Peo v. Mitchell

23CA2189 Peo v Mitchell 10-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2189
Boulder County District Court No. 17CR586
Honorable Ingrid S. Bakke, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Emily Diane Mitchell,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 2, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for
Defendant-Appellant
¶1 Emily Diane Mitchell appeals the postconviction court’s order

denying her Crim. P. 35(c) motion without a hearing. The

postconviction court rejected her claims that plea counsel was

ineffective, the prosecutor withheld exculpatory evidence, and her

guilty plea was invalid. We affirm the order.

I. Background

¶2 Mitchell and her former significant other, Leland Silver, a

police officer at the time, both had protection orders that prohibited

contact with each other. Mitchell contacted the Boulder County

Sheriff’s Office and, in a series of reports, accused Silver of

(1) sending her threatening emails; (2) calling her from a spoofed

phone number; and (3) attempting to break into her house.1 Each

of Mitchell’s allegations was investigated by law enforcement.

¶3 As to the emails, the investigation showed that a device

connected to the internet at Silver’s house created a new email

account and, shortly thereafter, sent Mitchell the emails. But Silver

told the investigating officer that he was in Black Hawk on the night

1 Mitchell also accused Silver of sending threatening text messages,

but the results of the investigation, if any, into that allegation are
not in the appellate record.

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the emails were sent. As proof, he produced a bank statement

showing ATM withdrawals at several casinos, both before and after

the emails were sent. Additionally, Silver told the officer that

security cameras at his house recorded “a car turning around on

his street approximately 5 minutes from when the e-mail was sent,”

and that he had not changed the name or password of his internet

connection since Mitchell last used it.

¶4 Turning next to the phone call, Mitchell told the officer that

she received a call from an unknown number but did not answer it.

When she later returned the call, Silver answered, prompting her to

immediately hang up. The investigation showed that the call

originated from PrivacyShield, a phone application that enables

registered users to make anonymous phone calls. The

PrivacyShield account linked to the number Mitchell claimed Silver

used was registered to “Emily Mitchell” using the email address

“emilt[sic].mitchell@me.com.” Data from Mitchell’s phone indicated

that the PrivacyShield application had been previously installed and

that Mitchell had called the spoofed phone number on the same day

the PrivacyShield account was created. No evidence of the

PrivacyShield application was found on Silver’s phone.

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¶5 Finally, the officer reviewed police surveillance footage of

Mitchell’s house taken from the day Mitchell alleged Silver

attempted to break in and “found no evidence of Leland Silver or of

anyone coming to the front door of Mitchell’s home or attempting to

gain entry via gate into the backyard.”

¶6 The People charged Mitchell with attempt to influence a public

servant, false reporting, violations of a protection order, and

violation of bail bond conditions. In exchange for dismissal of the

other charges and a stipulation that she would receive a community

corrections sentence concurrent with her sentences in two other

criminal cases in Adams County, Mitchell pleaded guilty to false

reporting and an added count of conspiracy to commit attempt to

influence a public servant. She was sentenced to five years of

community corrections.

¶7 Thereafter, Mitchell violated the terms of her community

corrections sentences over a dozen times and was resentenced to

five years in the custody of the Department of Corrections. Mitchell

filed a pro se petition for postconviction relief, the postconviction

court appointed postconviction counsel for her, and postconviction

counsel filed a supplement to her petition.

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¶8 In a detailed order, the postconviction court denied the Rule

35(c) petition without a hearing. Mitchell now appeals that order.

II. Analysis

¶9 Mitchell contends that (1) her plea counsel was ineffective for

failing to adequately investigate and consult an expert about the

PrivacyShield application; (2) the prosecution failed to disclose

exculpatory and impeachment evidence before she pleaded guilty;

and (3) her guilty plea was not made intelligently and voluntarily

due to ineffective assistance of counsel and pressure to accept the

plea. We address and reject these contentions in turn.

A. Crim. P. 35(c) Principles and Standard of Review

¶ 10 In a Crim. P. 35(c) proceeding, a judgment of conviction is

presumed valid, and the defendant bears the burden of proving an

entitlement to postconviction relief. People v. Corson, 2016 CO 33,

¶ 25. To obtain a hearing on a postconviction motion, the

defendant must assert specific facts that, if true, would entitle her

to relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).

¶ 11 A Crim. P. 35(c) motion may be denied without a hearing when

“the motion and the files and record of the case show to the

satisfaction of the court that the defendant is not entitled to relief.”

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Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations

are bare and conclusory; (2) the allegations, even if true, do not

warrant relief; or (3) the record directly refutes the defendant’s

claims. People v. Duran, 2025 COA 34, ¶ 15.

¶ 12 We review de novo the court’s denial of a Crim. P. 35(c)

motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

B. Ineffective Assistance of Counsel

¶ 13 Mitchell contends that plea counsel was ineffective for failing

to adequately investigate and retain an expert concerning the

PrivacyShield application. Because we conclude that Mitchell failed

to adequately allege prejudice on this claim, the postconviction

court properly denied it without a hearing.

1. Applicable Law

¶ 14 A defendant has a constitutional right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).

This includes the right to sufficiently thorough pretrial

investigations “to develop potential defenses and uncover facts

relevant to guilt and punishment.” People v. Davis, 849 P.2d 857,

861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see also

Strickland, 466 U.S. at 690-91 (“[C]ounsel has a duty to make

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reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.”). To establish

ineffective assistance of counsel under the Strickland standard, a

defendant must show that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced her. Strickland,

466 U.S. at 687. An ineffective assistance claim fails if the

defendant is unable to satisfy either the deficient performance or

the prejudice prong of the Strickland standard. Id. at 697.

¶ 15 To establish deficient performance, the defendant must show

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

reasonableness.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

2007) (quoting Strickland, 466 U.S. at 688). When a conviction is

based on a guilty plea, prejudice is established if the defendant

pleads and proves that, but for counsel’s deficient performance, she

“would not have pleaded guilty and would have insisted on going to

trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see People v.

Sifuentes, 2017 COA 48M, ¶ 20. “This is an objective inquiry.”

Corson, ¶ 35. Accordingly, a defendant “must convince the court

that a decision to reject the plea bargain would have been rational

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under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372

(2010).

2. Discussion

¶ 16 Even if we assume that Mitchell’s counsel was deficient in

failing to investigate or retain an expert about the PrivacyShield

application, her petition and supplement failed to allege with

sufficient specificity that, but for counsel’s omissions, she would

have rejected the plea deal and proceeded to trial.

¶ 17 Mitchell claimed that an investigation into the PrivacyShield

application, including consultation with an expert, would have

shown that the version of events she provided to the investigating

police officer — namely, that she decided not to answer a call from

an unknown phone number and that, when she later called the

number back, Silver answered and she immediately hung up —

accurately “reflected how the application worked.”

¶ 18 But Mitchell does not allege what information the investigation

or expert consultation would have revealed, or how that information

could have been used to support her version of events. See

People v. Villanueva, 2016 COA 70, ¶ 67 (A defendant “must do

more than simply allege that other evidence could have aided [her]

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defense; [she] must identify the evidence and demonstrate that it

would have advanced [her] defense.”); People v. Zuniga, 80 P.3d 965,

973 (Colo. App. 2003) (affirming denial of a Crim. P. 35(c) motion

without a hearing where the defendant did not “explain[] what

additional investigation counsel should have done, what the results

of those efforts would have been, and how they would have affected

the outcome of the case”). Instead, Mitchell’s own postconviction

expert concluded that the investigation conducted by the officer

“appears to be adequate” and that Mitchell “provided what appears

to be incorrect information.” Thus, Mitchell has not alleged with

sufficient specificity what information the investigation would have

uncovered and how that information would have advanced her

defense.

¶ 19 And even if an investigation could have shown that Mitchell’s

story to the police officer was plausible, Mitchell did not explain

why that would have mattered, let alone how it would have caused

her to insist on proceeding to trial. See Hill, 474 U.S. at 59.

Mitchell did not allege that the investigation would have

counteracted the evidence uncovered by the officer indicating that

Mitchell actually owned the PrivacyShield phone number and

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attempted to use it to frame Silver. Nor did she explain what

impact, if any, the investigation would have had on the evidence

suggesting that Mitchell also lied to the officer about Silver sending

her threatening emails and attempting to break into her house. Put

differently, Mitchell failed to provide any factual allegations

demonstrating “a reasonable probability that a defendant in [her]

position would have insisted on trial.” Corson, ¶ 43. Accordingly,

Mitchell’s assertion that, had there been an investigation, “she

likely would have received a more favorable offer, or she would not

have accepted the felony plea and would have insisted on going to

trial” was conclusory and did not warrant an evidentiary hearing.

See People v. Delgado, 2019 COA 55, ¶ 8 (“[A] court may deny [a

Crim. P. 35(c)] motion without a hearing . . . if the claims are bare

and conclusory in nature and lack supporting factual allegations.”).

¶ 20 Moreover, we note that the prosecution stipulated to a

community corrections sentence that would run concurrently with

a longer, controlling sentence that Mitchell had already received in

another case. As a result, the plea agreement did not increase the

length of Mitchell’s existing sentence. In contrast, had she chosen

to go to trial, she would have faced up to twelve years in prison if

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convicted of attempt to influence a public servant. See §§ 18-8-306,

18-1.3-401(1)(a)(V.5)(A), (8)(a)(II), C.R.S. 2025. And the court, in its

discretion, could have imposed any sentence consecutively to her

existing sentence. Given the strength of the prosecution’s case and

the disparity in sentence exposure between accepting the plea and

risking convictions at trial, we are unpersuaded that rejecting the

plea agreement and proceeding to trial would have been rational

under the circumstances. Padilla, 559 U.S. at 372; see also

Sifuentes, ¶ 21 (“Various factors should inform a court’s analysis of

whether a decision to reject the guilty plea would have been

rational,” including “the strength of the prosecution’s case” and “the

attractiveness of the plea deal and the risks of going to trial.”).

Consequently, Mitchell was not entitled to an evidentiary hearing on

her ineffective assistance of counsel claim.

C. Failure to Disclose Exculpatory Evidence

¶ 21 Next, Mitchell contends that the prosecution violated her

constitutional due process rights by failing to disclose material

exculpatory evidence, as required by Brady v. Maryland, 373 U.S.

83 (1963). Her claim centers on the prosecution’s alleged failure to

disclose (1) “two USB drives includ[ing] the Aurora Police

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Department case files associated with Ms. Mitchell, and . . . the

forensic exams of Ms. Mitchell’s iPhone and [i]Pad”; and

(2) information that “Silver was pending investigation for

misconduct in relation to his law enforcement duties during the

pendency of this case.”

¶ 22 To establish a Brady violation, a defendant must show that

(1) the prosecution suppressed evidence (2) that is exculpatory or

favorable to the defendant and (3) that is material to the case.

People v. Bueno, 2018 CO 4, ¶ 29. Evidence is considered

exculpatory or favorable under Brady if it has a tendency to

decrease the likelihood of conviction or the severity of the sentence.

Id. at ¶ 31. Evidence is sufficiently material where “there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Id.

at ¶ 32 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id.

¶ 23 Although Mitchell acknowledged that it was her burden to

demonstrate that the suppressed evidence was exculpatory or

favorable to her, both her Rule 35(c) petition and supplement failed

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to make any allegations that the information on the USB drives

could have decreased the likelihood of conviction or the severity of

her sentence. See id. at ¶ 31. She did not discuss the evidence at

all and did not make even conclusory allegations about what it

might have shown or how it could have affected her case.

¶ 24 Similarly, Mitchell did not allege that the investigation into

Silver’s misconduct would have somehow mitigated her likelihood of

guilt. Thus, we agree with the postconviction court that, “[a]t best,

the evidence of Mr. Silver’s disciplinary investigation would allow

[Mitchell] to challenge Mr. Silver’s credibility as a witness.” In other

words, it was nonexculpatory impeachment evidence. And the

prosecution’s failure to disclose impeachment evidence does not

violate a defendant’s due process rights under Brady because

defendants do not have any due process rights to nonexculpatory

impeachment material. Corson, ¶ 31 (citing United States v. Ruiz,

536 U.S. 622, 633 (2002)).

¶ 25 Further, Mitchell did not allege that the USB drive evidence or

impeachment evidence was material. Although she asserted in a

conclusory fashion that “[w]ith the non-discovered evidence in

hand, . . . there exists a reasonable probability that Ms. Mitchell

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would have decided to proceed to trial instead of enter[ing] her

guilty pleas,” she failed to explain why this evidence would have

undermined the case against her and led her to risk a conviction

with a lengthy prison sentence. See Duran, ¶ 9.

¶ 26 Accordingly, Mitchell failed to sufficiently allege a Brady

violation based on the nondisclosure of the USB drives and the

impeachment information about Silver, and the postconviction

court correctly denied the claim without a hearing.

D. Validity of Guilty Plea

¶ 27 Finally, Mitchell contends that her guilty plea was invalid

because it was neither intelligently nor voluntarily made. She

asserts that her decision to plead guilty was (1) not intelligent due

to the ineffectiveness of her plea counsel and (2) not voluntary

because “she had to forgo her right to a jury trial in this case to

receive her concessions, and the Community Corrections sentence

in” her other criminal case.

¶ 28 We have already rejected Mitchell’s claim of ineffective

assistance that underlies her assertion that her plea was not

intelligently made. As we explained, Mitchell did not allege what

information further investigation by counsel would have yielded or

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how it would have affected her decision to plead guilty. Because

Mitchell offered no additional reasons why her decision to plead

guilty was not intelligent, we reject this claim as well.

¶ 29 We turn next to Mitchell’s argument that she was pressured

into accepting a guilty plea to secure the benefits of a plea in a

different case. Pressure alone does not invalidate a guilty plea. See

People v. McCormick, 881 P.2d 423, 427 (Colo. App. 1994)

(explaining that the “desire to accept the certainty or probability of a

lesser penalty rather than face a wider range of possibilities” does

not render a guilty plea invalid). Rather, a plea is invalid when it is

obtained by “actual or threatened physical harm or by mental

coercion overbearing the will of the defendant.” Brady v. United

States, 397 U.S. 742, 750 (1970). And Mitchell did not allege that

anyone threatened her or took any action that overbore her will.

¶ 30 In the plea agreement, Mitchell affirmed that she was entering

her “plea of guilty freely and voluntarily and not as a result of

coercion or undue influence on the part of anyone. There have

been no threats, force, or promises made to [her] to cause [her] to

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enter this plea.”2 While such a representation does not foreclose a

challenge to the validity of a guilty plea, see People v. Morones-

Quinonez, 2015 COA 161, ¶¶ 15-18, it does “carry a strong

presumption of verity,” People v. Canody, 166 P.3d 218, 220 (Colo.

App. 2007) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))

(concluding that the defendant’s declarations “plainly refute[d] [his]

conclusory allegations” that the plea was coerced). Mitchell did not

make any allegations of improper coercion that would overcome her

affirmations in the plea agreement.

¶ 31 Thus, Mitchell did not sufficiently allege that her guilty plea

was invalid, and the postconviction court properly denied her claim

without a hearing.

III. Disposition

¶ 32 The postconviction court’s order is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.

2 The transcript of the providency hearing is not included in the

appellate record, so we presume that it would have supported that
Mitchell’s plea of guilty was voluntary. See People v. Duran, 2015
COA 141, ¶ 12 (“It is the appellant’s responsibility to designate the
record on appeal . . . . The presumption is that material portions
omitted from the record would support the judgment.”).

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