecution orally moved to amend the charge,

the court granted the motion, and the court found probable cause

for attempted second degree murder.

¶ 10 Allen claims that his counsel provided ineffective assistance

because (1) Allen did not receive a preliminary hearing on the

attempted second degree murder charge, and (2) counsel failed to

object when the trial court “acted as a lawyer” by offering to

4
consider the amended charge. We conclude that the record refutes

the first claim and that no relief is available as to either claim.

¶ 11 First, the record demonstrates that the district court held a

preliminary hearing, at which it found that the prosecution had

established probable cause with respect to the amended charge of

attempted second degree murder. A jury then found Allen guilty of

attempted second degree murder beyond a reasonable doubt,

rendering moot any possible error in the findings at the preliminary

hearing and eliminating any prejudice from counsel’s allegedly

deficient performance. Cf. People v. Morse, 2023 COA 27, ¶ 68.

¶ 12 Second, Allen failed to sufficiently allege prejudice for either

claim under Strickland. Rather, in bare and conclusory fashion,

and without any supporting facts, he baldly alleged that his rights

to due process and a fair trial were violated. See Duran, ¶ 9; People

v. Delgado, 2019 COA 55, ¶ 8 (in such circumstances, a court may

deny a Crim. P. 35(c) motion without a hearing).

¶ 13 For these reasons, we conclude that the postconviction court

properly denied this claim without a hearing under Crim. P.

35(c)(3)(IV).

5
C. Jury Instructions

¶ 14 Allen also claims that his counsel provided ineffective

assistance by inviting an erroneous provocation self-defense

instruction, failing to object to an elemental second degree murder

instruction, and failing to object to a definitional instruction on

serious bodily injury. We agree with the postconviction court that

these claims do not merit a hearing. See People v. Cooper, 2023

COA 113, ¶ 7 (we may affirm a postconviction court’s ruling on any

ground supported by the record).

1. Self-Defense Instruction

¶ 15 Allen first claims that his trial counsel provided ineffective

assistance by submitting a self-defense jury instruction that

included a provocation exception. See § 18-1-704(3)(a), C.R.S. 2024

(A person is not justified in using physical force in self-defense if,

“[w]ith intent to cause bodily injury or death to another person, he

provokes the use of unlawful physical force by that other person.”);

COLJI-Crim. H:11 (2024); see also Allen I, ¶¶ 9-12. For Strickland’s

deficient performance prong, Allen asserts that there was no

evidence of provocation at his trial, so it was ineffective to allow an

instruction on provocation. For the prejudice prong, Allen alleges

6
that the appellate court determined that his counsel had invited

any error in the instruction and that his rights to due process and a

fair trial were violated.

¶ 16 But Allen does not allege any facts showing a reasonable

probability that the result of the proceeding would have been

different if the jury had not been instructed on provocation.1 Thus,

even assuming, without deciding, that his trial counsel’s

performance was deficient, Allen’s bare and conclusory allegation

that his constitutional rights were violated does not sufficiently

allege Strickland prejudice to warrant a hearing. See Dunlap, ¶ 9;

Delgado, ¶ 8. Accordingly, we conclude that the postconviction

court properly denied this claim under Crim. P. 35(c)(3)(IV).

1 Allen correctly notes that the division in his direct appeal declined

to consider his claim that the trial court erred by giving the
instruction under the invited error doctrine. People v. Allen, slip op.
at ¶ 9 (Colo. App. No. 19CA1628, Mar. 31, 2022) (not published
pursuant to C.A.R. 35(e)). But the division’s decision not to review
the claimed error does not mean there was, in fact, an error or that
any error caused harm. To establish this claim of ineffective
assistance of counsel, Allen must still allege a reasonable
probability that the result of the proceeding would have been
different but for counsel’s decision to submit the instruction. He
failed to do so.

7
2. Elemental Second Degree Murder Instruction

¶ 17 Next, Allen claims that his counsel provided ineffective

assistance by failing to object to an elemental jury instruction on

second degree murder. See § 18-3-103(1)(a), C.R.S. 2024 (A person

commits second degree murder if the person “knowingly causes the

death of a person.”). He alleges that counsel’s failure to object was

unreasonable because Allen was not accused of causing a death,

and the instruction prejudiced him because it violated his rights to

due process and a fair trial.

¶ 18 This ineffective assistance claim fails because Allen does not

allege facts establishing either prong of the Strickland test. It is

true that Allen was not charged with causing a death, but it was

proper for his jury to be instructed on second degree murder

because he was charged with an attempt to commit that crime. See

COLJI-Crim. G2:01 cmt. 3 (When a defendant is charged with

attempt to commit an offense, “an elemental instruction defining

the attempted crime should immediately follow the instruction

defining an attempt.”). Because counsel does not perform

deficiently by failing to object to a correct instruction, and because

Allen’s bald assertion that his constitutional rights were violated

8
does not adequately allege prejudice under Strickland, this claim too

was properly denied under Crim. P. 35(c)(3)(IV).

3. Definition of Serious Bodily Injury

¶ 19 Allen also claims that his counsel provided ineffective

assistance by failing to object to an instruction containing the

definition of “serious bodily injury” (along with definitions of “bodily

injury,” “deadly weapon,” “firearm,” and “person”). Allen alleges

that this instruction was defective because the evidence at trial did

not establish that Aguiluz suffered serious bodily injury and that he

was deprived of a fair trial as a result of his counsel’s failure to

object.

¶ 20 This claim also fails to establish either Strickland prong, for

similar reasons. When a defendant is charged with menacing, the

jury should receive an instruction defining “serious bodily injury”

because it is an element of the offense. People v. Fichtner, 869 P.2d

539, 543 (Colo. 1994); see § 18-3-206, C.R.S. 2024 (“A person

commits the crime of menacing if . . . he or she knowingly places or

attempts to place another person in fear of imminent serious bodily

injury.”) (emphasis added). Because the motion, files, and record of

the case clearly show that Allen is not entitled to relief, and again

9
because Allen’s bald assertion that his constitutional rights were

violated does not adequately allege prejudice under Strickland, we

conclude that the postconviction court properly denied this claim

under Crim. P. 35(c)(3)(IV).

D. Felony Menacing Conviction

¶ 21 Lastly, Allen claims that his trial counsel provided ineffective

assistance by not objecting when the district court entered a

judgment of conviction on felony menacing even though the jury

was not instructed to consider whether he used a firearm. See

§ 18-3-206 (Unless committed by the use of a real or simulated

firearm, knife, or bludgeon, “[m]enacing is a class 1 misdemeanor.”).

We conclude that the postconviction court properly denied this

claim without a hearing because the underlying issue was raised

and resolved in a prior postconviction proceeding, as described in

Part I. See Crim. P. 35(c)(3)(VI). The issue was resolved in Allen’s

favor, and no further relief is available.

III. Final Considerations

¶ 22 We have broadly construed Allen’s pro se Crim. P. 35(c) motion

“to effectuate the substance, rather than the form” of his claims.

People v. Cali, 2020 CO 20, ¶ 34. Nonetheless, we have not

10
considered any allegations in the Allen’s brief that were not

presented to the postconviction court in his motion. See id. And we

have not addressed any claims Allen raised in his motion but did

not discuss on appeal. See Delgado, ¶ 9 n.3. Specifically, to the

extent Allen claimed trial error or ineffective assistance in his

motion based on Aguiluz’s grant of use immunity, prosecutorial

misconduct in closing argument, or a failure to timely disclose his

affirmative defense of self-defense, we deem those claims

abandoned because he did not raise them on appeal. Id.

¶ 23 Finally, to the extent Allen’s motion and appeal directly

challenge his convictions based on judicial misconduct, insufficient

evidence, or instructional error at trial, we will not address those

claims because they were either raised and resolved or could have

been presented on direct appeal. See Crim. P. 35(c)(3)(VI), (VII)

(barring successive claims); see also Allen I, ¶¶ 5-8 (addressing

sufficiency of the evidence for attempted murder).

IV. Disposition

¶ 24 The order is affirmed.

JUDGE J. JONES and JUDGE YUN concur.

11