Peo v. Suarez

23CA1077 Peo v Suarez 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1077
Adams County District Court No. 19CR1077
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Israel L. Suarez,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE WELLING
Grove and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Israel L. Suarez, appeals the postconviction court’s

order denying his motion to vacate the trial court’s order requiring

him to pay the costs of prosecution. We affirm.

I. Background

A. The Proceedings Through the Direct Appeal

¶2 According to the arrest affidavit, Suarez and other jail inmates

assaulted the victim. The prosecution charged Suarez with second

degree assault pursuant to section 18-3-203(1)(g), C.R.S. 2024.

¶3 Although the trial transcripts are not part of the record on

appeal, other sources in the record indicate that (1) the victim did

not appear to testify, and (2) the prosecution called an expert in

emergency and trauma medicine, who testified that the victim

suffered serious bodily injury. The jury found Suarez guilty of the

lesser included offense of third degree assault for recklessly causing

bodily injury to the victim. See § 18-3-204(1)(a), C.R.S. 2024.

¶4 Before sentencing, the prosecution filed a motion for the costs

of prosecution along with a motion seeking restitution. The motion

for the costs of prosecution sought a total of $707.68, consisting of

$637.50 in costs paid to a medical expert who testified at trial,

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$17.68 in witness fees and mileage reimbursements, and $52.50 in

subpoena costs.

¶5 Following the sentencing hearing, the trial court issued an

order granting the prosecution’s motion for the costs of prosecution,

but deferred its ruling on the restitution motion to give Suarez an

opportunity to respond.

¶6 Suarez subsequently filed a direct appeal of the judgment of

conviction.

¶7 Suarez also objected to the motions for the costs of

prosecution and restitution. As to the costs of prosecution, Suarez

argued he couldn’t be required to pay the costs of proving the

second degree assault charge, which included the element of

serious bodily injury, because the jury had acquitted him on that

charge. Instead, he argued that he could only be required to pay

the costs of proving the third degree assault, which required

proving mere bodily injury (not serious bodily injury), and that the

medical expert wasn’t necessary to prove that offense.

¶8 The People responded, arguing, among other things, that

because the victim didn’t testify at trial, the medical expert was

necessary to prove that the victim suffered mere bodily injury.

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¶9 Following a hearing at which the prosecution didn’t present

additional evidence, the trial court reaffirmed its ruling ordering the

costs of prosecution; it also granted the restitution motion.

¶ 10 Suarez then amended his notice of appeal in the direct appeal

to include the trial court’s orders imposing the costs of prosecution

and restitution.

¶ 11 In the direct appeal, a division of this court affirmed the

judgment of conviction. See People v. Suarez, slip op. at ¶¶ 1, 7-44,

53 (Colo. App. No. 19CA1966, Nov. 4, 2021) (not published

pursuant to C.A.R. 35(e)). As to the restitution order, however, the

division reversed and remanded for a determination of what losses,

if any, were proximately caused by the third degree assault of which

Suarez was convicted. See id. at ¶¶ 1, 45-51, 53.

¶ 12 Further, and most significant for our purposes, the division

declined to address the costs-of-prosecution issue because Suarez’s

direct appeal counsel only cursorily argued the issue in the opening

brief, instead waiting until the reply brief to provide specific

argument on the issue. See id. at ¶ 52. So, the division’s opinion

left intact the trial court’s order imposing the costs of prosecution.

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B. The Postconviction Proceedings

¶ 13 On remand, the postconviction court held a restitution hearing

consistent with the division’s instructions. Suarez didn’t raise any

argument at that hearing regarding the costs of prosecution. The

court ultimately denied the restitution motion on the ground that

Suarez had been convicted of causing the victim mere bodily injury,

not serious bodily injury, and the prosecution hadn’t proven what

portion of the restitution request, if any, was based solely on the

victim’s bodily injury.

¶ 14 Nearly a year later, Suarez filed the postconviction motion at

issue, titled a “motion for a directed order to Adams County

Collections to vacate restitution and costs of prosecution.”

(Emphasis added.) In terms of restitution, the motion asked the

postconviction court to vacate the original restitution order

because, although the court denied the restitution motion on

remand, it didn’t formally vacate the original restitution order, so

restitution remained owing and accruing interest. But notably, in

the motion, Suarez also asked the postconviction court to vacate

the original order imposing the costs of prosecution, again

suggesting that the costs associated with the medical expert weren’t

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attributable to the third degree assault of which he had been

convicted.

¶ 15 As to restitution, the postconviction court granted Suarez’s

motion and vacated the original restitution order. As to the costs of

prosecution, the court ordered the prosecution to file a response.

¶ 16 In the prosecution’s response, it argued, among other things,

that the medical expert’s testimony was directly related to proving

that the victim suffered bodily injury, an element of the third degree

assault of which Suarez was convicted. In doing so, the

prosecution again emphasized that the victim didn’t testify at trial,

and it asserted that the medical expert was one of the only

witnesses to testify about the victim’s bodily injury.

¶ 17 The postconviction court issued a written order denying

Suarez’s motion to vacate the costs-of-prosecution order, explaining

that it was doing so “[f]or the reasons stated in the prosecution’s

response.”

II. Analysis

¶ 18 On appeal, Suarez contends yet again that the prosecution

wasn’t entitled to recover the costs of prosecution because the

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medical expert wasn’t necessary to prove mere bodily injury, an

element of the third degree assault of which he was convicted.

¶ 19 However, Suarez concedes that he already had the opportunity

to litigate that issue in 2019 and 2020 in the district court, and

later in 2020 when he filed his opening brief in the direct appeal.

Nevertheless, he argues that he didn’t get appellate review of the

original costs-of-prosecution order because his appellate counsel on

direct appeal was “obviously” ineffective in waiting until the reply

brief to present specific argument challenging the costs of

prosecution. He also argues that we should address the merits of

the issue now, “[i]n the interest of judicial economy,” because his

only alternative would be to file a Crim. P. 35(c) motion raising that

ineffective assistance claim after the conclusion of this appeal.

¶ 20 What Suarez appears to overlook is that he could have raised

that ineffectiveness claim against direct appeal counsel in the

postconviction motion that is currently before us. He didn’t.

Instead, in that motion, he simply reargued the merits that the

medical expert wasn’t necessary to prove the third degree assault of

which he was convicted. In other words, it is in this appeal that he

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is raising the ineffective assistance claim for the very first time in

this case.

¶ 21 We generally won’t address ineffective assistance claims raised

for the first time on appeal. See People v. Cuevas, 2024 COA 84,

¶ 33 (holding that, because of the need for a developed factual

record, an ineffective assistance claim should ordinarily be raised in

a postconviction motion, not on appeal); People v. Huggins, 2019

COA 116, ¶ 17 (“When a defendant does not raise an issue in a

postconviction motion or during the hearing on that motion, and

the postconviction court therefore does not have an opportunity to

rule on the issue, as a general rule, the issue is not properly

preserved for appeal and [an appellate court] will not consider it.”).

¶ 22 Despite that rule, Suarez effectively asks us to hold, as a

matter of law, that his counsel’s performance on direct appeal was

constitutionally deficient for waiting until the reply brief to present

specific argument challenging the costs of prosecution. See

Strickland v. Washington, 466 U.S. 668, 687-91 (1984) (a defendant

raising an ineffective assistance claim must show that counsel’s

performance was constitutionally deficient). We decline to do so.

See Cuevas, ¶ 33; Huggins, ¶ 17.

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¶ 23 Further, even if we were inclined to hold as a matter of law

that direct appeal counsel’s performance was constitutionally

deficient, we wouldn’t be able to effectively analyze the prejudice

prong of the ineffective assistance claim. See Strickland, 466 U.S.

at 691-96 (a defendant raising an ineffective assistance claim must

also show prejudice, in other words, that there is a reasonable

probability that, but for counsel’s deficient performance, the result

of the proceeding would have been different). That is because the

trial transcripts aren’t part of the record on appeal. See id. at 695

(In analyzing the prejudice prong, a court “must consider the

totality of the evidence.”). So, we have no legitimate basis to

analyze key factual issues such as the content of the medical

expert’s testimony and whether the prosecution presented any other

evidence establishing that the victim suffered bodily injury (an

element of the third degree assault charge of which Suarez was

convicted). Because of that, we don’t have an adequate basis to

determine whether there is a reasonable probability that the portion

of Suarez’s direct appeal challenging the costs-of-prosecution order

would have been successful if his appellate counsel had presented

specific argument in the opening brief on that issue.

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¶ 24 “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, and to ensure that the record

is properly transmitted to an appellate court.” People v. Duran,

2015 COA 141, ¶ 12 (citing C.A.R. 10(b), (c)). Suarez’s designation

of transcripts for this appeal didn’t include the trial transcripts.

Therefore, even if we were inclined to address the merits of Suarez’s

ineffective assistance claim, we wouldn’t be able to effectively do so.

III. Disposition

¶ 25 The order is affirmed.

JUDGE GROVE and JUDGE JOHNSON concur.

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