Peo v. Sanders

23CA0021 Peo v Sanders 06-12-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0021
Jefferson County District Court No. 11CR219
Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Victor Everitt Sanders,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE YUN
Tow and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 12, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Victor Everitt Sanders appeals the postconviction court’s order

denying his Crim. P. 35(c) motion following an evidentiary hearing.

He contends the postconviction court erred by failing (1) to find that

his counsel provided ineffective assistance in connection with plea

negotiations; (2) to consider evidence of his counsel’s suspension

and disbarment; and (3) to reopen the evidence to hear testimony

about his counsel’s statements. We reject these contentions and

affirm the order.

I. Procedural Background

¶2 In 2011, Lakewood Police Department officers arrested K.M., a

juvenile, following an undercover prostitution sting operation. K.M.

identified Sanders as her pimp, and the People charged him with

trafficking in children, pandering of a child, pimping of a child,

procurement of a child, and contributing to the delinquency of a

minor. The charges were later amended to also include one count

of sexual assault and four crime of violence sentence enhancers.

¶3 Sanders was initially represented by attorney Katherine

Spengler from the public defender’s office. Following her initial

appointment, Spengler discussed the charges with Sanders and

advised him of the potential penalties he could face if convicted.

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¶4 In March 2011, the prosecution offered Sanders a plea deal in

which he would plead guilty to pimping of a child and contributing

to the delinquency of a minor with no sentencing concessions, and

in return, the prosecution would drop the remaining charges.

Spengler communicated the offer to Sanders, but they did not

discuss it in detail because he had decided to hire private counsel.

The prosecution indicated that the offer would remain open until

mid-September 2011.

¶5 In April 2011, Sanders hired attorney Nitche Ward to

represent him.1 Ward represented Sanders until she withdrew from

his case near the end of October 2011. During Ward’s

representation, Sanders did not respond to the plea offer, and it

expired. After Ward withdrew, Spengler was reappointed to

represent Sanders.

¶6 At trial, the jury acquitted Sanders of the sexual assault

charge and deadlocked on the trafficking in children charge;2

however, the jury found him guilty on the remaining charges,

1 Another attorney, Richard Fiore, assisted Ward in representing

Sanders. However, Fiore’s representation of Sanders is not relevant
to this appeal.
2 The prosecution later dismissed the trafficking in children charge.

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including two of the four sentence enhancers. Sanders received an

aggregate sentence of thirty-four years in prison, and a division of

this court affirmed his conviction on direct appeal. People v.

Sanders, slip op. at 21 (Colo. App. No. 12CA2343, May 5, 2016) (not

published pursuant to C.A.R. 35(e)).

¶7 In 2015, while Sanders’s direct appeal was pending, Ward’s

law license was suspended because of her “fail[ure] to competently

and diligently represent many of her clients” between 2010 and

2013. This suspension was due, in part, to her failures to file

documents, to appear for hearings, to pursue and review discovery,

and to provide effective assistance of counsel to a criminal

defendant. In 2017, Ward was ultimately disbarred because of her

conduct in representing two bankruptcy clients.3

¶8 In 2018, Sanders filed a pro se Crim. P. 35(c) motion, claiming

ineffective assistance of counsel on multiple grounds. The

postconviction court denied his motion without a hearing. Sanders

3 Specifically, Ward was disbarred for failing to notify her clients of

her suspension, failing to communicate with clients, making
misrepresentations to her clients and the bankruptcy trustees,
violating fee-related rules, failing to appear at hearings, canceling
creditors’ meetings, violating court orders to disgorge her fees, and
obstructing the disciplinary proceedings.

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appealed, and a division of this court reversed in part, concluding

he was entitled to a hearing on his ineffective assistance of plea

counsel claim. People v. Sanders, slip op. at ¶ 44 (Colo. App. No.

18CA2365, July 30, 2020) (not published pursuant to C.A.R. 35(e)).

But the division affirmed the postconviction court’s order regarding

his remaining claims. Id. at ¶¶ 13-24.

II. Crim P. 35(c) Hearing

¶9 On remand, Sanders filed a supplemental Crim. P. 35(c)

motion, alleging that Ward provided ineffective assistance in

connection with the plea offer. The same judge presided over

Sanders’s case from its inception through the postconviction

proceedings. As relevant here, the postconviction court considered

Ward’s disciplinary records and heard testimony from Spengler,

Sanders, and a defense expert. However, it did not hear testimony

from Ward.4

4 Neither Sanders’s postconviction counsel nor his hired

investigator were able to thoroughly interview Ward before the
hearing.

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A. Ward’s Disciplinary Records

¶ 10 At the hearing, Sanders argued that the court should consider

Ward’s disciplinary history as evidence of a pattern of misconduct

that included the time period when she represented him. In

response, the prosecution argued that the disciplinary actions were

irrelevant and constituted improper character evidence because the

misconduct Ward was sanctioned for was not connected to

Sanders’s case. The court noted its concern that the disciplinary

records appeared to be character evidence; however, the court

allowed its admission, stating that it would “look at it and give it the

weight it’s entitled to. I’m just foreshadowing that may not be

much.”

B. Spengler’s Testimony

¶ 11 Spengler testified that she discussed the strength of Sanders’s

case with him, explaining that she believed there were weaknesses

in the prosecution’s case due to K.M.’s other cases and credibility

issues. Spengler also recalled that Sanders asked about the plea

offer once she was reappointed; however, after she informed him

that the offer had expired, Sanders responded that he would not

have taken a plea anyway.

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C. Sanders’s Testimony

¶ 12 Sanders testified that he hired Ward because he believed

private counsel would represent him better than a public defender.

He said that he never intended to go to trial and that he hired Ward

specifically to negotiate a better plea deal. Based on his

conversations with Ward, Sanders believed that if he took his case

to trial, he would face a potential prison sentence similar to the

existing plea offer. He also testified that Ward advised him that the

prosecution’s case was weak due to the “he said, she said” nature of

the evidence.

¶ 13 On cross-examination, Sanders told the court that, after

Spengler was reappointed to his case, he asked about the status of

the plea deal out of curiosity. Despite this inquiry, Sanders

admitted that he had no interest in accepting a plea deal at that

time.

¶ 14 At several points in the hearing, the court sustained the

prosecution’s objections to Sanders’s testimony about Ward’s

alleged statements but permitted him to testify about his

understanding of the plea offer, the strength of his case, and the

sentencing exposure.

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D. Defense Expert’s Testimony

¶ 15 Randy Canney, an expert qualified in ineffective assistance of

counsel, opined that Ward provided ineffective assistance when she

advised Sanders regarding the weaknesses in the prosecution’s case

and Sanders’s potential sentencing exposure. He testified that he

believed that the prosecution’s case against Sanders was “relatively

strong” and that Ward’s explanation of his sentencing exposure

“would have been bad advice.”

E. Postconviction Court’s Ruling

¶ 16 The court ordered the parties to submit written closing

arguments and allowed them to present additional argument

concerning the hearsay issue and the admissibility of Ward’s

alleged statements to Sanders.

¶ 17 In its written order, the court reconsidered its prior ruling that

prohibited witnesses from testifying about Ward’s specific

statements and decided to admit evidence of Ward’s advice to

Sanders. However, the court declined to reopen the hearing, stating

that additional testimony would not be “helpful” since the court was

aware of the advice that Ward allegedly gave Sanders.

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¶ 18 Considering the first prong under Strickland v. Washington,

466 U.S. 668 (1984), the court found that Sanders failed to show

that Ward’s representation fell below an objectively reasonable

standard. While the court noted that Ward’s advice — that Sanders

may not face much more time by taking his case to trial — “if true,

[was] problematic,” the court found that Sanders’s testimony

regarding Ward’s advice was not credible for three reasons.

¶ 19 First, the court noted that Sanders provided no evidence

outside of his testimony to corroborate Ward’s alleged advice, such

as notes, statements from his attorneys, or conversations with

family members regarding the advice he received.

¶ 20 Second, the court concluded that Ward’s alleged advice was

clearly an opinion. The court noted that Spengler testified that she

fully advised Sanders “regarding the charges and the possible

sentences applicable to those charges” and that it was “not

reasonable or plausible to suggest [that] the risk of going to trial

would not be more than the [eighteen] years offered in the plea

deal.”

¶ 21 Third, the court found that Sanders’s own assessment of his

case led him to believe that he would not face significant risk by

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proceeding to trial because he had reviewed the charging

documents himself and concluded that the prosecution’s case was

not strong on the more severe charges (sexual assault and

pandering) and that he only faced potential conviction on the lesser

charges (pimping and contributing to the delinquency of a minor).

¶ 22 The court also concluded that Sanders failed to establish

prejudice under Strickland. Again, the court found that Sanders

did not provide any objective corroborating evidence to show that he

would have accepted the plea deal but for Ward’s alleged advice.

And the court noted that Sanders told Spengler he would not have

taken a plea deal anyway.

¶ 23 Lastly, the court addressed Ward’s disciplinary records. The

court concluded that the records were propensity evidence and had

“no bearing on [Ward’s] representation of [Sanders] for this 35(c).”

III. Analysis

¶ 24 Sanders contends that the postconviction court erred by

denying his Crim. P. 35(c) motion because Ward provided ineffective

assistance by misadvising him about the strength of his case and

the potential sentencing exposure if he went to trial. He also

contends that the court failed to consider evidence of Ward’s

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suspension and disbarment, that the court failed to reopen the

evidence to hear testimony about Ward’s statements, and that Ward

failed to obtain discovery before the deadline to accept the plea

offer. We address these contentions in turn.

A. Governing Law and Standard of Review

¶ 25 A criminal defendant is constitutionally entitled to effective

assistance from his counsel. Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). This right to effective assistance of counsel extends to

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

(2012).

¶ 26 To establish a claim of ineffective assistance, a defendant must

show that (1) counsel’s performance was deficient and (2) counsel’s

deficient performance prejudiced him. Strickland, 466 U.S. at 687;

Ardolino, 69 P.3d at 76. It is the defendant’s burden to establish

both Strickland prongs, People v. Corson, 2016 CO 33, ¶ 34, and

failing to prove either of these two prongs defeats an ineffective

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

¶ 27 To establish deficient performance, a defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 687-88. “[J]udicial

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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.

¶ 28 An attorney’s performance is deficient if she fails to present

her client with the opportunity to make a reasonably informed

decision about whether to accept a plea offer. Carmichael v. People,

206 P.3d 800, 806 (Colo. 2009), overruled on other grounds as

recognized by People v. Delgado, 2019 COA 55. “Failure to correctly

advise a defendant about his sentencing exposure deprives the

defendant of the opportunity to make a reasonably informed

decision whether to accept or reject an offer and constitutes

deficient performance under Strickland.” Delgado, ¶ 17.

¶ 29 To establish prejudice in the context of a rejected plea offer, a

defendant must show a reasonable probability that (1) he would

have accepted the plea offer if counsel had correctly advised him;

(2) the prosecution would not have withdrawn the offer, and the

court would have accepted the agreement; and (3) the conviction,

sentence, or both under the plea offer’s terms would have been less

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severe than those imposed by the judgment and sentence. People v.

Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Lafler, 566 U.S. at 162).

¶ 30 In reviewing the denial of a Crim. P. 35(c) motion after a

hearing, we review the postconviction court’s conclusions of law de

novo but defer to its findings of fact if they are supported by the

evidence. People v. Villanueva, 2016 COA 70, ¶ 28. “The weight

and credibility to be given the testimony of witnesses in a Crim. P.

35(c) hearing is within the province of the [postconviction] court and

when there is sufficient evidence in the record to support the

court’s findings, its ruling will not be disturbed on review.”

People v. Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).

B. Deficient Performance

¶ 31 Sanders asserts that the postconviction court erred by

concluding that he failed to establish deficient performance. We

disagree.

¶ 32 First, record evidence supports the postconviction court’s

finding that Ward’s assessment of the weaknesses in the

prosecution’s case constituted “a professional judgment well within

the range of reasonable representation.” At the hearing, Spengler

explained that she believed the prosecution’s case was weak due to

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significant credibility issues with K.M., who had motive to blame

Sanders to avoid her own legal troubles. And despite the defense

expert’s belief that Ward’s performance was deficient, even he

concluded that the prosecution’s case against Sanders “wasn’t

ironclad.” Indeed, the jury acquitted Sanders of one charge and

was deadlocked on another charge, indicating that even the jury

found some aspects of the prosecution’s case lacking.

¶ 33 Like Ward, both Sanders and Spengler reasonably believed

that there were significant weaknesses in the prosecution’s case.

This assessment is not rendered erroneous merely because Sanders

was convicted at trial. See People v. Gandiaga, 70 P.3d 523, 525

(Colo. App. 2002) (“The constitutional right to effective assistance of

counsel ‘is not a guarantee against mistakes of strategy or exercise

of judgment in the course of a trial as viewed through the 20-20

vision of hindsight following the return of a verdict in a criminal

case.’” (quoting Dolan v. People, 449 P.2d 828, 830 (Colo. 1969))).

¶ 34 Nor are we persuaded by Sanders’s assertion that Ward

provided him with objectively deficient advice concerning his

sentencing exposure if he rejected the plea offer and went to trial.

While the postconviction court acknowledged that Ward’s alleged

13
advice, if true, was “problematic,” it found that Sanders’s testimony

was not credible.

¶ 35 Importantly, the postconviction court noted that Sanders’s

testimony was not corroborated or supported by any other evidence.

Indeed, the court found a complete absence of objective evidence —

such as a file note, discussions with family about the advice, or a

conversation with Spengler — to suggest that Ward actually

provided the alleged advice.

¶ 36 The record also supports the postconviction court’s conclusion

that Sanders was aware of his sentencing exposure. Spengler

testified that she fully advised Sanders of the charges and the

possible sentences associated with each charge when she was

initially appointed. Likewise, Sanders acknowledged Spengler

discussed the charges with him before he hired private counsel.

Thus, Sanders was — at a minimum — aware of the potential

penalties he might face if convicted.

¶ 37 Furthermore, Sanders testified that he reviewed both the

charging documents and the discovery materials, which led him to

believe that the prosecution’s case concerning the more serious

charges was weak. Sanders explained that he thought he would

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only face potential conviction on the charges of pimping and

contributing to the delinquency of a minor. While Sanders testified

that his beliefs were based — at least in part — on his

conversations with Ward, the postconviction court was not

persuaded by his recollection, and the court was not bound to

accept his description of events as true. See Williams, 908 P.2d at

1161 (the weight and credibility given to a witness’s testimony in a

Crim. P. 35(c) hearing is within the postconviction court’s

discretion). Indeed, based on his testimony, the postconviction

court deemed Sanders’s version of events as incredible. We will not

reconsider the postconviction court’s credibility determinations on

appeal. See People v. Harlan, 109 P.3d 616, 627-28 (Colo. 2005)

(“[W]e cannot second-guess the determinations of the trial court

regarding witness credibility.”).

¶ 38 Accordingly, we conclude that the postconviction court did not

err by finding that Sanders failed to establish the deficient

performance prong under Strickland.

C. Prejudice

¶ 39 Sanders also contends that the postconviction court erred by

concluding that he failed to establish prejudice. Again, we disagree.

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¶ 40 The record supports the postconviction court’s conclusion. To

establish prejudice in the context of a declined plea, a defendant

must demonstrate, as relevant here, a reasonable probability that

he would have accepted the plea offer had he been properly advised.

Delgado, ¶ 21.

¶ 41 “[A] defendant’s post-conviction testimony that he would have

accepted the plea offer is, in and of itself, insufficient to establish

prejudice.” Carmichael, 206 P.3d at 807-08; see also People v.

Sifuentes, 2017 COA 48M, ¶ 20 (“Some objective evidence must

corroborate the defendant’s testimony that he would have made a

different decision about the plea if he had been properly advised.”).

In support of his claim that he would have accepted the plea offer if

not for Ward’s advice, Sanders offered only his testimony. But the

postconviction court did not believe his statements. See Williams,

908 P.2d at 1161. Indeed, Sanders himself explained that he

thought the prosecution’s case was weak and that he believed he

only faced conviction on the less severe charges against him. And,

rather than offering evidence of his continued desire to pursue a

plea deal, Sanders said that he only asked Spengler about the plea

offer in the days before the trial because he was “curious.”

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Moreover, Spengler testified that during her pretrial discussion with

Sanders, he expressed his unwillingness to accept any plea deal.

¶ 42 Sanders did not present any “objectively corroborating

evidence” showing a reasonable probability that he would have

accepted the plea offer; thus, he failed to prove prejudice. Cf.

Carmichael, 206 P.3d at 807-08 (noting that objective evidence,

such as supporting testimony from counsel, showing that the

defendant was pursuing a plea deal satisfied this standard).

¶ 43 Consequently, we conclude that the postconviction did not err

by finding that Sanders also failed to establish the prejudice prong

of Strickland.

D. Sanders’s Other Contentions

¶ 44 Sanders raises three additional assertions of error that he

claims undermined the postconviction court’s ineffective assistance

of counsel analysis. We address and reject each contention in turn.

¶ 45 First, Sanders argues that the postconviction court erred by

“declin[ing] to consider . . . Ward’s suspension and disbarment as

part of its ineffective assistance of counsel analysis.” The record,

however, contradicts his assertion. At the postconviction hearing,

the court permitted Sanders to offer Ward’s disciplinary records as

17
evidence to support his claim. Moreover, the postconviction court

explicitly stated that it would “look at [Ward’s disciplinary history]

and give it the weight [it was] entitled to.” Thus, it appears that

Sanders is actually taking issue with the weight the postconviction

court assigned Ward’s disciplinary records. That, however, is a

determination left to the sound discretion of the postconviction

court. See Williams, 908 P.2d at 1161. Indeed, the postconviction

court examined Ward’s disciplinary records and found them to be of

limited value because they were largely propensity and character

evidence unrelated to Sanders’s case. Because the court considered

the disciplinary records, we identify no error.

¶ 46 To the extent Sanders argues that the court committed legal

error by not applying the factors from People v. Kenny, 30 P.3d 734,

744 (Colo. App. 2000), overruled on other grounds by West v. People,

2015 CO 5, to determine whether Ward was “incompetent as a

matter of law,” we disagree. Kenny applies only when the

defendant’s counsel was “less than fully licensed” while

representing the defendant and presents a “totally separate” inquiry

from the traditional Strickland analysis. Id. at 743-44. Ward’s law

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license was first suspended in 2015, well after her representation of

Sanders ended in October 2011. Kenny therefore does not apply.

¶ 47 Second, Sanders argues that the postconviction court erred by

refusing to reopen the hearing to admit additional evidence of the

contents of Ward’s statements. Again, we discern no error.

¶ 48 We review a court’s ruling on a request to introduce evidence

after closing for an abuse of discretion. People v. Waters, 641 P.2d

292, 294 (Colo. App. 1981). The postconviction court determined

that further testimony about Ward’s statements would not be

beneficial because the court was already aware of Sanders’s

contentions. Specifically, the court said it was aware that Ward

allegedly advised him that the prosecution’s case was weak and

that he would not face much more prison time if he rejected the

plea offer and went to trial.

¶ 49 The postconviction court’s determination is supported by the

record because, as noted above, Sanders testified about his

understanding of Ward’s advice. Thus, the postconviction court did

not abuse its discretion by declining to reopen the evidence. See

People v. Wilson, 2014 COA 114, ¶ 35 (“[D]iscretion is abused only

where no reasonable person would take the view adopted by the

19
trial court. If reasonable persons could differ as to the propriety of

the action taken by the trial court, then it cannot be said that the

trial court abused its discretion.” (quoting People v. Hoover, 165

P.3d 784, 802 (Colo. App. 2006))); People v. Rhea, 2014 COA 60,

¶ 58 (“[U]nder the abuse of discretion standard, the test is not

‘whether we would have reached a different result but, rather,

whether the trial court’s decision fell within a range of reasonable

options.’” (quoting People v. Salazar, 2012 CO 20, ¶ 32 (Bender,

C.J., dissenting))).

¶ 50 Third, Sanders argues that Ward provided ineffective

assistance because she failed to obtain and review discovery before

the deadline to accept the plea. However, we decline to address his

assertion because he did not preserve this claim. See People v.

Goldman, 923 P.2d 374, 375 (Colo. App. 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.”).

¶ 51 Sanders did not raise concerns about Ward’s alleged failure to

pursue discovery as it related to the plea deal in his pro se

postconviction motion, in his supplemental postconviction motion,

20
during the hearing, or in his written closing to the court. Arguing

that the discovery issue is properly before this court, Sanders

points to his original pro se postconviction motion, noting that he

raised “the fact that Ms. Ward had not conducted any investigation

or done any significant pretrial work” as part of his initial claim. He

also states that he raised specific examples of how Ward’s failure to

access discovery led to her deficient representation.

¶ 52 But Sanders raised these alleged discovery issues as part of

his original postconviction claim that both Ward and Spengler had

failed to properly investigate his case. This claim was considered —

and rejected — by a division of this court as part of Sanders’s first

postconviction appeal. Sanders, No. 18CA2365, slip op. at ¶¶ 13-

24. At best, Sanders attempts to repackage his prior discovery

allegations as part of his new claim. See Leske v. Golder, 124 P.3d

863, 865 (Colo. App. 2005) (“A defendant is prohibited from using a

proceeding under Crim. P. 35(c) to relitigate issues fully and finally

resolved in an earlier appeal.”).

¶ 53 As a result, the claim is not properly before us, and we will not

consider it on appeal.

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IV. Disposition

¶ 54 The order is affirmed.

JUDGE TOW and JUDGE SULLIVAN concur.

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