Peo v. Williams

23CA0392 Peo v Williams 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0392
City and County of Denver District Court No. 15CR5126
Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wenston Williams,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Gomez and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 11, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant
¶1 Defendant, Wenston Williams, appeals the district court’s

order denying his Crim. P. 35(c) petition for postconviction relief

without an evidentiary hearing. We affirm the court’s order in part,

reverse it in part, and remand the case with directions.

I. Background

¶2 A jury convicted Williams of aggravated robbery and second

degree assault. The trial court adjudicated him a habitual criminal

and sentenced him to sixty-four years in the custody of the

Department of Corrections (DOC), concurrently on each count,

followed by five years of mandatory parole.

¶3 Williams directly appealed his conviction and sentence, and a

division of this court affirmed the judgment of conviction, reversed

the sentence, and remanded with directions to the district court to

impose a new sentence and to correct the mittimus. People v.

Williams, 2019 COA 32, ¶ 3. Specifically, the division reversed the

district court’s adjudication of Williams as a habitual criminal. Id.

at ¶ 48. On remand, the district court resentenced Williams to

twenty-four years in the custody of the DOC, concurrently on each

count, followed by three years of mandatory parole.

1
¶4 Thereafter, Williams timely filed a pro se petition for

postconviction relief under Crim. P. 35(c) asserting twelve claims.

The postconviction court appointed counsel, who filed a supplement

to Williams’s pro se petition. In the supplemental petition, Williams

asserted seven ineffective assistance of counsel claims. He also

included a report from a fingerprint comparison expert. The People

responded, and Williams replied. In his reply, Williams included a

report from an eyewitness identification expert.

¶5 In a detailed written order, the postconviction court denied

Williams’s Crim. P. 35(c) petition without a hearing, concluding that

his arguments lacked merit.

II. Analysis

¶6 On appeal, Williams contends that the postconviction court

erred in denying five of his ineffective assistance of trial counsel

claims without a hearing. Specifically, he contends that he’s

entitled to a hearing on his claims that trial counsel (1) failed to

conduct an adequate pretrial investigation; (2) failed to consult with

and call at trial a fingerprint analysis expert; (3) failed to adequately

challenge the photo lineup, including by failing to consult with and

call at trial an identification expert; (4) failed to withdraw as

2
Williams’s counsel and to fully inform the trial court about the

breakdown in communication between him and Williams; and

(5) gave improper advice to Williams regarding waiving his speedy

trial right and took actions inconsistent with protecting that right.

¶7 We conclude that only Williams’s first claim warrants an

evidentiary hearing, so we reverse in part.

A. Applicable Law and Standard of Review

¶8 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). To succeed on an ineffective assistance of counsel

claim, a defendant must establish that (1) counsel’s performance

was deficient, meaning it fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defendant, meaning that there is a reasonable probability that,

but for counsel’s deficient performance, the result of the proceeding

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

687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.

2007).

¶9 Furthermore, “[c]ounsel has a duty to make reasonable

investigations.” People v. Newmiller, 2014 COA 84, ¶ 45 (citing

3
Strickland, 466 U.S. at 691). “A reasonable investigation means one

that is ‘sufficient to reveal potential defenses and the facts relevant

to guilt.’” Id. (quoting Davis v. People, 871 P.2d 769, 773 (Colo.

1994)).

¶ 10 If a defendant alleges facts in his Crim. P. 35(c) petition that, if

true, entitle him to postconviction relief, the claims sufficiently

pleaded must proceed to an evidentiary hearing. People v. Joslin,

2018 COA 24, ¶ 4 (citing Crim. P. 35(c)(3)(IV)). On the other hand,

“if the motion, the files, and the record clearly establish that the

defendant is not entitled to relief,” a Crim. P. 35(c) petition may be

denied without a hearing. People v. DiGuglielmo, 33 P.3d 1248,

1251 (Colo. App. 2001).

¶ 11 An inquiry into either Strickland prong presents a mixed

question of law and fact. People v. Sifuentes, 2017 COA 48M, ¶ 16.

But whether a Crim. P. 35(c) petition sufficiently states a claim for

relief and must proceed to an evidentiary hearing is a legal

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

Accordingly, we review a postconviction court’s denial of a Crim. P.

35(c) petition without a hearing de novo. People v. Wilson, 397 P.3d

4
1090, 1094 (Colo. App. 2011) (citing Long, 126 P.3d at 286), aff’d,

2015 CO 37.

B. Failure to Conduct an Effective Pretrial Investigation

¶ 12 First, Williams argues that the postconviction court erred

when it denied his claim that his trial counsel was ineffective by

failing to conduct an adequate pretrial investigation. We agree that

this claim should have proceeded to an evidentiary hearing.

1. Additional Facts

¶ 13 In Williams’s first ineffective assistance of counsel claim, he

asserts that trial counsel generally failed to conduct an adequate

pretrial investigation. Williams includes in this claim that his trial

counsel failed to investigate Williams’s alibi defense.

¶ 14 In both his briefing to the postconviction court and on appeal,

Williams argues that his contentious relationship with his trial

counsel led to a deficient pretrial investigation. Specifically, in his

supplemental petition, Williams argues that his trial counsel didn’t

have a “cohesive defense strategy at trial” because counsel didn’t

meet with Williams enough before trial.

¶ 15 The primary disputed issue at trial was identity. The

prosecution’s theory focused on the victim’s and co-defendant’s

5
identification of Williams as the assailant. In turn, Williams’s

counsel attacked the victim’s and co-defendant’s credibility and the

reliability of their identifications of Williams, arguing that it wasn’t

Williams who robbed and assaulted the victim.

¶ 16 The charged offense occurred late at night on December 31,

2014. According to emails between Williams and his trial counsel

sent in March 2016, Williams and his counsel discussed his

potential alibi defense. Around that time, Williams emailed his

counsel, “Hey Jason I got it mixed up[.] I did not go to my ex-wife’s

house then[;] I went this past New Year’s.” Counsel responded, “I’m

hoping you can remember where you were or what you were doing

New Years 2014. Let me know as soon as you can.”

¶ 17 Williams and the prosecution disagree about when Williams

and his trial counsel next spoke about his alibi. In his

supplemental petition, Williams averred that he told his trial

counsel that he was at Glenn Goodson’s boxing gym on December

31, 2014, the night in question. He explained that Goodson hosts a

New Year’s Eve party every year and that he was present at the

party in 2014 because he worked at the gym. And in his

supplemental petition, Williams asserted that counsel didn’t

6
interview or subpoena Goodson (thus implying that he had relayed

the information about Goodson to trial counsel sometime before the

morning of trial) and that he suffered prejudice at trial due to

counsel’s failure to investigate Goodson as an alibi witness who

could testify regarding Williams’s whereabouts on New Year’s Eve

2014. Specifically, Williams averred that “Goodson would say

that . . . Williams was part of the gym’s staff and was at the New

Year’s Eve party on December 31, 2014.”

¶ 18 But trial counsel told a different story to the trial court in

September 2016 on the morning of the first day of trial. That

morning, counsel requested a hearing under People v. Bergerud,

223 P.3d 686 (Colo. 2010), to explain to the trial court the conflict

between himself and Williams. During that hearing, counsel

requested to withdraw as Williams’s counsel due to a breakdown in

communication between them.

¶ 19 At the Bergerud hearing, trial counsel told the trial court that

he was concerned about his ability to effectively represent Williams

at trial because Williams had just raised an alibi defense with him

that counsel hadn’t yet investigated. Counsel explained,

7
I think Mr. Williams is representing a defense
of alibi, which was not — we didn’t
communicate, and therefore those issues
weren’t addressed, and that’s my — that’s a
big concern of mine, because that is — goes
beyond just trial strategy, and goes into the
ability to provide an adequate defense for Mr.
Williams.

¶ 20 Trial counsel noted that the delay in getting this information

from Williams was the “direct result of the fact that we . . . do not

communicate.” The trial court then asked trial counsel when

Williams had first raised the alibi defense issue with him. Counsel

responded, “[W]e talked about it today.”

¶ 21 On appeal, the People contend that the record establishes that

trial counsel asked Williams about his alibi defense in March of

2016 via email and that it was Williams’s fault that he didn’t

provide this information to counsel until the morning of the first

day of trial in September of 2016, so any delay by his counsel in

investigating his alibi was Williams’s own fault, not counsel’s. The

People argue that this conclusively demonstrates that counsel’s

performance wasn’t deficient, and, therefore, this claim was

properly denied without a hearing.

8
¶ 22 In its order, the postconviction court concluded that Williams

failed to establish either deficient performance or prejudice as to

trial counsel’s pretrial investigation. Specifically, the postconviction

court explained that the record established that counsel had

emailed Williams on multiple occasions, had two office meetings

with Williams, and had met with Williams at court to discuss the

case. The postconviction court also noted that the record

established that it was Williams who chose to forgo meeting with

counsel on other occasions. The court also explained that the

record established that, as part of his investigation, trial counsel

retained an investigator to interview the victim, obtain surveillance

camera footage, and subpoena witnesses.

¶ 23 As for Williams’s argument that trial counsel failed to

investigate his alibi defense, the postconviction court noted that

there was no evidence in the record to support the alleged alibi and

that, at trial, this information would have been “impeaching at best”

and wasn’t “material evidence.” The court also said that, “[a]t no

point,” did Williams tell his trial counsel about an alibi witness.

9
2. Analysis

¶ 24 At this stage, we must accept Williams’s well-pleaded

allegations that trial counsel failed to conduct an effective pretrial

investigation, including that counsel failed to fully develop an alibi

defense, as true, see Joslin, ¶ 4, and denial without a hearing is

appropriate only “if the motion, the files, and the record clearly

establish that the defendant is not entitled to relief,” DiGuglielmo,

33 P.3d at 1251.

¶ 25 In their briefing to the postconviction court and on appeal, the

People focus on the fact that trial counsel told the trial court on the

morning of the first day of trial that Williams had only told counsel

about his alibi that morning. But reaching this conclusion requires

crediting counsel’s statement in September 2016 over Williams’s

contrary allegation in his supplemental petition that he had

disclosed his alibi to his counsel sometime before the first morning

of trial.

¶ 26 Thus, although the record contains some evidence — perhaps

even persuasive evidence — that Williams didn’t disclose his alibi to

trial counsel until the morning of trial, it doesn’t definitively resolve

that issue, as the court hasn’t had the opportunity to assess

10
witness credibility. Perhaps more importantly, even assuming the

disclosure wasn’t made until the morning of trial, the record doesn’t

definitively resolve whether the fault for that late disclosure lies at

the feet of Williams or his counsel. We therefore can’t conclude that

the record definitively establishes counsel’s performance wasn’t

deficient for failing to investigate Williams’s alibi.

¶ 27 Furthermore, given the prosecution’s focus at trial on the

victim’s and co-defendant’s identification of Williams as the

assailant, an alibi defense, if developed through an adequate

investigation, could have contradicted these identifications, casting

reasonable doubt on the contested issue of identification. Thus,

taking Williams’s alibi-related allegations as true, additional

investigation may have revealed substantial evidence — potentially,

an alibi defense — which, if pursued at trial, might have reasonably

led to a different result. See People v. Chambers, 900 P.2d 1249,

1252 (Colo. App. 1994). We therefore can’t conclude that Williams

failed to adequately allege prejudice from trial counsel’s purported

failure to effectively conduct a pretrial investigation.

¶ 28 Accordingly, we remand Williams’s ineffective assistance of

counsel claim that trial counsel failed to conduct an effective

11
pretrial investigation into a potential alibi so that it may proceed to

an evidentiary hearing. In doing so, we offer no opinion on whether,

after a hearing, this claim will warrant relief.

C. Failure to Call Fingerprint Expert

¶ 29 Second, Williams argues that the postconviction court erred

when it denied his claim that his trial counsel was ineffective for

failing to consult with and call a fingerprint expert. We discern no

error because Williams failed to adequately allege that he was

prejudiced by trial counsel’s purported failures.

1. Additional Facts

¶ 30 According to the evidence presented at trial, Williams and a

co-defendant robbed and assaulted an Uber driver. Afterwards, a

crime scene investigator pulled a few fingerprints off the victim’s car

for analysis.

¶ 31 At trial, the prosecutor relied on testimony from the victim and

the co-defendant to identify Williams as the perpetrator, not on

fingerprint evidence. Indeed, during opening statement, the

prosecutor explained, “[O]nly one of the four fingerprints that were

pulled off of the door frame is useable. At the same time, we’re

12
talking about an Uber. People are in and out of there all the time.

The evidentiary value of that piece of evidence is questionable too.”

¶ 32 The People’s fingerprint expert testified that only one

fingerprint found at the scene was of any potential evidentiary

value. She testified that she compared that fingerprint to Williams’s

known prints, but her conclusion as to who left the fingerprint was

inconclusive. She also clarified that she couldn’t tell whether the

person who left the fingerprint was responsible for the crime, only

that whoever left the print was at the scene at some point.

¶ 33 And in closing argument, the prosecutor again explained that

“if the fingerprint d[id]n’t belong to the defendant, that d[id]n’t harm

the case” and emphasized that 100 to 150 Uber passengers came in

and out of the victim’s car each week.

2. Analysis

¶ 34 Williams hasn’t sufficiently alleged that he was prejudiced by

his trial counsel’s failure to call a fingerprint expert at trial. Even

assuming that trial counsel’s failure to consult with a fingerprint

expert constituted deficient performance, there isn’t a reasonable

probability that the result at trial would have been different had a

fingerprint expert been consulted and testified for the defense, as

13
fingerprint evidence didn’t play a meaningful role in establishing

identity. See Strickland, 466 U.S. at 695.

¶ 35 In his supplemental petition to the postconviction court,

Williams attached a report from a fingerprint analysis expert stating

that the expert reviewed the one usable fingerprint from the scene

and concluded that it wasn’t made by Williams. But even if such

an expert testified to this at trial, this evidence wouldn’t have been

exculpatory because, as the prosecutor recognized, the victim drove

for Uber and could have had over 100 passengers in his car during

the week of the assault. Further, there was no evidence linking the

one usable fingerprint introduced at trial to the assailant.

Therefore, even if Williams’ counsel presented evidence at trial that

definitively excluded Williams as the source of the fingerprint, such

evidence wouldn’t have been exculpatory or otherwise support that

someone other than Williams was the assailant.

¶ 36 On appeal, Williams overstates the importance of the

fingerprint evidence at trial in arguing prejudice. He contends that

the fingerprint evidence was the “most critical piece” of evidence

against him and was relied upon by the prosecution in securing a

conviction. But our review of the record belies this contention.

14
Indeed, as evinced by the prosecutor’s opening and closing

statements, the prosecution’s theory at trial focused on the victim’s

and co-defendant’s identification of Williams, not any fingerprint

evidence.

¶ 37 Given the prosecutor’s lack of reliance on the fingerprint

evidence at trial, the fact that both the victim and co-defendant

identified Williams as the assailant, and that over 100 people came

in and out of the victim’s car each week, we reject Williams’s

articulation of prejudice. Accordingly, the postconviction court

properly denied this claim without an evidentiary hearing.1

1 Williams also contends on appeal that the prosecutor argued at

trial that Williams didn’t cooperate in providing valid comparison
exemplars, and, due to this lack of cooperation, the prosecution’s
expert couldn’t determine who had left the fingerprint. Williams
argues that because trial counsel failed to consult with a fingerprint
expert, he couldn’t contest this assertion at trial, and this too
harmed his case. The People respond that because Williams didn’t
raise this argument to the postconviction court, he didn’t preserve it
for appeal. We agree it wasn’t preserved. See People v. Finney,
2012 COA 38, ¶ 15 (declining to consider a contention in a Crim. P.
35(c) petition that the defendant didn’t raise below), aff’d, 2014 CO
38. Moreover, even assuming Williams adequately preserved this
argument, Williams has failed to show prejudice as to this
contention for the same reasons discussed above.

15
D. Failure to Adequately Challenge the Photo Lineup

¶ 38 Third, Williams argues that the postconviction court erred

when it denied his claim that his trial counsel provided ineffective

assistance by failing to adequately challenge the photo lineup.

Again, we reject this contention because Williams failed to

adequately allege that he was prejudiced by trial counsel’s

purported failures.

1. Additional Facts

¶ 39 The victim identified Williams as his assailant in a pretrial

photo lineup. But the victim was only seventy percent sure that the

man in the photograph, Williams, was his assailant.

¶ 40 In Williams’s supplemental petition, he argued that empirical

studies show the negative impact of stress on eyewitness

identifications, as well as the general unreliability of eyewitness

identifications. He also attached to his reply a report from an

expert who opined on the victim’s unreliability in identifying

Williams. Based on this, Williams asserted that trial counsel was

ineffective for failing to consult with and call at trial an eyewitness

identification expert.

16
¶ 41 The People respond that trial counsel’s performance wasn’t

deficient because counsel vigorously cross-examined the victim at

trial about his identification of Williams, eliciting testimony that it

was dark at the time of the incident, the assailant was sitting in the

backseat and the victim was in the front, the assailant was wearing

a hoodie, and the victim was only seventy percent confident in

identifying Williams as his assailant. Therefore, the People assert,

Williams failed to establish either deficient performance or

prejudice.

¶ 42 In his reply brief to the postconviction court, Williams

contended that cross-examination wasn’t a substitute for scientific

expert testimony. He asserted that trial counsel’s failure to call an

identification expert prejudiced him because an expert would have

put reasonable doubt in the jurors’ minds by explaining how the

victim misidentified Williams.

¶ 43 In its order denying this claim without a hearing, the

postconviction court determined that Williams hadn’t adequately

alleged deficient performance because the record established that

trial counsel challenged the photo lineup with extensive pretrial

litigation and effectively cross-examined the victim at trial on the

17
issue. It also observed that Williams didn’t articulate any actual

prejudice that he suffered due to the alleged deficient performance.

2. Analysis

¶ 44 We agree with the postconviction court’s determination

regarding prejudice. Taking Williams’s allegations as true and

assuming trial counsel’s performance was deficient for failing to

consult with and call at trial an eyewitness identification expert,

Williams hasn’t alleged sufficient prejudice. Williams argues that

the evidence against him wasn’t “overwhelming” because his co-

defendant had major credibility issues, the victim was only seventy

percent sure of his identification, there was no video or audio

recording of the incident, and there was no reliable DNA evidence.

But Williams is understating the impact of his co-defendant’s

identification of him and her testimony at trial.

¶ 45 Even assuming that an eyewitness identification expert had

testified that the victim’s identification of Williams was unreliable,

and assuming that the jury chose to believe that testimony,

Williams’s co-defendant still identified him as the assailant. An

eyewitness misidentification expert’s testimony would attack only

18
the victim’s identification of Williams and wouldn’t affect his co-

defendant’s identification of him.

¶ 46 Thus, given the importance at trial of the co-defendant’s

identification of Williams, there isn’t a reasonable probability that,

but for trial counsel’s failure to call an identification expert, the

result of the proceeding would have been different. See Strickland,

466 U.S. at 694. Accordingly, the postconviction court properly

denied this claim without an evidentiary hearing.

E. Failure to Withdraw and Failure to Fully Inform the Court
During the Bergerud Hearing

¶ 47 Fourth, Williams argues that the postconviction court erred

when it denied his claim that his trial counsel was ineffective for

failing to withdraw as Williams’s counsel and for failing to fully

inform the trial court about the breakdown in communication

between Williams and trial counsel during the Bergerud hearing.

We disagree.

1. Additional Facts

¶ 48 Trial counsel had surgery in April of 2016 and requested to

continue Williams’s trial, which, at that time, was set for May 9,

2016. Counsel explained to the trial court that his surgery recovery

19
timeline would make a May trial difficult, and the trial court

granted his request to continue the trial. The court reset the trial

for July 2016. Trial was then continued once more to September

2016.

¶ 49 As discussed before, at the Bergerud hearing on the morning

of the first day of trial in September 2016, trial counsel requested to

withdraw as Williams’s counsel due to a breakdown in

communication between them. He told the trial court that Williams

had “trust issues” with him and that they “only met a couple of

times.” In conclusion, counsel stated, “Williams and I are not

communicating.” The trial court denied counsel’s motion to

withdraw.

¶ 50 Williams argues that trial counsel was ineffective at the

Bergerud hearing for failing to provide a more complete narrative

regarding their fractured relationship to the trial court. Specifically,

Williams contends that counsel didn’t mention counsel’s medical

situation from earlier in the year and didn’t state how many times

he had met with Williams before trial. Williams contends that trial

counsel should have provided more details to the trial court about

counsel’s lack of preparation to support his motion to withdraw.

20
2. Analysis

¶ 51 Williams’s fourth ineffective assistance of counsel claim, as he

argues it on appeal, contains two distinct contentions: (1) that trial

counsel was ineffective for failing to withdraw as Williams’s counsel

and (2) that counsel was ineffective for failing to fully inform the

trial court about the breakdown in communication between him

and Williams.

¶ 52 As an initial matter, it’s unclear if trial counsel even

represented Williams during the Bergerud hearing and thus owed

him a duty of effective assistance of counsel during that hearing.

See Bergerud, 223 P.3d at 696 (“Though represented by counsel at

the time, Bergerud, like most defendants in his position, was

effectively proceeding pro se during his request for new counsel.”);

cf. People v. Kelling, 151 P.3d 650, 657 (Colo. App. 2006) (“[C]ounsel

could not be expected to litigate his own ineffectiveness.”). But even

assuming an ineffective assistance of counsel claim is cognizable

under this circumstance, we are convinced the postconviction court

properly denied it without a hearing.

¶ 53 With respect to his first contention, Williams doesn’t explain

how trial counsel was ineffective for failing to withdraw, and his

21
allegation of prejudice is conclusory. Indeed, the record clearly

establishes that trial counsel did in fact move to withdraw from the

case on the morning of the first day of trial. The postconviction

court therefore correctly denied this claim without a hearing.

¶ 54 With respect to his second contention, Williams hasn’t

sufficiently alleged that trial counsel’s performance was deficient for

failing to fully inform the trial court about the breakdown in

communication between himself and Williams. The record

demonstrates that counsel fully and candidly told the trial court

during the Bergerud hearing about their communication

breakdown. Moreover, there is no basis to believe that the trial

court was unaware of trial counsel’s medical situation given that

five months earlier, the same trial court had granted trial counsel’s

request for a continuance due to counsel’s recent surgery.

Accordingly, Williams hasn’t sufficiently alleged deficiency under

Strickland for this claim.

¶ 55 Williams also hasn’t shown that he was prejudiced by trial

counsel’s alleged failure to fully inform the court about the

breakdown in communication between him and Williams. He

concludes that, but for this alleged deficient performance, there is a

22
reasonable probability that the trial court would have found a

conflict during the Bergerud hearing and appointed new counsel,

and he conclusively surmises that the result of the proceedings

would have been different. This statement, without more, is a

“conclusory allegation” that is “insufficient to demonstrate that he

may be entitled to postconviction relief.” People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007).

¶ 56 Accordingly, we agree with the postconviction court that

Williams hasn’t sufficiently alleged deficiency and prejudice on this

claim to warrant an evidentiary hearing.

F. Failure to Ensure Valid Speedy Trial Waiver

¶ 57 Finally, Williams argues that the postconviction court erred

when it denied his claim that his trial counsel was ineffective for

giving him improper advice regarding waiving his speedy trial right

and taking actions inconsistent with protecting that right. Again,

we disagree.

1. Additional Facts

¶ 58 As noted previously, in March 2016, trial counsel filed a

motion to continue the then-scheduled May trial because counsel

had to undergo surgery in April. At a hearing on April 29, 2016, the

23
prosecutor didn’t object to the requested continuance, Williams

signed a waiver of his right to a speedy trial, and the trial court

granted the requested continuance. This is the only speedy trial

waiver in the record.

¶ 59 On July 1, 2016, the prosecutor requested to continue the

then-scheduled July 5 trial because the prosecution hadn’t had

contact with Williams’s co-defendant, a key witness against

Williams. Trial counsel didn’t object to the continuance, and the

trial court granted the request. The court did so without requiring

Williams to waive his right to a speedy trial because it reset trial

within the then-existing speedy trial deadline.

¶ 60 In his pro se Crim. P. 35(c) petition, Williams argued that trial

counsel was ineffective by advising Williams to waive his right to a

speedy trial. Williams didn’t explain when this waiver occurred. On

appeal, Williams reasserts this claim, focusing on two specific

contentions: (1) that counsel was ineffective for advising him that if

he waived his right to a speedy trial, he would receive a more

favorable plea offer from the prosecution; and (2) that counsel was

ineffective for agreeing to the prosecution’s request to continue trial

because, by doing so, counsel was only helping the prosecution by

24
giving them more time to locate his co-defendant to testify against

him. Williams contends on appeal that this waiver occurred on

July 29, 2016.

¶ 61 The postconviction court concluded that Williams hadn’t

provided enough evidence to establish deficient performance or

prejudice under Strickland.

2. Analysis

¶ 62 We agree with the postconviction court that Williams didn’t

sufficiently allege either deficient performance or prejudice under

Strickland to warrant an evidentiary hearing for this claim.2 From

the record, it’s clear that Williams didn’t waive his speedy trial right

on July 29, 2016, as he argues on appeal. Instead, on July 1,

2016, the prosecutor requested a continuance of the July 5 trial

2 Williams first advanced this claim in his pro se petition and didn’t

reassert it in his supplemental petition. Although the record
doesn’t definitively establish whether Williams intended to abandon
this claim by not including it in his supplemental petition, Williams
did begin his supplemental petition by stating that “Williams
incorporates by reference his pro se” petition. Based on this and
because the prosecution doesn’t argue that Williams abandoned
this claim, we address the merits. Cf. People v. Smith, 2024 CO 3,
¶¶ 19-20 (concluding that the defendant “made a conscious
decision not to pursue” omitted pro se claims when neither
counsel’s motion nor reply “indicated an intention to continue to
pursue the omitted pro se claims”).

25
date because the prosecution couldn’t locate Williams’s co-

defendant, and the trial court granted the request without securing

a speedy trial waiver from Williams.

¶ 63 Even assuming Williams is referring to the time when he did

waive his right to a speedy trial on April 29, 2016, the record shows

that that continuance was at the request of the defense due to trial

counsel’s recent surgery, not at the prosecutor’s request.

¶ 64 Finally, taking Williams’s contention as true that trial counsel

advised him to waive his right to a speedy trial because he would

receive a more favorable plea offer from the prosecution, Williams

hasn’t explained how he was prejudiced by this advice.

Furthermore, the continuance for which a speedy waiver was

required and executed was at the request of trial counsel to allow

time for counsel to recover from surgery, not to give the prosecution

more time to locate a key witness against Williams. Simply put, the

record refutes his contention that any speedy trial waiver was

invalid or imprudently agreed to.

¶ 65 Accordingly, the postconviction court properly denied this

claim without an evidentiary hearing.

26
III. Disposition

¶ 66 The postconviction court’s order denying Williams’s Crim. P.

35(c) petition is affirmed in part and reversed in part, and the case

is remanded for the trial court to hold an evidentiary hearing on

Williams’s ineffective assistance of counsel claim that trial counsel

failed to conduct an effective pretrial investigation into a potential

alibi witness.

JUDGE GOMEZ and JUDGE SULLIVAN concur.

27