Peo v. Pellouchoud

24CA0144 Peo v Pellouchoud 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0144
Arapahoe County District Court No. 10CR1503
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James K. Pellouchoud,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

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

Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, James K. Pellouchoud, appeals the district court’s

order denying his Crim. P. 35(c) motion without a hearing. We

affirm.

I. Background

¶2 At a party in June 2010, Pellouchoud fired a gun at

partygoers. Following a jury trial, he was convicted of four counts

of attempted first degree murder, two counts of attempted second

degree murder, one count of first degree assault, two counts of first

degree burglary, one count of attempted second degree assault, two

counts of menacing, one count of third degree assault, and two

crime of violence counts.

¶3 During the nearly seven years between his arrest and trial,

Pellouchoud received two competency evaluations at the Colorado

Mental Health Institute at Pueblo (CMHIP). Both evaluations found

that he was (1) legally sane when he committed the crimes and (2)

competent to stand trial. In addition, Pellouchoud was represented

by four different attorneys during those seven years. Three were

private attorneys, and one was appointed by the court; all withdrew

from the case due to trial strategy disagreements with Pellouchoud.

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¶4 At a hearing in November 2016, Pellouchoud, who was then

represented by court-appointed counsel, told the court he had no

faith in his counsel and asked the court to dismiss counsel. The

court found that no conflict existed to justify dismissing counsel

and offered Pellouchoud the choice between proceeding with his

existing counsel or continuing pro se. Pellouchoud opted to go pro

se. After advising Pellouchoud pursuant to People v. Arguello, 772

P.2d 87 (Colo. 1989), the court found that Pellouchoud’s decision to

waive his right to counsel was knowing, intelligent, and voluntary.

Thus, the court allowed him to proceed pro se with his prior

appointed counsel acting as advisory counsel.

¶5 At a subsequent hearing, Pellouchoud indicated that he was

having difficulty preparing for trial. The court explained that

Pellouchoud’s problems were likely a result of his decision to

represent himself and asked him again whether he wanted to

continue to represent himself. Pellouchoud affirmed his desire to

proceed pro se, rather than to be represented by his former court-

appointed attorney.

¶6 Five days before trial, one of Pellouchoud’s previous attorneys

re-entered his appearance and moved to continue the trial. On the

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first day of trial, the court addressed counsel’s continuance motion.

That attorney argued that Pellouchoud was not capable of

representing himself due to his history of medical and mental

health issues, including a traumatic brain injury from being shot

years earlier and post-traumatic stress disorder. Therefore, counsel

argued, the court should reconsider its decision to allow

Pellouchoud to proceed to trial pro se.

¶7 After reviewing the documentation submitted by counsel and

the prior mental health evaluations, the court found that

Pellouchoud was legally competent to represent himself.

Consequently, the court denied the motion to continue. The court

indicated that it based its decision, in part, on its observations of

Pellouchoud throughout the proceedings. It noted that Pellouchoud

had been coherent, thoughtful, and articulate, and had exhibited an

understanding of the proceedings. Further, the court noted that (1)

it gave Pellouchoud a proper Arguello advisement; (2) Pellouchoud

knowingly, intelligently, and voluntarily waived his right to counsel;

and (3) Pellouchoud continuously affirmed his desire to represent

himself.

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¶8 The court then denied the motion to continue the trial to allow

counsel to represent Pellouchoud. It engaged in a detailed analysis

of the case’s lengthy history and addressed each of the factors

necessary to determining whether a continuance should be granted,

as required by People v. Brown, 2014 CO 25, ¶ 24. Ultimately, the

court found no good cause to grant the continuance due to the age

of the case, the numerous continuances previously granted, the

multiple substitutions of counsel when no conflict existed, the

timing of the most recent motion, the victims’ objection to another

continuance, and the court’s view that the latest continuance

motion was just another stalling tactic.

¶9 The court asked counsel if he would be able to proceed to trial

as counsel for Pellouchoud that day. Counsel responded that he

was unable to represent Pellouchoud without a continuance. The

court excused counsel and Pellouchoud proceeded to trial pro se,

with his former public defender providing support as advisory

counsel.

¶ 10 On the fifth day of the trial, Pellouchoud failed to appear in

court, and efforts by advisory counsel, the court, the prosecution,

and the police department to locate him were unsuccessful. The

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court determined that Pellouchoud had voluntarily absented

himself from the trial, and the trial continued in his absence. The

jury found Pellouchoud guilty of the offenses as described above.

He was later apprehended and sentenced to a total of eighty years

in prison.

¶ 11 A division of this court affirmed Pellouchoud’s convictions.

See People v. Pellouchoud, (Colo. App. No. 17CA1698, Feb. 6, 2020)

(not published pursuant to C.A.R. 35(e)). The division rejected

Pellouchoud’s contentions that the district court improperly (1)

denied his request for substitution of court-appointed counsel; (2)

determined that he had validly waived his right to counsel; and (3)

denied his request for a continuance so that he could be

represented by counsel of choice. See id.

¶ 12 In May 2023, Pellouchoud filed a Crim. P. 35(c) motion

through private counsel. Counsel served the motion on the district

attorney but also asked the court to appoint counsel and refer the

postconviction motion to the public defender’s office under Crim. P.

35(c)(3)(V). The postconviction motion asserted that (1)

Pellouchoud’s pretrial, appellate, and Crim. P. 35(b) attorneys each

provided ineffective assistance; (2) the district court violated his

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right to due process when it failed to recognize his incompetency

before and during his trial; and (3) his eighty-year sentence is

unconstitutional.

¶ 13 Two weeks after receiving Pellouchoud’s motion, the district

court ordered the district attorney to respond to the motion.

Contemporaneously, the court denied Pellouchoud’s request to

appoint a public defender for his postconviction proceedings. The

court noted that the language of Crim. P. 35(c)(3)(V) — requiring the

court to refer a case to the public defender’s office when a

defendant’s Crim. P. 35(c) postconviction motion requests

appointment of counsel — was mandatory. However, the court

found that appointing counsel for a defendant whose retained

counsel already filed a postconviction motion would be absurd and

a waste of resources, and that under these circumstances,

Pellouchoud was not entitled to the appointment of counsel.

¶ 14 After receiving the district attorney’s response and

Pellouchoud’s reply, the district court issued a detailed written

order denying each claim raised in the motion and reiterating that

Pellouchoud was not entitled to appointed counsel because he was

already represented by counsel.

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II. Discussion

¶ 15 Pellouchoud contends that the district court erred by denying

(1) his motion to appoint a public defender to represent him in his

postconviction proceeding and (2) his substantive claims of

ineffective assistance of appellate and postconviction counsel. We

disagree.

III. Standard of Review

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

motion without a hearing. People v. Wilson, 397 P.3d 1090, 1094

(Colo. App. 2011), aff’d, 2015 CO 37. We also review

interpretations of the rules of criminal procedure de novo. People v.

Corson, 2016 CO 33, ¶ 44.

IV. Appointment of Counsel Under Crim. P. 35(c)(3)(V)

¶ 17 Pellouchoud first argues that the district court erred by

denying his request to appoint counsel when it did not deny his

motion outright under Crim. P. 35(c)(3)(IV) but instead referred it to

the district attorney’s office for a response under Crim. P.

35(c)(3)(V). We disagree.

¶ 18 Crim. P. 35(c) provides postconviction remedies for defendants

to have a conviction vacated or set aside based on one or more of

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the grounds listed in Crim. P. 35(c)(2). Under Crim. P. 35(c)(3)(IV),

the district court must promptly deny a postconviction motion if the

court concludes that the motion, the record, and the file show that

the defendant is not entitled to relief. See People v. Segura, 2024

CO 70, ¶ 25.

¶ 19 If, however, the district court does not deny the motion under

Crim. P. 35(c)(3)(IV), Crim. P. 35(c)(3)(V) requires the court to take

additional steps — namely, the court must

cause a complete copy of said motion to be
served on the prosecuting attorney if one has
not yet been served by counsel for the
defendant. If the defendant has requested
counsel be appointed in the motion, the court
shall cause a complete copy of said motion to
be served on the Public Defender. . . . Upon
receipt of the response of the Public Defender,
or immediately if no counsel was requested by
the defendant or if the defendant already has
counsel, the court shall direct the prosecution
to respond to the defendant’s claims or request
additional time to respond within 35 days and
the defendant to reply to the prosecution’s
response within 21 days. The prosecution has
no duty to respond until so directed by the
court. Thereafter, the court shall grant a
prompt hearing on the motion unless, based
on the pleadings, the court finds that it is
appropriate to enter a ruling containing
written findings of fact and conclusions of law.

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¶ 20 As with statutory construction, when interpreting a rule of

criminal procedure, we first look to the plain language of the rule,

reading the words and phrases in context and construing the rule

as a whole to give consistent, harmonious, and sensible effect to all

its parts. See People v. Subjack, 2021 CO 10, ¶ 14; see also People

v. Arellano-Avila, 20 P.3d 1191, 1192 (Colo. 2001) (In interpreting a

rule of criminal procedure, “we look to its plain meaning in pari

materia with the other rules.”).

¶ 21 Here, Pellouchoud’s postconviction counsel filed a thorough

postconviction motion and never moved to withdraw. Thus, counsel

continued to represent Pellouchoud while the district court

considered the merits of the postconviction motion.

¶ 22 Arguing that the court was required to forward a copy of his

postconviction motion to the public defender because he requested

appointed counsel, Pellouchoud focuses on the second sentence of

Crim. P. 35(c)(3)(V): “If the defendant has requested counsel be

appointed in the motion, the court shall cause a complete copy of

said motion to be served on the Public Defender.” True, read in

isolation, that sentence seems to require the appointment of

counsel every time a defendant requests counsel in a Crim. P. 35(c)

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motion. However, the remaining portion of Crim. P. 35(c)(3)(V)

recognizes situations in which counsel files a motion on behalf of a

defendant.

¶ 23 Specifically, the immediately preceding sentence directs the

court to send a complete copy of the motion to the prosecuting

attorney “if one has not yet been served by counsel for the

defendant.” Crim. P. 35(c)(3)(V) (emphasis added). The rule further

provides that “[u]pon receipt of the response of the Public Defender,

or immediately if no counsel was requested by the defendant or if

the defendant already has counsel, the court shall direct the

prosecution to respond to the defendant’s claims.” Crim. P.

35(c)(3)(V) (emphasis added). The use of the disjunctive word “or” in

the sentence requiring the court to direct the prosecution to

respond to the defendant’s claims indicates that the rule does not

envision a situation requiring appointment of a public defender

after a motion is filed by private counsel. See Friend v. People, 2018

CO 90, ¶ 16 (the word “or” in statutes generally describes

alternatives).

¶ 24 Thus, when considered as a whole, it appears that the purpose

of the rule is to provide pro se defendants who have at least one

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arguably meritorious postconviction claim with an opportunity to be

represented by counsel. See Segura, ¶ 26; see also Silva v. People,

156 P.3d 1164, 1168 (Colo. 2007) (there exists only a limited

statutory right to postconviction counsel for claims with arguable

merit). Interpreting the rule to require the appointment of counsel

for defendants who have already retained private counsel would be

a waste of resources for the public defender’s office or alternate

defense counsel and would potentially lead to unnecessary delay in

resolving the postconviction motion.

¶ 25 Further, Pellouchoud has not cited any cases, and we are

aware of none, where a Colorado appellate court has held that the

district court was required to refer a postconviction motion to the

public defender when the Crim. P. 35(c) motion was filed by private

counsel. Rather, it appears that the cases addressing Crim. P.

35(c)(3)(V)’s requirement to forward a postconviction motion to the

public defender have involved instances where the defendant filed

the postconviction motion pro se. See Segura, ¶ 7 (holding that

when a defendant files a pro se Crim. P. 35(c) motion that contains

a request for counsel, the district court has two, and only two,

choices: (1) deny the motion in its entirety after reviewing the

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motion, the record, and the file and determining that none of the

claims has arguable merit; or (2) forward a complete copy of the

motion to the public defender after determining that at least one

claim has arguable merit); People v. Chalchi-Sevilla, 2019 COA 75,

¶ 25 (noting that if a defendant’s pro se Crim. P. 35(c) motion

presents at least one potentially meritorious claim, the

postconviction court shall forward a copy of the motion to the

public defender); People v. Higgins, 2017 COA 57, ¶ 15 (holding that

Crim. P. 35(c)(3)(V) requires the court to send a copy of the pro se

postconviction motion to the public defender if it does not deny the

motion under Crim. P. 35(c)(3)(IV)).

¶ 26 Thus, when read in context, the rule’s requirement that a

court forward a copy of the motion to the public defender is only

triggered when the defendant has filed the motion pro se.

Consequently, the district court did not err when it denied

Pellouchoud’s request for counsel and ruled on the postconviction

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motion filed by counsel without forwarding a copy to the public

defender’s office.1

V. Ineffective Assistance of Counsel Claims

¶ 27 Pellouchoud next contends that the district court erred by

denying his claims that his appellate and postconviction counsel

were ineffective. We are not persuaded.

A. Failure to Argue Right to Trial Counsel

¶ 28 For the first time on appeal, Pellouchoud asserts that he

received ineffective assistance from his appellate counsel because

counsel failed to argue on direct appeal that the district court erred

by not allowing him to reassert his right to counsel at his trial.

Pellouchoud acknowledges that he did not raise this claim in his

postconviction motion. Because we do not consider issues not

raised to the district court in a motion for postconviction relief, we

decline to consider it. See People v. Cali, 2020 CO 20, ¶ 34.

¶ 29 Nor are we persuaded by Pellouchoud’s assertions that his

postconviction counsel was ineffective for failing to raise a claim

1 Given our disposition, we need not address Pellouchoud’s “plain

error” argument that denial of counsel violated his right to due
process.

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that his appellate counsel was ineffective and that he can assert a

claim of ineffective assistance of postconviction counsel for the first

time in this appeal. Ineffective assistance of postconviction counsel

claims cannot be brought in an appeal of the postconviction

proceeding in which postconviction counsel was allegedly

ineffective. Rather, such claims are properly raised in a separate

Crim. P. 35(c) motion upon the completion of the postconviction

proceedings. See People v. Clouse, 74 P.3d 336, 341 (Colo. App.

2002).

B. Failure to Raise Competency to Represent Himself

¶ 30 Pellouchoud next contends that his appellate counsel was

ineffective for failing to raise claims that (1) he lacked capacity to

represent himself at trial and (2) the district court erred by failing to

sua sponte raise the issue of his competency to represent himself.

We disagree.

1. Applicable Law

¶ 31 To prevail on an ineffective assistance of counsel claim, a

defendant must establish that (1) counsel’s performance was

deficient and (2) the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ardolino v.

14
People, 69 P.3d 73, 76 (Colo. 2003). The same requirements apply

to a claim of ineffective assistance of appellate counsel. People v.

Long, 126 P.3d 284, 286 (Colo. App. 2005).

¶ 32 Yet, appellate counsel is not required to raise every

nonfrivolous issue a defendant wants to raise. People v. Trujillo,

169 P.3d 235, 238 (Colo. App. 2007). Appellate counsel’s choice of

which issues to raise is a strategic decision and is presumed

effective. Id. Thus, the prejudice component of a claim for

ineffective assistance of appellate counsel requires a defendant to

establish that counsel failed to present an issue that is clearly

stronger than the issues actually presented on appeal. Long, 126

P.3d at 286.

¶ 33 The standard for determining competency to waive the right to

counsel and to represent oneself is the same as the standard for

competency to stand trial. People v. Davis, 2015 CO 36M, ¶ 16.

Thus, “a defendant is competent to waive the right to counsel if he

has ‘sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding[ ] and . . . has a

rational [and a] factual understanding of the proceedings against

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him.’” Id. (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)).

¶ 34 If the trial court has a “reason to believe” that the defendant is

incompetent to proceed, it must suspend the proceedings and

determine competency. § 16-8.5-102(2)(a), C.R.S. 2025. Because

the trial court is in the best position to observe the defendant’s

general demeanor, we will uphold its determination of competency

absent an abuse of discretion. See People v. Stephenson, 165 P.3d

860, 866 (Colo. App. 2007). A defendant’s general demeanor and

interactions with defense counsel and the court during court

appearances are crucial to assess whether competency may be an

issue. Blehm v. People, 817 P.2d 988, 994 (Colo. 1991).

2. Analysis

¶ 35 The crux of this ineffective assistance of appellate counsel

claim is whether there was evidence that Pellouchoud was

incompetent to represent himself at trial such that the district court

erred by not sua sponte stopping him from doing so.

¶ 36 In its written order, the district court rejected this claim

because, even assuming counsel performed deficiently by not

raising this issue in the direct appeal, Pellouchoud did not establish

16
prejudice. In reaching that conclusion, the court noted that it had,

on multiple occasions, found that Pellouchoud was competent to

represent himself. Thus, the record did not support the conclusion

that the court had a “reason to believe” that Pellouchoud was

incompetent. Consequently, even if appellate counsel had raised

this issue on appeal, there was no evidence to suggest that the

claim was stronger than the issues that were raised.

¶ 37 We agree with the district court. Because the record does not

support an assertion that the court had a “reason to believe”

Pellouchoud was incapable of representing himself, Pellouchoud

failed to establish that he was prejudiced by appellate counsel’s

alleged ineffective assistance on this claim.

¶ 38 On the first day of trial, when counsel sought a continuance to

represent Pellouchoud, counsel specifically indicated that he was

not attempting to raise a competency issue. And the district court,

after reviewing the medical records submitted by counsel, found

that Pellouchoud was legally competent to represent himself.

¶ 39 On the second day of trial, after hearing Pellouchoud explain

symptoms he was experiencing — including paranoia and dizziness

— and his inability to get an appointment with his doctor, the

17
court, out of an abundance of caution, continued the trial until the

next day and allowed Pellouchoud to go to his doctor to address his

medical concerns. Before continuing the trial, however, the court

recounted how, over the past six years, Pellouchoud had engaged in

gamesmanship by hiring and firing attorneys and complaining of

medical problems. Specifically, the court stated:

I have no doubt, Mr. Pellouchoud, that this
event is stressful. But this is the decision that
you made. You have been examined twice by
CMHIP and found to be competent on each of
those occasions. There is no indication that
the Court has seen that you are incompetent
now . . . . You have participated in the
proceedings, you have answered my questions
appropriately, you have asked questions that
are appropriate, you have participated in the
case. There is absolutely no evidence that you
are not competent to proceed to trial, nor that
you are not competent to proceed representing
yourself, and I have great concerns about your
continuing efforts to prevent this case from
proceeding to trial.

(Emphasis added.)

¶ 40 The district court was clearly aware that Pellouchoud’s ability

to represent himself might be an issue and addressed it multiple

times, each time concluding that he was competent to proceed pro

18
se. Thus, the district court did not err by denying his ineffective

assistance of appellate counsel claim.

¶ 41 Nevertheless, Pellouchoud argues that his absence from the

final day of trial due to a mental breakdown demonstrates that he

was not competent to represent himself. We are not persuaded.

¶ 42 There is no evidence in the record to support the claim that

Pellouchoud’s failure to appear on the last day of trial was based on

a mental breakdown. To the contrary, the court, advisory counsel,

the district attorney, and the police department all attempted to

locate him, including checking various hospitals to see if he was

admitted, without success. Thus, we reject the assertion that

Pellouchoud’s absence from the last day of trial demonstrated his

incompetence such that the court should have appointed him

counsel.

VI. Claims Not Reasserted on Appeal

¶ 43 Pellouchoud raised additional claims in his postconviction

motion that he does not reassert on appeal. We deem those claims

abandoned and do not address them. People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007) (claims raised in a postconviction

motion but not reasserted on appeal are deemed abandoned).

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VII. Disposition

¶ 44 The order is affirmed.

JUDGE BROWN and JUDGE MEIRINK concur.

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