Peo v. Howard

22CA1560 Peo v Howard 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1560
Arapahoe County District Court No. 13CR2750
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daeshaun Laquel Howard,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE HARRIS
Brown and Lum, JJ., concur

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

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-
Appellant
¶1 Defendant, Daeshaun Laquel Howard, appeals the district

court’s summary denial of his Crim. P. 35(c) motion alleging

ineffective assistance of counsel. We affirm.

I. Background

¶2 In 2013, just after he turned eighteen, Howard shot at two

people outside a bar, killing one of them and injuring the other. A

jury convicted him of, among other offenses, first degree murder

after deliberation. The trial court imposed the mandatory sentence

of life in prison without parole.

¶3 On direct appeal, Howard argued, as relevant here, that his

life without parole sentence, which did not account for his “juvenile

characteristics,” “violated the federal and state constitutions’ . . .

prohibition against barbaric or disproportionate sentences.” The

division rejected that argument and affirmed his life without parole

sentence. People v. Howard, slip op. at ¶¶ 75-79 (Colo. App. No.

17CA0829, Dec. 26, 2019) (not published pursuant to C.A.R. 35(e)).

¶4 Howard filed a timely pro se Crim. P. 35(c) motion, alleging

that his lawyers had provided ineffective assistance during the plea

bargaining process. Later, appointed counsel filed a supplemental

motion, alleging in relevant part as follows:

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• “[F]rom the beginning,” Howard told his lawyers that he

“wanted a [plea] offer.”

• In September 2014, Howard authorized his lawyers to propose

a plea agreement with a twenty-five-year sentence.

• The prosecution did not respond to Howard’s proposal until

May 2016. In an email to defense counsel, the prosecutor

rejected Howard’s offer and told counsel that negotiations

could only continue if Howard were “willing to accept a higher

number (at least in the 40s).”1

• Counsel did not tell Howard that the prosecution would only

consider an offer involving a sentence “in the 40s.” Instead,

they told Howard that he had to make a “counteroffer” to “get

the prosecution down from 48 years,” even though, at that

point, the prosecution was still open to a sentence “in the

40s.”

1 The supplemental motion omits the words “at least,” but we quote

the language as it appears in the email, which is attached to the
motion.

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• Howard agreed to seek an offer of a thirty-five-year sentence.

Counsel advised Howard about parole eligibility with respect to

a thirty-five-year sentence.

• “Because the offer to ‘negotiate in the 40s’ did not explicitly

come with an expiration date,” counsel did not advise Howard

“that the opportunity to negotiate ‘in the 40s’ was of limited

duration.”

• By August 2016, the prosecution “would not consider anything

other than 48 [years].”

• Despite Howard’s request, counsel declined to speak to

Howard’s mother or stepfather about the case and whether

Howard should plead guilty.

• There was no movement in negotiations for almost a year. A

week before the March 2017 trial, Howard met with the

prosecution to try to obtain an offer. But by then, even the

potential forty-eight-year offer was off the table.

• The case proceeded to trial. It was only during the trial that

Howard “realize[d] that he needed to do anything” to “not . . .

go to trial.” His realization came about after his stepfather

explained to him one night “that there was a difference

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between a 48-year sentence and a life sentence.” So Howard

told his lawyers that he would accept a forty-eight-year offer,

but the prosecution declined to extend one.

¶5 Based on these factual allegations, Howard asserted that his

counsel had performed deficiently by (1) failing to disclose that the

prosecution would continue plea negotiations only if Howard were

willing to accept an offer “in the 40s”; (2) failing to tell Howard that

the opportunity to negotiate for an offer “in the 40s” was likely to

expire at some point; (3) “improperly push[ing] the plea negotiations

higher” than necessary, by suggesting a forty-eight-year sentence to

the prosecution;2 (4) failing to consult with Howard’s family about

the plea negotiations; and (5) failing to adequately advise Howard

about the “benefits of pleading guilty to a 40-something year

sentence,” including failing to explain the “(minimal) difference

between” a thirty-five-year sentence and a sentence “in the 40s.”

2 The initial pro se motion alleged that the prosecution conveyed an

early, tentative offer of forty-eight years but then indicated in the
May 2016 email that “there was room to negotiate in the ‘40’ range.”
To the extent the supplemental motion’s allegations and its theories
of deficient performance and prejudice are inconsistent with those
set forth in the pro se motion, the supplemental motion controls.
See People v. Smith, 2024 CO 3, ¶ 29.

4
¶6 As for prejudice, Howard alleged there was a reasonable

probability that, but for counsel’s errors, the prosecution would

have extended “an offer in the 40s.” And he said that if counsel had

properly advised him about the benefits of such a sentence, he

would have accepted the offer.

¶7 In a detailed, well-reasoned order, the district court denied

Howard’s motion without a hearing. The court determined that

during plea negotiations, counsel made objectively reasonable

strategy decisions aimed at securing an offer acceptable to Howard,

and that Howard had sufficient information to evaluate any

potential offer. The court also determined that, regardless,

counsel’s alleged errors did not prejudice Howard because it was

improbable that the prosecution would have made a firm offer that

Howard would have accepted.

II. Ineffective Assistance of Counsel Claims

¶8 Howard alleges that the district court erred by summarily

denying his ineffective assistance of counsel claims. Though our

reasoning differs in certain respects from that of the district court,

we agree that Howard’s motion does not warrant a hearing. See

People v. Taylor, 2018 COA 175, ¶ 8 (appellate court can affirm the

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district court’s ruling on a Crim. P. 35(c) motion on any ground

supported by the record).

A. Legal Principles and Standard of Review

¶9 A criminal defendant has a constitutional right to the effective

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

prevail on a claim of ineffective assistance of counsel, the defendant

must show 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 outcome

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984).

¶ 10 A defendant’s right to the effective assistance of counsel

extends to the plea bargaining process. Missouri v. Frye, 566 U.S.

134, 144 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus,

a claim alleging ineffective assistance during plea negotiations is

subject to Strickland’s two-part analysis. Hill v. Lockhart, 474 U.S.

52, 58 (1985). To demonstrate prejudice in this context, the

defendant must show that but for counsel’s errors, there is a

reasonable probability that he would have received and accepted a

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plea offer and that his sentence under the offer would have been

less severe than the sentence he received after trial. People v.

Delgado, 2019 COA 55, ¶ 21.

¶ 11 “Because a defendant must show both deficient performance

and prejudice, a court may resolve the claim solely on the basis that

the defendant has failed in either regard.” People v. Karpierz, 165

P.3d 753, 759 (Colo. App. 2006).

¶ 12 To warrant a hearing, the Crim. P. 35(c) motion must allege

facts that, if true, would entitle the defendant to postconviction

relief. People v. Joslin, 2018 COA 24, ¶ 4. Thus, the court may

deny a motion without holding a hearing where the defendant’s

allegations are bare and conclusory; the allegations, even if true, do

not state an ineffective assistance of counsel claim; or the record

directly refutes the defendant’s claims. Id.

¶ 13 We review the summary denial of a Rule 35(c) motion de novo.

People v. Luong, 2016 COA 13M, ¶ 7.

B. The District Court Did Not Err by Summarily Denying the
Motion

¶ 14 Addressing each of Howard’s claims in turn, we conclude that

his factual allegations contradict his assertions of deficient

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performance and prejudice or are otherwise insufficient to state an

ineffective assistance of counsel claim.

1. Counsel’s Failure to Disclose the Prosecution’s Negotiating
Position

¶ 15 Howard’s primary claim is that his lawyers were ineffective for

failing to relay the substance of the prosecutor’s May 2016 email —

that negotiations could only continue if Howard were willing to

accept a sentence “at least in the 40s.”3 But Howard never explains

with specificity how counsel’s failure to convey that information

prejudiced him. On appeal, he says only that counsel’s error

deprived him of an “opportunity to consider making an offer in the

40s.”

3 The People note that an exhibit to the supplemental motion

appears to contradict Howard’s allegation that his lawyers did not
disclose the substance of the prosecutor’s email. They point to
handwritten notes from counsel’s May 2016 jail visit with Howard
that include the following notations:

Because we conclude that Howard’s claim fails on other grounds,
we need not consider whether the claim is directly refuted by the
exhibit.

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¶ 16 But Howard did not specifically allege that the prosecution

would have agreed at any time to a sentence lower than forty-eight

years. And by his own account, as early as August 2016, the

prosecution had confirmed that it would not consider a lower offer.

¶ 17 Moreover, Howard acknowledges that counsel’s failure to

communicate about the email did not prevent him from accepting

an offer “in the 40s.” Howard’s motion alleged that in August 2016,

“there had been discussions of a 48-year offer,” the prosecution

would not consider a lower offer, and counsel had Howard meet

with the prosecution in March 2017 in the hope that the forty-eight-

year offer would be “reextend[ed].” Howard did not allege that he

was ever unaware that he could accept an offer of forty-eight years.

¶ 18 Thus, Howard has failed to sufficiently allege that his lack of

knowledge of the May 2016 email prejudiced his ability to negotiate

(or accept) an offer “in the 40s.”

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2. Counsel’s Failure to Advise Howard of a Deadline for Securing
a Plea Offer

¶ 19 Howard asserts that counsel were ineffective for failing to tell

him that “there was an expiration to the ability to engage in plea

negotiations.” But in his motion, Howard alleged that the offer to

negotiate “in the 40s” did not “explicitly come with an expiration

date.” And indeed, Howard’s allegations demonstrate that both

sides considered negotiations to be ongoing, even up to the week

before trial. If there was no deadline for negotiating a plea offer, it

follows that counsel did not perform deficiently by not advising

Howard about a deadline for securing an offer.

¶ 20 But even if counsel should have explained in more general

terms that time was of the essence, Howard did not sufficiently

allege prejudice. In his motion, he said that counsel’s failure to

properly advise him meant that he lost an opportunity to make a

counteroffer or negotiate a plea offer “in the 40s.” But by August

2016, at the latest, the only possible offer available to Howard was a

non-negotiable offer of forty-eight years.

¶ 21 True, in his motion, Howard said that he “had no idea he

could not accept the prosecution’s offer to 48 years during trial.”

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But he did not explain why that lack of knowledge mattered. For

example, he did not allege that if he had known about a potential

deadline for negotiations, he could have obtained a more favorable

offer before August 2016 and would have accepted that offer. Nor

did Howard allege that if he had known about a deadline, he would

have tried to accept the potential forty-eight-year offer in August

2016 or at any time before March 2017, the month his trial started.

¶ 22 In the prejudice section of his motion, Howard alleged only

that the reason he did not seek a plea offer more in line with the

prosecution’s demand “was because he was misadvised by counsel”

to not “pursue plea negotiations,” a statement that, in addition to

having no connection to his purported unawareness of the plea

negotiation deadline, seems inconsistent with his other factual

allegations. In his reply brief on appeal, Howard adds that if he had

known about a deadline, he would have “asked for an offer in the

40s earlier.” But that allegation is still insufficient: he had a

potential offer “in the 40s earlier” — a potential forty-eight-year

offer. To show prejudice, he had to allege that if he had known he

would run out of time to accept the forty-eight-year offer, he would

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have tried to accept it earlier. But he never says that, and his

allegations suggest otherwise.

3. Counsel’s Decision to Push Negotiations Higher Than
Necessary

¶ 23 Howard claims that in August 2016, counsel improperly

increased the starting point for negotiations by broaching a possible

forty-eight-year sentence, despite the prosecution’s willingness to

negotiate for a sentence “in the 40s.”

¶ 24 Howard points to an August 22, 2016, email to support this

claim. But the email shows that counsel was responding to a

tentative offer from the prosecution. When counsel asked, “Is there

ANY chance that we can resolve this case with less than 48 years?”,

the prosecutor responded, “I don’t think there is room on the offer.”

¶ 25 At any rate, as we have noted, Howard did not specifically

allege that the prosecution would have agreed at any point to a

sentence of less than forty-eight years. So even if counsel’s email

created a forty-eight-year starting point for negotiations, Howard

has failed to sufficiently allege prejudice from that error.

¶ 26 Indeed, Howard’s theory of prejudice is that if counsel had

performed competently, the prosecution would have extended an

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offer “in the 40s,” and Howard would have accepted the offer. A

forty-eight-year sentence is a sentence “in the 40s,” so for this

reason, too, counsel’s reference to a forty-eight-year sentence could

not have prejudiced Howard.

4. Failure to Consult With Howard’s Family

¶ 27 Howard argues that his counsel were ineffective for failing to,

first, educate his family about the strength of the prosecution’s case

(including his mother, a witness for the prosecution); and second,

enlist his family members to “mak[e] him understand the

seriousness of the situation and the benefits of the plea offer.”

According to Howard, this duty, which arises from juvenile defense

standards, applies to his counsel because Colorado defense

attorneys have adopted the standards in cases involving “18-year-

olds facing life without parole.” This claim fails on both the

deficient performance and prejudice prongs.

¶ 28 In his motion, Howard alleged that his counsel’s performance

fell below the guidelines set forth in the Campaign for the Fair

Sentencing of Youth (CFSY) and the National Juvenile Defense

Standards (NJDS). Specifically, he pointed to CFSY standard 1.4

and NJDC standard 2.6. The former suggests that lawyers “should

13
be sensitive to the ongoing concerns and involvement of caretakers”

and should provide family members “with regular updates and the

opportunity to ask questions and receive clarification on the legal

process.” See The Campaign for the Fair Sentencing of Youth, Trial

Defense Guidelines: Representing a Child Client Facing a Possible

Life Sentence, https://perma.cc/AA78-D28Y. The latter advises

lawyers to “work to overcome barriers to effective communication by

. . . enlisting the help of outside experts or other third parties when

necessary, and taking time to ensure the client has fully understood

the communication.” See National Juvenile Defender Center,

National Juvenile Defense Standards, https://perma.cc/RL7F-

ZBFF.

¶ 29 Neither standard requires defense counsel to disclose to family

members the evidence against the client or to seek the assistance of

family members in persuading the client to accept a plea offer.

Thus, Howard has not shown that counsel had a duty to involve his

family in the plea negotiations. And unless counsel had such a

duty, their failure to discharge it cannot constitute deficient

performance.

14
¶ 30 Additionally, Howard has never alleged any prejudice from

counsel’s failure to consult with his family. He does not say, for

example, that if his lawyers had spoken to his mother or stepfather,

he would have agreed to accept a forty-eight-year plea offer

sometime before the week of trial.

5. Failure to Explain the Benefits of a Potential Plea Offer

¶ 31 Finally, Howard argues that counsel were ineffective for failing

to explain the benefits of an offer of a sentence “in the 40s.” This

claim is mostly bare and conclusory because, with one exception,

Howard does not specifically allege what his lawyers should have

told him to help him understand the offer’s benefits.

¶ 32 The exception is the allegation that his counsel should have

“meaningfully explain[ed] the difference between a life sentence

without the possibility of parole [and] a 40-something-year

sentence.” In our view, no detailed explanation would be necessary,

so no prejudice resulted. The difference between never being

released from prison and someday being released from prison is

self-explanatory, even to an eighteen-year-old. At any rate, Howard

never alleged that he did not understand the difference between

15
those sentences; he simply said that counsel did not do a good job

of explaining it.

¶ 33 Likewise, any failure to explain the difference between a thirty-

five-year sentence and a sentence “in the 40s” could not have

prejudiced Howard. That difference is a matter of simple math —

somewhere between six and fourteen years. In his motion, Howard

acknowledged that counsel fully advised him of the consequences of

accepting a thirty-five-year offer, including providing information

about parole eligibility. Thus, we agree with the district court that,

by his own admission, Howard had enough information to evaluate

the benefit of an offer of a sentence “in the 40s.”

6. Conclusion

¶ 34 In sum, Howard’s factual allegations, even if true, do not

support his legal claims of deficient performance or prejudice.

Accordingly, the district court did not err by denying his ineffective

assistance of counsel claims.

III. Proportionality Challenge

¶ 35 The district court conducted an abbreviated proportionality

review. It determined that first degree murder is a per se grave or

serious crime and concluded that Howard’s life without parole

16
sentence, which was legislatively mandated, was constitutional. In

the alternative, it determined that, even if first degree murder were

not a per se grave or serious crime, the facts of the case showed

that the offense was grave or serious and therefore Howard’s

sentence was not grossly disproportionate.

¶ 36 On appeal, Howard contends that the district court erred in

two ways: first, by determining that first degree murder is a per se

grave or serious offense because a categorical per se grave or

serious designation runs afoul of supreme court precedent and is

unconstitutional; and second, by failing to consider Howard’s age

and background in determining whether the crime was nonetheless

grave or serious as a matter of fact.

¶ 37 We agree with the district court and the People that Howard’s

proportionality challenge is arguably successive of the claim he

raised on direct appeal. But because the district court elected to

resolve the claim on the merits, we will too. We conclude that the

first argument fails as a matter of law, and therefore we need not

address the second argument.

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A. Legal Principles and Standard of Review

¶ 38 The Eighth Amendment prohibits sentences that are grossly

disproportionate to the crime. Wells-Yates v. People, 2019 CO 90M,

¶¶ 5, 10. Whether a sentence is grossly disproportionate is a

question of law that we review de novo. Id. at ¶ 35.

¶ 39 A proportionality review involves a two-step process: an

abbreviated proportionality review and, if needed, an extended

proportionality review. Id. at ¶¶ 7, 10.

¶ 40 In conducting an abbreviated review, the court compares

(1) the gravity or seriousness of the offense and (2) the harshness of

the penalty. Id. at ¶¶ 11-14, 18. Whether a crime is grave or

serious ordinarily depends on the facts and circumstances

underlying the offense and is determined by assessing the harm

caused or threatened to the victim or society and the culpability of

the offender. People v. Kennedy, 2023 COA 83M, ¶ 14. If a crime is

grave or serious, and as long as the penalty is within the statutory

range, the sentence is “nearly impervious to attack.” Id. at ¶ 15.

¶ 41 But when a crime is designated as “per se grave or serious,”

the reviewing court skips the first step of the abbreviated review —

“i.e., was this specific crime grave or serious” — and “proceeds

18
straight to an assessment of the harshness of the penalty.” Id. at

¶ 16. A crime is per se grave or serious if, based on its statutory

elements, it necessarily involves grave or serious conduct, meaning

the crime would be grave or serious in every potential factual

scenario. Wells-Yates, ¶ 63.

B. The Court Did Not Err in Its Proportionality Analysis

¶ 42 The per se grave or serious shortcut was first adopted in

People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992), abrogated by,

Wells-Yates v. People, 209 CO 90M. Howard contends that the

categorical designation of crimes as per se grave and serious,

“without regard to the facts underlying the offense,” is “a

misapplication” of Gaskins’s holding. But that argument is

foreclosed by Wells-Yates, which reaffirmed the per se grave and

serious shortcut for certain crimes. Wells-Yates, ¶¶ 13, 62

(explaining that “[o]nce a crime has been deemed per se grave or

serious,” courts “skip the first subpart of step one . . . (gravity or

seriousness) and proceed directly to the second subpart . . .

(harshness of the penalty)”).

¶ 43 Because we are bound by supreme court decisions, we must

also reject Howard’s argument that, notwithstanding Wells-Yates,

19
categorical per se grave or serious designations violate the Eighth

Amendment. See People v. Wright, 2021 COA 106, ¶ 65 (rejecting

the identical argument on the merits and because divisions of the

court of appeals are “bound to follow our supreme court’s decision

in Wells-Yates”).

¶ 44 Howard does not dispute that, if a per se grave or serious

designation is allowable, first degree murder is a per se grave or

serious offense. See People v. Sellers, 2022 COA 102, ¶ 65 (first

degree felony murder is a per se grave or serious crime), aff’d, 2024

CO 64; People v. Castillo, 2022 COA 20, ¶ 42 (first degree extreme

indifference murder is a per se grave or serious crime). Thus, the

district court was not required to assess the particular

circumstances of Howard’s offense. See Kennedy, ¶ 16. And

Howard does not argue that, even if first degree murder is a per se

grave or serious crime, his sentence is nonetheless grossly

disproportionate.

¶ 45 Accordingly, the district court did not err by concluding that

Howard’s sentence comports with the Eighth Amendment.

IV. Disposition

¶ 46 The order is affirmed.

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JUDGE BROWN and JUDGE LUM concur.

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