Peo v. Snider

23CA2108 Peo v Snider 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2108
Rio Blanco County District Court No. 09CR56
Honorable Denise K. Lynch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jerry D. Snider,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE GROVE
Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Erin Wigglesworth, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Jerry D. Snider appeals the postconviction court’s order

denying his petition for postconviction relief without a hearing. We

affirm.

I. Background

¶2 A jury found Snider guilty of one count each of first degree

murder and aggravated robbery. The convictions were based on

evidence that, sometime between the evening of July 2 and the

morning of July 3, 2009, Snider struck his sleeping father in the

head with a hatchet, dragged him to the floor, struck him several

more times, and took his wallet. People v. Snider, slip op. at 1

(Colo. App. No. 11CA2579, Apr. 21, 2016) (not published pursuant

to C.A.R. 35(e)) (Snider I). Snider fled the scene in Rio Blanco

County but turned himself in at the Clear Creek County Sherriff’s

Office later in the day. Id. Thereafter, he was transferred to Denver

Health Medical Center for mental health care, and later, to the

Colorado Mental Health Institute at Pueblo (CMHIP) for evaluation

of his competency, sanity, and mental condition.

¶3 Snider entered a plea of not guilty by reason of insanity

(NGRI). At trial, his attorneys advanced the theory that, at the time

he killed his father, Snider “was experiencing the psychotic

1
symptoms of paranoid schizophrenia to the degree that he could not

distinguish moral right from wrong.” Rather, his “paranoid

schizophrenic delusions and hallucinations made him believe that

his father was part of a plot to kill” him such that it seemed he was

in imminent danger of being killed by another and had to use

deadly force to defend himself.

¶4 After the jury’s verdict, the trial court adjudicated Snider an

habitual criminal. For the first degree murder count, the court

sentenced him to life in prison without the possibility of parole.

And for the aggravated robbery count, the court imposed a

consecutive forty-eight-year prison sentence. Snider appealed his

convictions and sentence, and a division of this court affirmed. Id.

The appellate mandate was issued on June 7, 2017.

¶5 Five years later, Snider filed a pro se postconviction motion

asserting claims under both Crim. P. 35(a) and (c). Appointed

counsel then filed a supplement asserting that (1) Snider’s

aggravated robbery sentence was not authorized by law and raised

an inference of gross disproportionality; and (2) Snider’s trial

attorneys provided ineffective assistance. In particular, the

supplement alleged that counsel performed deficiently by:

2
1. conceding that Snider’s mental condition did not prevent

him from forming the requisite culpable mental states

because counsel called Dr. Karen Fukutaki, who, in

Snider’s view, was the only expert who testified that he

could form such a mental state;

2. failing to properly endorse Dr. Lennart Abel as an expert,

thus precluding the defense from asking Dr. Abel

whether Snider was able to form the culpable mental

state for first degree murder;

3. failing to ask any expert for their opinion regarding

Snider’s ability to form the culpable mental state for

aggravated robbery and generally “disregard[ing]” the

aggravated robbery charge;

4. failing to investigate and present evidence in support of

an involuntary toxication defense based on medications

Snider was prescribed and took as directed just before

the crimes occurred;

5. failing to call Dr. Ethan Swift, the Denver Health doctor

who evaluated Snider’s mental health in the days

immediately following his arrest; and

3
6. failing to effectively argue the issue of “settled insanity” in

support of an instruction on how the presence of prior

drug use may not in all circumstances deprive a

defendant of an insanity defense.

¶6 After receiving the prosecution’s response, the postconviction

court denied the motion in a written order. The court rejected

Snider’s Crim. P. 35(a) claim, concluding that the aggravated

robbery sentence was lawful. As to Snider’s Crim. P. 35(c) claims

related to aggravated robbery, the court found that (1) the claims

were untimely, and he had failed to demonstrate justifiable excuse

or excusable neglect for his late filing; and (2) the proportionality

claim was raised and resolved in his direct appeal.1

¶7 The court then rejected Snider’s claims of ineffective

assistance of counsel related to his first degree murder conviction.

The court concluded that counsel did not perform deficiently by

failing to make a more effective argument for an instruction on

“settled insanity” because settled insanity has been rejected as a

1 In his reply brief, Snider concedes that his request for a second

review of the proportionality of his aggravated robbery sentence has
been foreclosed by the Colorado Supreme Court’s recent opinion in
McDonald v. People, 2024 CO 75.

4
defense in Colorado. As to the remaining ineffective assistance

claims, the court determined that all of the alleged deficiencies were

strategic decisions on the part of counsel. In the alternative, the

court concluded that Snider was not prejudiced by any of counsel’s

alleged deficiencies because the evidence of his guilt was

overwhelming.

II. Crim. P. 35(a)

¶8 We first reject Snider’s claim that his aggravated robbery

sentence is illegal.

¶9 A sentence is illegal if it is inconsistent with the statutory

sentencing scheme outlined by the legislature. People v. Wenzinger,

155 P.3d 415, 418 (Colo. App. 2006). Such a sentence may be

corrected at any time. Crim. P. 35(a). The legality of a sentence is a

question of law that we review de novo. People v. Bassford, 2014

COA 15, ¶ 20.

¶ 10 Snider asserts that his forty-eight-year aggravated robbery

sentence does not comply with statutory requirements because the

sentencing court erroneously found that “the habitual sentencing

requirements preempted the requirement to sentence [him] as

mandated by [section] 18-4-302(4),” C.R.S. 2024.

5
¶ 11 Section 18-4-302(4) states that a defendant convicted of

aggravated robbery pursuant to section 18-4-302(1)(b), “shall” be

sentenced “in accordance with the provisions of section 18-1.3-

406,” C.R.S. 2024 (the crime of violence statute). The crime of

violence statute requires any person convicted of a crime of violence

to be sentenced to a term of incarceration of at least the midpoint

in, but not more than twice the maximum of, the presumptive

range, as modified for an extraordinary risk crime. § 18-1.3-

406(1)(a). Thus, a conviction under subsection (1)(b) of the

aggravated robbery statute normally requires a sentence of ten to

thirty-two years because aggravated robbery is a class 3 felony

extraordinary risk crime with a modified presumptive range of four

to sixteen years. See §§ 18-4-302(3), 18-1.3-401(10)(a), (b)(IX),

C.R.S. 2024; see also § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024.

¶ 12 However, when, as here, “[a] defendant is also charged and

adjudged an habitual criminal, the enhanced sentencing portion of

[the crime of violence] statute is preempted by the enhanced

sentencing provisions of the habitual criminal statute.” People v.

Pena, 794 P.2d 1070, 1071 (Colo. App. 1990), overruled on other

grounds by Robles v. People, 811 P.2d 804 (Colo. 1991); accord

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People v. Chavez, 2020 COA 80M, ¶¶ 11-12. Thus, in Snider’s case,

the trial court was required to impose a sentence of three times the

maximum in the modified presumptive range — namely, forty-eight

years. See § 18-1.3-801(1.5), C.R.S. 2009; see also People v. Hoefer,

961 P.2d 563, 568 (Colo. App. 1998) (a presumptive sentencing

range must be modified for enumerated extraordinary risk crimes,

for purposes of subsequently applying a habitual criminal sentence

multiplier).

¶ 13 Accordingly, Snider’s aggravated robbery sentence is

authorized by law, and the postconviction court did not err in so

concluding.2

III. Crim. P. 35(c)

¶ 14 A trial court may deny a Crim. P. 35(c) motion without

conducting an evidentiary hearing where the motion, the files, and

the record clearly establish that the defendant is not entitled to

relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). Thus, a

2 Snider’s postconviction motion also challenged the consecutive

nature of his sentences. He abandoned this claim on appeal and,
therefore, we do not address it. People v. Rodriguez, 914 P.2d 230,
249 (Colo. 1996) (concluding that a defendant’s failure to reassert
on appeal all of the claims on which the postconviction court ruled
constitutes a conscious relinquishment of those claims).

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postconviction court may deny a Crim. P. 35(c) motion without a

hearing if (1) the allegations are bare, conclusory, vague, or lacking

in detail; (2) the allegations, even if true, do not warrant relief; or

(3) the record refutes the claims. See Crim. P. 35(c)(3)(IV), (V);

People v. Duran, 2015 COA 141, ¶ 9.3

¶ 15 Snider contends that the postconviction court erred by

denying his Crim. P. 35(c) claims without a hearing. Reviewing that

decision de novo, we disagree. See People v. Cali, 2020 CO 20,

¶ 14.

A. Justifiable Excuse/Excusable Neglect

¶ 16 In his motion, Snider conceded that, as to his class 3 felony

aggravated robbery conviction, his Crim. P. 35(c) claims were filed

outside of the relevant three-year time limitation set forth in section

16-5-402(1), C.R.S. 2024. Pursuant to section 16-5-402(2)(d),

3 Snider appears to argue that the postconviction court could not

consider anything except “the pleadings” in denying relief under
Crim. P. 35(c)(3)(V). Because, in our view, this argument was not
raised until his reply brief, we need not consider it. In any event,
even under Crim. P. 35(c)(3)(V), a court may deny a Rule 35(c)
motion without a hearing based on its review of the motion, files,
record, and pleadings. See People v. Chipman, 2015 COA 142,
¶¶ 21, 25 (stating this standard for summary denial of counsel’s
supplemental Crim. P. 35(c) motion).

8
however, he argued that he should be excused from the time bar

because his mental health issues impacted his ability to timely file.

Applying the factors set forth by our supreme court for determining

justifiable excuse or excusable neglect, People v. Wiedemer, 852

P.2d 424, 440-42 (Colo. 1993), the postconviction court disagreed.

¶ 17 On appeal, Snider argues that the postconviction court erred

by failing to hold a hearing on his allegations of justifiable excuse or

excusable neglect. In his view, the court applied an erroneous legal

standard by noting that he did not file anything in support of the

allegations.

¶ 18 True, to qualify for a hearing, a defendant need not provide

evidentiary support for a claim of justifiable excuse or excusable

neglect. People v. Chavez-Torres, 2019 CO 59, ¶ 17. Rather, he

need only allege facts that, if true, would constitute justifiable

excuse or excusable neglect under section 16-5-402(2)(d). Chavez-

Torres, ¶ 16. Whether a defendant did so is a question of law that

we review de novo. Id. at ¶ 11. We conclude that Snider did not.

¶ 19 Snider claimed that:

(1) circumstances or outside influences prevented a timely

challenge to his aggravated robbery conviction because

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he had only “recently” begun taking additional

medication, which helped him to comprehend his

condition and understand his legal needs;

(2) until his mental health was addressed, he had no reason

to believe there were means (other than his direct appeal)

to question the constitutionality of his conviction, or that

his aggravated robbery conviction needed different

treatment than his first degree murder conviction;

(3) while suffering from an untreated mental illness, he was

not able to comprehend that his convictions might be

constitutionally infirm;

(4) there were no other means of challenging his convictions;

and

(5) although a significant amount of time had passed since

his conviction, “the records are complete and the amount

of time should have little impact on the People’s ability to

defend the challenge.”

¶ 20 The postconviction court found that Snider’s assertion that his

mental health prevented him from timely filing a postconviction

motion related to his aggravated robbery conviction was “bald and

10
conclusionary.” It further found that the court files showed that

Snider was of sufficiently sound mind to file a “well written pro se

motion for reconsideration of sentence” in 2018 and a pro se motion

for transcripts in 2019. In the latter motion, Snider asserted his

belief that “grievous errors occurred during the penalty phase of

[his] trial,” and said, “Needless to say, these transcripts are

essential for accuracy in filing post-conviction remedies.” Both of

these pleadings were filed within three years of the date that

Snider’s aggravated robbery conviction became final and contradict

his claim that his mental health prevented him from timely

investigating and pursuing postconviction relief. In any event, even

if there were periods where Snider’s mental health suffered, he fails

to account for why he was unable to file his Crim. P. 35(c) claims

during the periods he had a grasp on postconviction remedies and

the need to do so. Wiedemer, 852 P.2d at 441 (a defendant claiming

justifiable excuse or excusable neglect must account for the entire

period of his delay).

¶ 21 Accordingly, we perceive no error in the postconviction court’s

conclusion that Snider failed to adequately allege justifiable excuse

11
or excusable neglect for his failure to timely file Rule 35(c) claims

related to his aggravated robbery conviction.

B. First Degree Murder Claims

¶ 22 There is no time limit for a defendant to collaterally attack a

class 1 felony conviction under Crim. P. 35(c). § 16-5-402(1).

Accordingly, after setting forth the applicable law and addressing

one preliminary matter related to the strategic decisions of counsel,

we address Snider’s Rule 35(c) claims insofar as they relate to his

first degree murder conviction.

1. The Strickland Standard

¶ 23 Defendants have a Sixth Amendment right to the reasonably

effective assistance of trial counsel. Strickland v. Washington, 466

U.S. 668, 687 (1984). “[T]he benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Ardolino, 69

P.3d at 76. Thus, a defendant must show that (1) trial counsel’s

performance was deficient; and (2) counsel’s deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687.

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¶ 24 To establish deficient performance, 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.” Id. at 690. To establish prejudice, a

defendant must demonstrate a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different. Id. at 694. Because a defendant must show

both deficient performance and prejudice, a court may deny

requests for postconviction relief on the basis of either Strickland

prong. People v. Chipman, 2015 COA 142, ¶ 32.

2. The Postconviction Court’s Strategy Determination

¶ 25 With the exception of Snider’s “settled insanity” claim, the

postconviction court relied solely on Strickland’s performance prong

to reject Snider’s claims of deficient performance, concluding that

each of the acts and omissions that Snider challenged was the

result of a reasonable strategic decision by the defense. We

recognize that a challenged action of counsel “might be considered

sound trial strategy under the circumstances of a particular case,”

Ardolino, 69 P.3d at 76, and that a court considering a claim of

ineffective assistance “must indulge a strong presumption that

13
counsel’s conduct falls within the wide range of reasonable

professional assistance,” People v. Newmiller, 2014 COA 84, ¶ 16.

Here, however, the motion, files, and record shed virtually no light

on the extent to which the identified acts and omissions of counsel

were strategic choices made after reasonable investigation. Id. at

¶ 45. Nor did the postconviction court analyze or explain why it

concluded that the alleged errors and omissions of counsel were the

result of defense counsel’s strategic plan for the case.

¶ 26 When it comes to determining issues of strategy, the extent of

counsel’s understanding of relevant issues is “peculiarly within

[counsel’s] personal knowledge.” Ardolino, 69 P.3d at 78-79.

Therefore, “[w]ith regard to strategic choices,” trial counsel’s

credibility “can be particularly important and is a matter to be

resolved by the postconviction court.” Id. at 79. And “a reviewing

court must examine counsel’s reasons supporting” alleged strategy

decisions. Dunlap v. People, 173 P.3d 1054, 1075 (Colo. 2007).

Except for the rare situation in which the trial record reveals such

information, a postconviction hearing is the most effective way to

accomplish this task. Here, however, the record reveals nothing

about trial counsel’s subjective choices or decision making. Thus,

14
it was error for the court to reject Snider’s deficient performance

claims on the basis of strategy without examining the reasons

underlying counsel’s actions.

¶ 27 Nevertheless, examining each of Snider’s ineffective assistance

claims independent of a strategy determination, we conclude that

they all fail. See People v. Gutierrez-Vite, 2014 COA 159, ¶ 11 (“We

may affirm a trial court’s ruling on grounds different than those

employed by the court, so long as the record supports them.”).

3. Settled Insanity Jury Instruction

¶ 28 At trial, some evidence suggested that Snider may have

suffered from “settled insanity,” which refers to insanity “arising

from the long-term use of intoxicants but separate from immediate

intoxication.” Bieber v. People, 856 P.2d 811, 815 (Colo. 1993).

However, in Bieber, the supreme court rejected the doctrine of

settled insanity as an affirmative defense. Id. at 818 (“[W]e

determine that the ‘settled insanity’ doctrine conflicts with our

present statutory scheme regarding insanity and self-induced

intoxication.”).

¶ 29 Trial counsel attempted to persuade the trial court that the

supreme court had not decided whether, in evaluating an NGRI

15
defense, a jury may consider evidence of settled insanity in

combination with evidence of insanity not attributable to a

defendant’s long-term use of drugs and alcohol. Counsel tendered

an instruction (the combined insanity instruction) in support of this

argument:

In evaluating the affirmative defense of legal
insanity, you are allowed to consider evidence
of insanity attributable to the defendant’s
prolonged, voluntary use of drugs and alcohol
in combination with evidence of insanity
attributable to a mental disease or defect not
attributable to the defendant’s prolonged,
voluntary use of drugs and alcohol.

¶ 30 The trial court denied the instruction, and the Snider I division

concluded that the court did not err in doing so because it “was not

an accurate statement of the law in Colorado.” Snider I, slip op. at

13-14.

¶ 31 In the supplement to Snider’s pro se motion, postconviction

counsel argued that trial counsel failed to “effectively argue” why

“the jury should have been given further instruction on how the

presence of prior drug use may not in all circumstances deprive a

defendant of a finding of insanity.” In support of this argument,

postconviction counsel pointed out that “[m]ost jurisdictions

16
disagree with Colorado and find that settled insanity is a defense,”

and argued that the jury was not permitted to have “the full law” on

the issue.

¶ 32 Even if counsel had offered a more robust argument in favor of

the settled insanity instruction, the holding in Bieber, which flatly

rejected settled insanity as an affirmative defense, was — and

remains — dispositive. Thus, we cannot say either that counsel

performed deficiently by failing to more “effectively argue” the

settled insanity issue, People v. Houser, 2020 COA 128, ¶ 37 (“[A]n

attorney may perform effectively by choosing ‘to maneuver within

the existing law, declining to present untested or rejected legal

theories.’”) (citation omitted), or, given that the trial court was

bound by Bieber, that a different or more developed argument

would have resulted in the court providing the requested

instruction to the jury.

4. Failure to Call Dr. Swift

¶ 33 After Snider was transferred to Denver Health Medical Center,

Dr. Swift, a resident in psychiatry, examined him and could not

rule out diagnoses of schizophrenia, schizoaffective disorder,

depression, and several other primary psychiatric disorders.

17
¶ 34 According to Snider’s supplement, at his first trial (which

ended in a mistrial), Dr. Kelly O’Brien, Snider’s admitting physician,

was permitted to testify about the information obtained by

Dr. Swift, including observations that Snider was in a fetal position,

mumbled, appeared suspicious and guarded, had difficulty staying

on track, trailed off in thoughts, was illogical, exhibited poor

judgment, and had symptoms consistent with acute psychosis.

Dr. Swift further found that the symptoms and medication that had

been prescribed to Snider were consistent with thought disorders,

particularly schizophrenia. Consequently, Dr. Swift made a

provisional diagnosis of psychosis not otherwise specified.

¶ 35 “The jury that convicted Snider [at his second trial],” the

supplement asserted, “did not hear any of this information” because

“the court deemed [Dr. O’Brien’s] testimony to be hearsay” and

“advised defense counsel that if they wanted the information in

evidence, they could call Dr. Swift.” The supplement further

claimed that defense counsel performed deficiently by failing to call

Dr. Swift, and that deficiency prejudiced Snider because “[t]he jury

was not able to hear relevant information concerning his mental

18
health from a qualified psychiatrist at an important time,” namely,

in the days just after the homicide.

¶ 36 We agree with the People that the record refutes this claim. At

Snider’s second trial, Dr. O’Brien testified that Dr. Swift conducted

a psychiatric consult on Snider. Dr. O’Brien testified that Dr. Swift

noted that, when he encountered Snider, he was under a blanket in

a fetal position; “appear[ed] psychotic”; mumbled and often trailed

off at the end of sentences; was “guarded, paranoid, and having

hallucinations”; heard voices, including voices saying that they were

trying to kill him; and heard people laughing at him. Further,

Dr. Fukutaki, the defense-retained expert psychiatrist, testified that

Dr. Swift had diagnosed Snider with “psychotic disorder, not

otherwise specified.” Accordingly, because the jury indeed heard

the sum and substance of the evidence Snider claims they did not,

and because Snider does not specify any other testimony that Dr.

Swift would have offered had he been called, the record refutes his

claim of ineffective assistance.

5. Culpable Mental State

¶ 37 A defendant is insane for purposes of the affirmative defense of

NGRI if he (1) was “so diseased or defective in mind at the time of

19
the commission of the act as to be incapable of distinguishing right

from wrong with respect to that act” or (2) suffered from a condition

of mind caused by mental disease or defect that prevented him from

forming a culpable mental state that is an essential element of a

crime charged. § 16-8-101.5(1)(a)-(b), C.R.S. 2024.

¶ 38 Snider’s supplement faulted defense counsel for conceding

that he was able to form the requisite culpable mental state for

murder. Counsel did this, Snider argues, by presenting the

testimony of Dr. Fukutaki, who gave “the only expert evidence at

trial that Snider could form the required culpable mental state of

intent.”

¶ 39 As the People point out, it was the prosecution, on cross-

examination, who elicited Dr. Fukutaki’s opinion that Snider was

able to form the requisite culpable mental state. So we can hardly

say that defense counsel conceded the issue merely by offering

Dr. Fukutaki as an expert, especially when she was the only expert

to contradict the prosecution’s evidence that Snider was capable of

distinguishing right from wrong at the time of the crime. In any

event, we reject Snider’s assertion that Dr. Fukutaki was the only

expert to testify that he was capable of forming the requisite mental

20
state for murder. Notwithstanding Snider’s assertions to the

contrary, Dr. Hal Wortzel, the forensic neuropsychiatrist tasked

with evaluating Snider’s sanity at CMHIP, testified that, in his

opinion, Snider possessed the ability to form the culpable mental

state to commit the crime of first degree murder.

¶ 40 Further, we conclude that Snider’s prejudice allegations are

insufficient. Snider asserted that he was prejudiced because his

ability to present an NGRI defense based on an inability to form

specific intent and to deliberate “was impaired” by defense counsel’s

decision to focus on Snider’s ability to distinguish right from wrong.

He asserted that this was so because significant evidence of

hallucinations, paranoia, lack of sleep, and prior hospitalizations

“raise[d] questions” about whether he had the mental capacity to

form a conscious objective after reflection.

¶ 41 To the extent these prejudice allegations are not merely

conclusory, the prosecution presented significant contrary evidence

that Snider could and did form the culpable mental state of after

deliberation and with intent. In addition to Dr. Wortzel’s opinion,

Snider’s brother testified to conversations with Snider in the two

months leading up to the murder. Snider told him that (1) he “had

21
a hatchet in the shed, and the next person that fucked with him

was going to get hacked up”; (2) “sometimes I wake up and I want

to . . . kill dad”; and (3) he “was going to do something that [the

brother] was going to hate him for, but [the brother] wouldn’t have

to worry about [his] money” problems. (The brother testified that he

(the brother) inherited money after his father’s death.) Further,

when Snider turned himself in to the Clear Creek County Sheriff, he

said, “I’m wanted for murder in Rio Blanco.” Upon being asked by

law enforcement whether he had been “contemplating” killing his

father, he said he didn’t want to but had to because “people” were

coming “to get” him.

¶ 42 This evidence of Snider’s ability to form the culpable mental

state convinces us that the result of the proceeding would not have

been different but for counsel’s decision to call Dr. Fukutaki.

6. Failure to “Properly” Endorse Dr. Abel

¶ 43 Snider’s supplement asserted that Crim. P. 16(b)(1) “requires

disclosure of expert opinions by the defense to the prosecution,”

and that defense counsel performed deficiently by failing to disclose

Dr. Abel’s opinion “of whether Snider was able to form the culpable

mental state of intent.” In Snider’s view, he was prejudiced by this

22
failure “because the jury was not permitted to hear evidence from

an expert that the trial court found was relevant and the witness

was qualified to give.”

¶ 44 The motion did not, however, allege that Dr. Abel had formed

such an opinion. Rather, it speculated only that “if there was such

an opinion, one could not have been offered due to a lack of

endorsement.” Nor does the record reflect that Dr. Abel was

qualified to opine on Snider’s ability to form a particular culpable

mental state. Rather, Dr. Abel testified that he was Snider’s

treating physician when Snider was admitted to CMHIP but that he

was not tasked with “conduct[ing] a formal insanity evaluation on

Mr. Snider.”

¶ 45 Contrary to Snider’s assertion, the mere fact that Dr. Abel

testified about Snider’s mental health and determined he “was not

malingering while in the state hospital” months after the crimes

does not speak to Snider’s ability to act with intent or after

deliberation at the time the homicide occurred. Thus, because we

cannot conclude that Snider adequately alleged that counsel could

have elicited such an opinion from Dr. Abel had the expert

disclosure been broad enough to cover the proposed line of

23
questioning, it follows that counsel was not deficient for failing to do

so.

¶ 46 We note that Snider’s motion also asserted that deficiencies in

counsel’s endorsement of Dr. Abel prevented counsel from asking

the more general question whether he had ever “seen patients

present with delusions where they were able to understand that an

action was generally wrong but not be able to grasp that it was

morally wrong?” We recognize that the trial court did not permit

this question, which Dr. Abel was likely qualified to give. But

Snider’s supplement did not tether counsel’s inability to ask it to a

reasonable probability of a different outcome. That is, he did not

assert that, but for counsel’s inability to ask this question, the

result of a trial would have been different.

7. Failure to Assert Involuntary Intoxication Defense

¶ 47 In his supplement, Snider claimed that counsel failed to

(1) properly investigate the impact of prescribed medication he took

just before the crimes occurred — namely, Ativan, Antabuse, and

Cymbalta; and (2) assert an involuntary intoxication defense.

Attached to the supplement was a list of both common and rare

24
side effects of Ativan and Cymbalta, which, Snider asserted, “trial

counsel could have found through investigation.”

¶ 48 We are not persuaded that Snider’s allegations of deficient

performance are sufficient. A list of common and rare side effects

says nothing of whether Snider actually suffered any of those side

effects resulting in a lack of capacity to conform his conduct to the

requirements of law. People v. Voth, 2013 CO 61, ¶ 19. But even if

we assume, for the sake of argument, that Snider’s counsel was

deficient in failing to investigate and present an involuntary

intoxication defense, the motion and supplement failed to allege a

reasonable probability that, but for this deficiency, the result of the

proceeding would have been different. Instead, the supplement

asserted, Snider was prejudiced “because he was deprived of the

opportunity to present a legally valid affirmative defense.” Be that

as it may, untethered from an outcome-determinative allegation

that the result of the proceeding would have been different, this

assertion fails to adequately allege Strickland prejudice.

IV. Disposition

¶ 49 The order is affirmed.

JUDGE WELLING and JUDGE JOHNSON concur.

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