Peo v. Douhaj

22CA0466 Peo v Douhaj 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0466
City and County of Denver District Court No. 12CR3676
Honorable David H. Goldberg, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mohammed Douhaj,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Tow and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 17, 2025

Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Mohammed Douhaj, appeals the postconviction

court’s denial of his Crim. P. 35(c) motion after an evidentiary

hearing. We affirm.

I. Background

¶2 Late one summer evening, Douhaj picked up the victim at a

bus stop and drove her home in his taxi. The victim and Douhaj

had different accounts of what happened when they arrived at her

home. The victim testified that when the taxi stopped outside her

home, she reached for the door. She then heard a “locking noise,”

and Douhaj climbed into the backseat and forced her to perform

oral sex. By contrast, Douhaj testified that the sexual encounter

was consensual.

¶3 The jury rejected the defense and convicted Douhaj of sexual

assault by overcoming the victim’s will. For this, Douhaj received

an indeterminate prison sentence of six years to life, followed by an

indeterminate parole term.

¶4 Douhaj directly appealed his conviction, contending that the

trial court erred by precluding him from testifying about statements

that he claimed the victim made to him before and during the

sexual act. A division of this court agreed that the trial court erred

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by excluding the statements. But it concluded that the error wasn’t

reversible under either a harmless or plain error standard of review

because the excluded evidence was cumulative. People v. Douhaj,

(Colo. App. No. 13CA2020, Oct. 13, 2016) (not published pursuant

to C.A.R. 35(e)) (Douhaj I).

¶5 Douhaj next asked the postconviction court to reconsider his

sentence under Crim. P. 35(b). The court granted the request and

resentenced Douhaj to an indeterminate ten-year term of sex

offender intensive supervised probation (SOISP).

¶6 Douhaj then filed a motion for postconviction relief under Rule

35(c). In it, he alleged that his trial counsel had failed to (1) advise

him about a determinate plea offer as well as the potential

consequences of indeterminate sentencing; and (2) constitutionalize

the objection to the exclusion of the victim’s statements, which

resulted in plain error review of his constitutional contentions in his

direct appeal.

¶7 The postconviction court held an evidentiary hearing on the

motion. Four witnesses testified. But the court didn’t hear from

Douhaj’s trial counsel who had died years earlier.

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¶8 In a thorough written order, the postconviction court denied

the motion, concluding that Douhaj had failed to establish deficient

performance as to the first ineffective assistance claim and

prejudice as to the second one.

II. Ineffective Assistance of Counsel

¶9 Douhaj contends the postconviction court erred by denying his

two claims of ineffective assistance of counsel.

A. Legal Principles and Standard of Review

¶ 10 A criminal defendant has a constitutional right to effective

assistance of counsel. People v. Rainey, 2023 CO 14, ¶ 1. To

prevail on an ineffective assistance of counsel claim, a defendant

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

meaning it fell below an objective standard of reasonableness; and

(2) counsel’s deficient performance prejudiced the defense, meaning

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

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

Washington, 466 U.S. 668, 687-88, 694 (1984). If a court

determines that a defendant has failed to prove either Strickland

prong, it may deny an ineffective assistance claim without

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addressing the other prong. Id. at 697; People v. Villanueva, 2016

COA 70, ¶ 66.

¶ 11 We review the denial of a Rule 35(c) motion after a hearing as

a mixed question of fact and law. People v. Corson, 2016 CO 33,

¶ 25. That means we defer to the postconviction court’s factual

findings if they are supported by the record but review the court’s

legal conclusions de novo. Dunlap v. People, 173 P.3d 1054, 1063

(Colo. 2007). “Where the evidence in the record supports the

findings and holding of the postconviction court that presided over

an evidentiary hearing, the judgment will not be disturbed on

review.” People v. Wardell, 2020 COA 47, ¶ 27.

B. Plea Offer and Sentencing Exposure

¶ 12 Douhaj contends that the postconviction court erred by

denying his claim that his trial counsel was ineffective by failing to

adequately convey and explain the prosecution’s plea offer and,

particularly, the possibility of an indeterminate sentence should he

be convicted at trial.

¶ 13 A defendant’s right to effective assistance of counsel extends to

the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162

(2012). To show deficient performance in the context of a rejected

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plea offer, the defendant must demonstrate that counsel failed to

properly advise him about the plea offer and his sentencing

exposure at trial. People v. Delgado, 2019 COA 55, ¶ 17. To show

prejudice in this context, the defendant must show a reasonable

probability that, but for counsel’s deficient advice, the defendant

would have accepted the offer, foregoing his right to trial.

Carmichael v. People, 206 P.3d 800, 807 (Colo. 2009), overruled on

other grounds as recognized by Delgado, 2019 COA 55; Delgado,

¶ 21. The defendant must also demonstrate a reasonable

probability that “the prosecution would not have withdrawn it in

light of intervening circumstances[], that the court would have

accepted its terms, and that the conviction or sentence, or both,

under the offer’s terms would have been less severe than under the

judgment and sentence that in fact were imposed.” Lafler, 566 U.S.

at 164; Missouri v. Frye, 566 U.S. 134, 148 (2012); Delgado, ¶ 21.

¶ 14 To the extent Douhaj says that his trial counsel failed to

convey the plea offer to him, the evidence refutes that claim.

Douhaj and his son testified at the Rule 35(c) hearing that trial

counsel communicated that the prosecutor had offered “a deal with

a long prison term.” And the prosecutor testified to the terms of

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that offer which required Douhaj to plead guilty to second degree

assault and attempted sexual assault with a mandatory five to

sixteen year prison sentence prison followed by a ten-year term of

SOISP. The plea offer was therefore conveyed to Douhaj.

¶ 15 That leaves Douhaj’s claim that his trial counsel didn’t explain

the possibility of indeterminate sentencing should Douhaj lose at

trial. Without that explanation, Douhaj says that he couldn’t make

a reasonably informed decision about whether to accept the plea

offer.

¶ 16 The postconviction court concluded that trial counsel had

adequately conveyed the plea offer to Douhaj and that his

performance was not deficient under Strickland. In reaching that

conclusion, the court weighed the credibility of the witnesses and

ultimately concluded that Douhaj chose to go to trial “not because

he did not understand sentencing outcomes, but because he

believed that he had a favorable opportunity to win at trial.”

¶ 17 Douhaj says the evidence didn’t support the court’s

performance finding. While we defer to the court’s credibility

determinations, Corson, ¶ 32, we acknowledge that no witness

expressly testified that trial counsel explained the possibility of an

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indeterminate sentence should Douhaj lose at trial. The court also

lacked the benefit of trial counsel’s testimony. But even if we

assume that these evidentiary gaps at the Rule 35 hearing support

a finding that trial counsel didn’t explain the possibility of an

indeterminate sentence, Douhaj failed to establish prejudice.

¶ 18 More specifically, Douhaj never clearly said that he would have

accepted the plea offer had his trial counsel explained the

possibility of indeterminate sentence should he lose at trial.

Indeed, Douhaj’s testimony on this point was inconsistent. To

illustrate, he testified that he “wouldn’t agree to take the plea offer if

[he] knew the sentence would be from 5 to 16 years.” But he also

testified that had his counsel fully informed him about the possible

indeterminate sentence, then he would have “considered” accepting

the plea offer. Even supposing Douhaj had testified that he would

have accepted the mandatory determinate prison sentence if

adequately advised, such evidence “in and of itself” is “insufficient

to establish prejudice.” Carmichael, 206 P.3d at 807. To establish

prejudice, Douhaj needed to present “some objective corroborating

evidence of the reasonable probability that [he] would have accepted

the plea offer if not for [his] deficient counsel.” Id.

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¶ 19 Recognizing that requirement, Douhaj argues that the

sentencing disparity alone is corroborating evidence that he would

have admitted guilt and accepted a mandatory five to sixteen year

prison sentence. The problem with that argument is that Douhaj

maintained that he was innocent. He claimed before and during

trial that the sexual encounter was consensual. And it was a close

case with no witnesses or forensic or physical evidence. Even the

trial prosecutor admitted the trial outcome “was a coin toss.” Given

the reasonable chance of an acquittal, there’s simply nothing in the

record to suggest that Douhaj would have abandoned his innocence

claim, admitted guilt before trial, and agreed to a lengthy

mandatory prison sentence. See Lafler, 566 U.S. at 171 (“[A] court

may take account of a defendant’s earlier expressed willingness, or

unwillingness, to accept responsibility for his . . . actions.”); see

also Delgado, ¶ 27.

¶ 20 Because Douhaj didn’t establish Strickland prejudice, the

postconviction court properly denied his first claim of ineffective

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assistance of counsel.1 See People v. Cooper, 2023 COA 113, ¶ 7

(“We may affirm the postconviction court’s ruling on any ground

supported by the record, whether or not the postconviction court

relied on or considered that ground.”).

C. Failure to Constitutionalize an Evidentiary Objection

¶ 21 In his direct appeal, Douhaj argued that the trial court erred

by precluding him from testifying about statements that he claims

the victim made to him that would have supported his consent

defense. Douhaj I, ¶¶ 1-2. He raised both a preserved evidentiary

claim and an unpreserved constitutional claim to the court’s ruling.

Id. at ¶¶ 13-16. Douhaj I concluded that the court shouldn’t have

excluded the testimony but that the evidence was cumulative. Id.

at ¶¶ 25-30. It therefore concluded that neither the preserved nor

unpreserved claims warranted reversal. Id.

¶ 22 In his Rule 35(c) motion, Douhaj alleged that his trial counsel

was ineffective for failing to constitutionalize the objection to the

1 Because we conclude that Douhaj didn’t show a reasonable

probability that, but for trial counsel’s deficient performance, he
would have accepted the plea offer, we needn’t consider whether
Douhaj demonstrated the other prejudice factors articulated in
People v. Delgado, 2019 COA 55, ¶ 21.

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trial court’s ruling excluding the victim’s statements and that, but

for that failure, there was a reasonable probability that Douhaj I

would have reversed his conviction under the constitutional

harmless error standard.

¶ 23 But we do not review evidentiary rulings for constitutional

harmless error unless the ruling “effectively barred the defendant

from meaningfully testing evidence central to establishing his guilt.”

Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009). That didn’t

happen here. Indeed, Douhaj “put his consent defense squarely

before the jury.” Douhaj I, ¶¶ 26, 30. More specifically, Douhaj

testified that

• the victim flagged him down at the bus stop;

• she started kissing him;

• she removed his penis from his pants;

• she began fellating him on her own initiative;

• she voluntarily performed the sex act;

• he did not force her to do so;

• he did not threaten her;

• she was “the one who guide[d] [him] . . . to do things that

she want[ed] [him] to do”;

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• when the sex act was over, he gave her money; and

• they exchanged phone numbers.

Id. at ¶ 26.

¶ 24 Because Douhaj thoroughly presented his consent defense to

the jury, even had trial counsel constitutionalized his evidentiary

objection, Douhaj I would have reviewed the contention for

nonconstitutional harmless error. See Hagos v. People, 2012 CO

63, ¶ 12. And because Douhaj I concluded that the evidentiary

error was harmless, there is no reasonable probability that the

outcome of the case would have been different had trial counsel

constitutionalized his evidentiary objection.

¶ 25 Finally, because he didn’t sufficiently develop it in his Rule

35(c) motion or at the evidentiary hearing, we will not consider

Douhaj’s contention that trial counsel was ineffective for failing to

impeach the victim with her purported prior inconsistent

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

2 While Douhaj’s Crim. P. 35(c) motion has a heading referencing

trial counsel’s failure “to properly impeach” the victim, the motion
contains no prior inconsistent statement arguments. This issue
wasn’t developed in the Rule 35(c) motion or reply, addressed at the
evidentiary hearing, or mentioned in Douhaj’s post-hearing brief.

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1996) (“Allegations not raised in a Crim. P. 35(c) motion or during

the hearing on that motion and thus not ruled on by the trial court

are not properly before this court for review.”); accord People v.

Stovall, 2012 COA 7M, ¶ 3. And to the extent Douhaj raises new

evidentiary contentions in his reply brief, we don’t consider those

either. See People v. Vanderpauye, 2021 COA 121, ¶ 69 n.10, aff’d

2023 CO 42.

III. Disposition

¶ 26 The order is affirmed.

JUDGE TOW and JUDGE MEIRINK concur.

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