Peo v. Myers

24CA0295 Peo v Myers 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0295
Jefferson County District Court No. 16CR1251
Honorable Ryan P. Loewer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Zachary Vincent Myers,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 9, 2025

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Zachary Vincent Myers, Pro Se
¶1 Defendant, Zachary Vincent Myers, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion. We affirm.

I. Background

¶2 In 2016, Myers was charged with numerous offenses related to

his sexual assault of a fourteen-year-old victim and his repeated

contact with her over social media and text. A jury found Myers

guilty of sexual assault (overcoming the victim’s will), sexual assault

on a child, enticement of a child, stalking (credible threat), stalking

(emotional distress), sexual exploitation of a child, internet sexual

exploitation of a child, third degree assault, and false

imprisonment. The district court sentenced him to a controlling

indeterminate term of eighteen years to life in prison.

¶3 Myers directly appealed his conviction, and a division of this

court affirmed. People v. Myers, (Colo. App. No. 18CA0484, June

24, 2021) (not published pursuant to C.A.R. 35(e)) (Myers I). As

relevant here, the division rejected Myers’s contentions that the

district court erred by denying (1) his motion to suppress

statements he made to the police during a custodial interrogation

and (2) his motion for substitute counsel. Id. at ¶¶ 13, 25, 81. The

mandate was issued on December 7, 2021.

1
¶4 In January 2023, Myers timely filed a Crim. P. 35(c) motion for

postconviction relief. He asserted claims of (1) “police misconduct”;

(2) “judicial misconduct”; (3) ineffective assistance of trial counsel;

and (4) cumulative error stemming from ineffective assistance of

trial counsel. He also requested a proportionality review of his

sentence, asserting that he was “sentenced under misinformation.”

And he asked the court to appoint postconviction counsel. In a

detailed order, the postconviction court denied Myers’s motion

without conducting a hearing.

II. Discussion

¶5 Myers contends that the postconviction court erred by denying

his Crim. P. 35(c) motion without a hearing.1 We disagree.

1 We broadly construe pleadings filed by unrepresented litigants “to

ensure that they are not denied review of important issues because
of their inability to articulate their argument like a lawyer.” Jones
v. Williams, 2019 CO 61, ¶ 5. But we will not rewrite an
unrepresented litigant’s pleadings or act as their advocate. People
v. Cali, 2020 CO 20, ¶ 34. And we will not consider issues that
were not raised in a motion for postconviction relief. Id.; see
DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not
raised before the district court in a motion for postconviction relief
will not be considered on appeal of the denial of that motion.”).

2
A. Standard of Review

¶6 We review de novo the denial of a Crim. P. 35(c) motion

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

need not provide evidentiary support for the allegations in such a

motion but must assert facts that, if true, would provide a basis for

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

Crim. P. 35(c) motion may be denied without an evidentiary hearing

where the motion, files, and record clearly establish that the

defendant’s allegations are without merit and do not warrant relief.

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). A court also may

summarily deny a Crim. P. 35(c) motion if the defendant’s

allegations are conclusory, vague, or lacking in detail. People v.

Chipman, 2015 COA 142, ¶ 25.

B. “Police Misconduct” and “Judicial Misconduct” Claims

¶7 In his Crim. P. 35(c) motion, Myers argued that the police

committed misconduct when they (1) seized his cell phone in

violation of his Fourth Amendment rights and (2) interrogated him

without a valid waiver of his Miranda rights. He also argued that

the district court engaged in misconduct by (1) not suppressing the

evidence recovered from the unconstitutional search of his cell

3
phone; (2) not suppressing the statements he made during the

interrogation; and (3) denying the appointment of substitute

counsel.2

1. Cell Phone Seizure Claim

¶8 The postconviction court denied Myers’s cell phone seizure

claim (framed as “police misconduct” and as “judicial misconduct”)

as successive because it had been raised and resolved in the direct

appeal of a separate but related case, Weld County Case No.

16CR511. See People v. Myers, (Colo. App. No. 18CA1521, Aug. 4,

2022) (not published pursuant to C.A.R. 35(e)) (Myers II). In that

appeal, the division rejected Myers’s claim that the same seizure of

his cell phone violated his Fourth Amendment rights. See id. at

¶¶ 29-39. Evidence leading to Myers’s arrest in the underlying case

was discovered during a search of the seized cell phone.

2 Myers also alleged that the district court engaged in misconduct

by responding to a juror question during deliberations regarding his
knowledge of the victim’s age and by admitting certain testimony
from the victim “that she knew about the defendant and the story
from the news.” Because Myers does not raise these issues on
appeal, we deem them abandoned. See People v. Hunsaker, 2020
COA 48, ¶ 10, aff’d, 2021 CO 83.

4
¶9 On appeal, Myers asserts that the postconviction court

violated Crim. P. 35(c)(3)(IV) when it relied on the Weld County

appeal to deny his cell phone seizure claim as successive.3 Under

Crim. P. 35(c)(3)(IV), “[i]f 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, the court shall enter written findings of fact and

conclusions of law in denying the motion.” Myers argues that the

phrase “the motion and the files and record of the case” limits the

materials a court can review to the motion, files, and record in the

underlying case.

¶ 10 But Crim. P. 35(c)(3)(VI) states that a court must deny any

claim as successive “that was raised and resolved in a prior

appeal . . . on behalf of the same defendant.” Whether Myers’s

Fourth Amendment rights were violated by the police’s seizure of

3 He also argues that the postconviction court violated Crim. P.

35(c)(3)(IV) because it cited an appeal involving another defendant
with the same last name: case number 16CA1153. See People v.
Myers, (Colo. App. No. 16CA1153, Mar. 29, 2018) (not published
pursuant to C.A.R. 35(e)). Although the postconviction court cited
16CA1153, it undoubtedly referred to the claims Myers raised in
Myers I and in the Weld County appeal. The postconviction court’s
citation to 16CA1153 appears to be a mistake; the court did not
substantively rely on 16CA1153 in denying Myers’s motion.

5
his cell phone was an issue that was raised and resolved in the

Weld County appeal, “a prior appeal . . . on behalf of the same

defendant.” Thus, we perceive no error in the postconviction court’s

denial of this “police misconduct” claim as successive because it

was raised and resolved in the Weld County appeal. And because

Myers’s argument that the district court erred by not suppressing

the evidence from the search of the cell phone presumably was

based on the alleged Fourth Amendment violation (Myers

articulated no other basis for this claim in his Crim. P. 35(c)

motion), we likewise perceive no error in the postconviction court’s

denial of this “judicial misconduct” claim on the same basis.

¶ 11 But even if the postconviction court erred by relying on the

Weld County appeal to conclude that the cell phone seizure claim

was successive, any such error was harmless. Whether framed as

“police misconduct” or “judicial misconduct,” the claim was also

successive because it could have been raised in Myers I. See Crim.

P. 35(c)(3)(VII) (“The court shall deny any claim that could have

been presented in an appeal previously brought . . . .”). We affirm

the court’s order on this alternative basis as well. See People v.

Manyik, 2016 COA 42, ¶ 69 (“We may affirm the court’s ruling on

6
any ground supported by the record, even if that ground was not

articulated or considered by the court.”).

2. Miranda Waiver Claim

¶ 12 The postconviction court denied Myers’s Miranda waiver claim

(framed as “police misconduct” and “judicial misconduct”) as

successive because it was raised and resolved in Myers I. Indeed, in

Myers I, the division rejected Myers’s claim that the district court

erred by not suppressing his statements to the police during the

custodial interrogation because his Miranda waiver was not

knowing, voluntary, and intelligent. Myers I, ¶¶ 25-48. As a result,

to the extent Myers contends that the postconviction court erred by

denying this claim on this basis, we disagree. See Crim. P.

35(c)(3)(VI).

3. Substitute Counsel Claim

¶ 13 The postconviction court rejected Myers’s substitute counsel

(framed as “judicial misconduct”) claim as successive because it

was raised and resolved in Myers I. Indeed, the Myers I division

denied Myers’s claim that the district court erred by denying his

motion for substitute counsel after conducting a conflict hearing

before an independent judge. Myers I, ¶¶ 81-97. Thus, to the

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extent Myers contends that the postconviction court erred by

denying this claim on this basis, we disagree. See Crim. P.

35(c)(3)(VI).

C. Ineffective Assistance of Counsel Claims

¶ 14 Myers contends that the postconviction court erred by

summarily denying his claims of ineffective assistance of counsel.

First, Myers argues that the postconviction court erred by denying

his cell phone seizure, Miranda waiver, and substitute counsel

claims as successive because they were in fact ineffective assistance

of counsel claims, which were being raised for the first time in his

Crim. P. 35(c) motion. Second, Myers argues that the

postconviction court erred by denying his ineffective assistance

claims (and the associated cumulative error claim) on the merits.

We disagree.

1. Applicable Law on Ineffective Assistance of Counsel

¶ 15 A criminal defendant is constitutionally entitled to effective

assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.

art. II, § 16; see Ardolino, 69 P.3d at 76. To succeed on a claim of

ineffective assistance of counsel, a defendant must show that

(1) counsel’s performance was deficient, in that it fell below the

8
minimum standard guaranteed by the Sixth Amendment; and

(2) the defendant was prejudiced, in that there is a reasonable

probability that, but for counsel’s errors, the result of the

proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). “Only where both the performance prong and

the prejudice prong have been proven will a defendant be entitled to

postconviction relief because of the ineffective assistance of

counsel.” Dunlap, 173 P.3d at 1063.

2. Reformulated Claims

¶ 16 At the end of the “police misconduct” section of his Crim. P.

35(c) motion — which included the cell phone seizure and Miranda

waiver claims — Myers asserted that “[r]ecords were available at

[the] time of trial, but counsel failed to investigate[,] and this

violated defendant’s Sixth Amendment right to effective assistance

of counsel.” He also alleged that “[d]ue to incompetency, specifically

a [traumatic brain injury (TBI)] and the psych meds defendant was

on[,] [the detective] took advantage of defendant’s state of mind,”

which violated Miranda. He wrote that “[t]rial counsel’s failure to

investigate this fact prejudiced defendant throughout pre-trial and

9
trial proceedings and ultimately violated his rights guaranteed by

the United States Constitution.” And at the end of the “judicial

misconduct” section of his motion — which included the cell phone

seizure, Miranda waiver, and substitute counsel claims — Myers

asserted that “[d]efense counsel demonstrated trial ineffectiveness

by failing to object and did not know the law.”

¶ 17 In the “ineffective counsel” section of his Crim. P. 35(c) motion,

Myers also alleged that

• he told trial counsel he was diagnosed with a TBI, had

mental health concerns, and had physical injuries, and

trial counsel “did not investigate this claim”;

• trial counsel “neglected their duties” when Myers told

them he was “confused and did not understand what was

going on” because of his TBI; and

• trial counsel “rarely visited” him, did not answer any of

his questions, and did not inform him what they were

planning for his defense.

¶ 18 Presumably based on these statements, Myers contends that

the postconviction court erred by not treating his cell phone seizure,

Miranda waiver, and substitute counsel claims as ineffective

10
assistance of counsel claims. Even if the court should have

recognized these claims as ineffective assistance claims, we

conclude that reversal is not warranted. See Manyik, ¶ 69. We

reach this conclusion for two reasons.

¶ 19 First, these claims of ineffective assistance of counsel are

conclusory, vague, and lack detail; the postconviction court could

have denied them on that basis. See Chipman, ¶ 25. In his Crim.

P. 35(c) motion, Myers did not explain what “records” counsel failed

to investigate that would have informed his cell phone seizure or

Miranda waiver claims. He did not explain how the detective

interrogating him “took advantage” of him in light of his TBI and

medications or what information counsel’s investigation into his

mental and physical impairments would have yielded. He did not

explain what objections trial counsel should have made or what law

trial counsel should have argued with respect to the cell phone

seizure, Miranda waiver, or substitute counsel claims. And he did

not explain how any of trial counsel’s purported failures would have

altered the outcome of the proceeding. See People v. Osorio, 170

P.3d 796, 800 (Colo. App. 2007) (defendant must provide enough

11
detail “to explain why these actions were deficient [and] to place

them in context”).

¶ 20 On appeal, Myers asserts that the district court erroneously

applied the inevitable discovery exception to the warrant

requirement and faults trial counsel for not arguing the proper

standards. He also provides details about what he claims was

coercive conduct by the detective conducting his interrogation and

argues that trial counsel was “grossly ineffective” for failing to

present those details to the district court. And he argues that trial

counsel “should have owned up to the fact they were not adequately

keeping [Myers] informed and they were not communicating with

[Myers], even at a minimally acceptable level,” citing the Colorado

Rules of Professional Conduct. But because Myers did not make

these arguments in his postconviction motion, we will not consider

them now. See Cali, ¶ 34.

¶ 21 Second, because these claims are “merely a reformulation” of

Myers’s direct appeal claims, they are successive under Crim. P.

35(c)(3)(VI). People v. Versteeg, 165 P.3d 760, 768 (Colo. App.

2006), overruled on other grounds by People v. Crabtree, 2024 CO

40M; see People v. Munkus, 60 P.3d 767, 770 (Colo. App. 2002)

12
(concluding that the defendant’s “reformulated claims” were

successive). Even “an argument raised under Rule 35 which does

not precisely duplicate an issue raised on appeal will be precluded if

its review ‘would be nothing more than a second appeal addressing

the same issues on some recently contrived constitutional theory.’”

People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (quoting People

v. Bastardo, 646 P.2d 382, 383 (Colo. 1982)); see also Versteeg, 165

P.3d at 768 (“A defendant may not use Crim. P. 35 to relitigate an

issue that was resolved on direct appeal.”).

¶ 22 To the extent Myers argues that the division’s resolution of the

cell phone seizure claim in the Weld County appeal cannot be

considered, we have already rejected that argument. In that case,

the division explained that the district court denied Myers’s motion

to suppress evidence stemming from the seizure of his cell phone on

several grounds, including under the inevitable discovery doctrine

and the exigent circumstances exception. Myers II, ¶ 36. The

division concluded that the police lawfully seized Myers’s cell phone

pursuant to the exigent circumstances exception to the warrant

requirement (not under the inevitable discovery doctrine) and

affirmed the district court’s ruling on that basis. Id. at ¶¶ 37, 39.

13
In his postconviction motion, Myers failed to allege anything trial

counsel did or did not do that would have affected the division’s

resolution of this claim. Without such allegations, Myers’s

postconviction claim simply rehashed his direct appeal claim, and

was successive.

¶ 23 To the extent Myers claims that trial counsel should have

argued that the detective conducting his interrogation “took

advantage” of him because of his TBI, the division in Myers I

considered and rejected this claim. The division noted that Myers

had “mentioned to the detective that months earlier, a light fixture

had fallen on his head, causing a mild concussion, and that he was

seeing a ‘brain coach.’” Myers I, ¶ 18. It considered Myers’s claim

that his head injury prevented him from knowingly or intelligently

waiving his Miranda rights. Id. at ¶ 40. And it considered his claim

that the detective engaged in coercive conduct, rendering his

Miranda waiver involuntary. Id. at ¶¶ 25, 28, 36-37. After

reviewing the interrogation video de novo, the division concluded

that Myers’s Miranda waiver was knowing, voluntary, and

intelligent. Id. at ¶ 32.

14
¶ 24 In his postconviction motion, Myers did not explain how trial

counsel’s alleged failure to investigate and present additional

evidence and argument relating to his TBI, medications, or mental

state would have altered the conclusion reached by the district

court or the Myers I division. Because these issues were addressed

on direct appeal, Myers’s postconviction claim merely sought a

second review. See Rodriguez, 914 P.2d at 249.

¶ 25 To the extent Myers argues that trial counsel did not

adequately communicate with him, this claim simply rehashes his

direct appeal claim, which the Myers I division rejected. See Myers

I, ¶¶ 81-97. As the division explained, Myers raised his concerns

about representation with the district court, including that counsel

was not spending enough time on his case. Id. at ¶ 89. In affirming

the district court’s denial of the motion for substitute counsel, the

division explained, among other things, that “Myers never alleged

there had been a complete breakdown in communication between

him and his public defenders.” Id. at ¶ 95. Myers’s postconviction

claim seeks to relitigate that issue. See Versteeg, 165 P.3d at 768.

15
3. Failure to Investigate

¶ 26 Myers raised several other ineffective assistance of counsel

claims in his Crim. P. 35(c) motion. On appeal, in addition to the

claims we have already addressed, Myers focuses on his claim that

trial counsel was ineffective for failing to investigate the park where

the incident occurred, how Myers found the victim on social media,

and how Myers knew the precise whereabouts of the victim on the

day of the incident.4

¶ 27 But Myers did not allege prejudice resulting from trial

counsel’s allegedly deficient investigation. He did not explain what

counsel would have found had they investigated these issues or

how that unspecified information would have altered the outcome of

the case. And we decline to consider Myers’s attempts to expand on

this claim on appeal by providing additional detail and alleging

prejudice in his opening brief. See Cali, ¶ 34; see also Rodriguez,

4 Myers also alleged that trial counsel was ineffective for (1) advising

him to waive his speedy trial rights; (2) advising him not to testify
on his own behalf; (3) failing to inform him of his option to have a
bench trial; and (4) failing to object to the district court’s response
to a jury question during deliberations. Because Myers does not
address these claims on appeal, we deem them abandoned. See
Hunsaker, ¶ 20.

16
914 P.2d at 251 (rejecting the defendant’s “attempts to use his brief

on . . . appeal to fortify a number of issues inadequately raised or

supported by his [postconviction] motion”). Because Myers failed to

demonstrate that, but for counsel’s allegedly deficient performance,

the outcome of the proceedings would have been different, the

postconviction court properly denied this ineffective assistance of

counsel claim. See People v. Smith, 2017 COA 12, ¶ 26 (affirming

the summary denial of an ineffective assistance claim because,

among other reasons, the defendant “fail[ed] to adequately allege

the required prejudice”); People v. Romero, 2015 COA 7, ¶ 39

(affirming the summary denial of an ineffective assistance claim

because the defendant “failed to allege facts demonstrating

prejudice”).

4. Cumulative Error

¶ 28 In its order denying Myers’s motion, the postconviction court

rejected his claim that the cumulative effect of trial counsel’s

allegedly deficient performance required reversal. Even assuming

that the cumulative error doctrine applies to claims of ineffective

assistance of counsel, a conclusion we do not reach, we have

neither assumed nor concluded that any error occurred. Thus, we

17
affirm the court’s rejection of this claim. See People v. Shanks,

2019 COA 160, ¶ 76 (for the cumulative error doctrine to apply,

numerous errors must have been committed, not merely alleged).

D. Unconstitutional Sentence

¶ 29 Finally, in his Crim. P. 35(c) motion, Myers argued that he

“was sentenced under misinformation” in violation of United States

v. Tucker, 404 U.S. 443 (1972).5 The postconviction court denied

this claim, concluding that there was nothing in “the record utilized

for sentencing in this case or supplied by [Myers]” that was

“materially untrue.”

¶ 30 “Due process precludes sentencing a defendant based on

‘misinformation of constitutional magnitude.’” People v. Tuffo, 209

P.3d 1226, 1231 (Colo. App. 2009) (quoting Tucker, 404 U.S. at

447). In other words, “due process requires that sentencing

determinations be based on reliable evidence, not speculation or

unfounded allegations.” Id. (quoting United States v. England, 555

F.3d 616, 622 (7th Cir. 2009)).

5 Myers also requested a proportionality review, which the

postconviction court conducted. Because he does not reassert a
challenge to the proportionality of his sentence on appeal, he has
abandoned it. See Hunsaker, ¶ 20.

18
¶ 31 In his postconviction motion, Myers did not specify what

“misinformation” the district court relied on for sentencing, let alone

identify “misinformation of constitutional magnitude.” Id. Because

this allegation was vague, conclusory, and lacking detail, see

Chipman, ¶ 25, we affirm the postconviction court’s denial of this

claim on a different ground, see Manyik, ¶ 69. In so doing, we

again reject Myers’s attempt to expand upon this claim in his

opening brief by arguing that the district court should have been

presented with evidence of his TBI and medications. See Rodriguez,

914 P.2d at 251. And to the extent that Myers tries to raise a new

ineffective assistance of counsel claim related to sentencing, we will

not consider it. See Cali, ¶ 34.

E. Additional and Abandoned Claims

¶ 32 To the extent Myers raises any additional issues on appeal

that he did not raise in his Crim. P. 35(c) motion, we decline to

address them. See id. And to the extent Myers failed to raise on

appeal any issues he raised in his Crim. P. 35(c) motion, he has

abandoned those claims. See People v. Hunsaker, 2020 COA 48,

¶ 10, aff’d, 2021 CO 83.

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III. Disposition

¶ 33 The order is affirmed.

JUDGE FOX and JUDGE MEIRINK concur.

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