Peo v. Garcia

24CA0319 Peo v Garcia 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0319
City and County of Denver District Court No. 22CR409
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Justin A. Garcia,

Defendant-Appellant.

SENTENCE AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Reclamation Law, LLC, Erin Hunn, Denver, Colorado, for Defendant-Appellant
¶1 Justin A. Garcia appeals the sentence the district court

imposed after he pleaded guilty to child abuse and assault. He

contends that the court erred by (1) denying his request for a

presentencing hearing under People v. Bergerud, 223 P.3d 686

(Colo. 2010); and (2) when sentencing him, considering factors not

contemplated in the sentencing statute. We affirm.

I. Background

¶2 The prosecution charged Garcia with twenty-three counts

based on allegations that he sexually assaulted his adolescent

daughters for more than two years. In exchange for dismissal of the

original charges, Garcia pleaded guilty to one count of child abuse

resulting in serious bodily injury and one count of second degree

assault, with a sexual factual basis for each count. As part of the

plea agreement, Garcia stipulated to a ten- to twenty-four-year

sentence in the custody of the Department of Corrections (plus

mandatory parole) and a consecutive ten-year term of sex offender

intensive supervised probation (SOISP). He also agreed to register

as a sex offender.

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¶3 At his providency hearing, the court accepted Garcia’s plea

and found that he entered it knowingly, intelligently, and

voluntarily. The court then set a sentencing hearing.

¶4 Approximately a week and a half before that hearing, Garcia

wrote a letter to the court saying,

I am writting [sic] you to express my concern
about my Public Defenders . . . . I believe that
I am being deprived of my rite [sic] to effective
assistance of counsel and am requesting a
Burger [sic] Hearing for the following reasons.

• Breakdown in communication, neither
[public defenders] have come to visit me
since the [providency hearing] except to
sit in on the [offense-specific evaluation
(OSE)] and [presentencing investigation
(PSI)] Interview.

• I lost all confidence in [public defenders].
Sentencing is less then [sic] two weeks
away and we have formed no sentence
mitigation strategy.

• [Public defenders] withheld evidence in
my case, victims written recantation.

¶5 The court subsequently postponed the sentencing hearing for

one month “per agreement of all parties.”

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¶6 At the sentencing hearing, the court acknowledged Garcia’s

letter but said that he should present the allegations in his letter

through a Crim. P. 35(c) motion following sentencing:

THE COURT: Mr. Garcia did file a motion
addressing some dissatisfaction or grievances
with his counsel. My thought is — My initial
thought is that we continue to sentencing and
then he can pursue a 35(c). So a 35(c) would
be that you’d be asserting ineffective
assistance of counsel, Mr. Garcia.

GARCIA: Okay.

THE COURT: And we’ll appoint alternative
defense counsel to do that, but I think we can
proceed though to sentencing. . . .

DEFENSE COUNSEL: I — I agree with that I
guess. We are asking to continue sentencing.

THE COURT: Okay.

¶7 The court deferred sentencing Garcia again and set a new date

for the sentencing hearing. In the meantime, the court issued a

written order stating that it would appoint postconviction counsel

for Garcia and asking the Office of the Public Defender to identify

any conflicts of interest it might have in representing Garcia in

connection with a postconviction motion. Garcia’s public defenders

responded that they would have a conflict in doing so and requested

appointment of conflict-free postconviction counsel for Garcia.

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¶8 The court sentenced Garcia to twenty-four years in the

custody of the Department of Corrections (the maximum possible

sentence specified in the plea agreement) and ten years of SOISP.

The court found that Garcia’s alleged conduct was “outrageous” and

characterized the stipulated sentence in the plea agreement as

“gracious.” The court then said,

[T]he most important thing for me to do is
fashion a sentence where when Mr. Garcia gets
out of . . . prison, that [the victims] are well
into their adult lives and that they’re able to
take care of themselves. So I think twenty-
four years is an appropriate sentence here.
They’ll be . . . women of age that hopefully
they’ll have . . . gotten through the trauma and
will be able to take care of themselves, so I
think that’s the most important thing here.

¶9 On appeal, Garcia contends that the court erred by

(1) characterizing his letter as a Crim. P. 35(c) petition rather than

as a request for a Bergerud hearing and not conducting such a

hearing, and (2) considering his daughters’ ages in fashioning

Garcia’s sentence.

II. Request for a Bergerud Hearing

¶ 10 Garcia first contends that the court erred by proceeding to

sentencing without first holding a Bergerud hearing on the concerns

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about his counsel reflected in his letter. The People counter that

Garcia either invited the error or waived this contention.

Alternatively, the People argue that the district court properly

construed Garcia’s letter as an ineffective assistance of counsel

claim and, as such, properly postponed consideration of the issues

raised in the letter until after sentencing.

A. Invited Error and Waiver

¶ 11 The People argue that, by agreeing to the court’s proposal to

take up Garcia’s contentions in a postconviction motion, Garcia

invited the error he now asserts on appeal. We disagree.

¶ 12 “The doctrine of invited error prevents a party from

complaining on appeal of an error that he or she has invited or

injected into the case; the party must abide the consequences of his

or her acts.” People v. Rediger, 2018 CO 32, ¶ 34, 416 P.3d 893,

901. “Invited error is a narrow doctrine and applies to errors in

trial strategy but not to errors that result from oversight.” Id.

¶ 13 We hold that neither Garcia nor his counsel invited the

claimed error. The court interpreted Garcia’s pro se letter as a

request for postconviction relief under Crim. P. 35(c) and proposed

to address the issues raised in the letter through that lens.

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Although Garcia and his counsel assented to the court’s proposal,

this plan of action was not their idea, and they did not suggest it as

a matter of strategy. See id. at ¶¶ 36-37, 416 P.3d at 902

(characterizing the “acquiescence” at issue in Horton v. Suthers, 43

P.3d 611, 619 (Colo. 2002), as a “specific admission[]” amounting to

an effective concession, and distinguishing cases where a party, by

mere oversight, generally expresses satisfaction with a proposed

course of conduct).

¶ 14 The People next contend that Garcia waived the claimed error.

We are, again, unpersuaded. Waiver is “the intentional

relinquishment of a known right or privilege.” Id. at ¶ 39, 416 P.3d

at 902 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247

(Colo. 1984)). We indulge every reasonable presumption against

waiver. Id. No evidence in the record suggests that Garcia

intentionally relinquished his request for substitute counsel before

sentencing, especially given that he conflated two legally distinct

concepts — one involving counsel’s past representation and one

involving counsel’s representation going forward — in his letter.

¶ 15 Nor does counsel’s fleeting, half-hearted approval of the court’s

proposal — which she made immediately before requesting a

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continuance and without conferring with Garcia — reflect the kind

of informed and intentional waiver contemplated in Rediger. For

these reasons, Garcia did not waive his claim that the court erred

by sentencing him before conducting a Bergerud hearing.

B. The Nature of the Allegations Raised in Garcia’s Letter

¶ 16 In his letter, Garcia generally asserted that he had received

ineffective assistance of counsel and requested a Bergerud hearing.

But upon close scrutiny, it becomes apparent that his allegations

raised discrete — albeit related — issues that implicated two

different procedures. Because Garcia wrote the letter himself, we

read the allegations in his letter broadly. People v. Cali, 2020 CO

20, ¶ 34, 459 P.3d 516, 522 (“[W]e will broadly construe a pro se

litigant’s pleadings to effectuate the substance, rather than the

form, of those pleadings . . . .”); Bergerud, 223 P.3d at 696-97.

¶ 17 We first consider whether the three allegations in Garcia’s

letter implicated the alleged ineffective assistance of his counsel

earlier in the case or constituted a request for new counsel in

connection with his forthcoming sentencing.

¶ 18 The first two allegations were forward-looking. In those

allegations, Garcia requested new counsel before his sentencing

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hearing for two reasons. First, he suggested that communications

with his current attorneys had broken down because they had only

visited him in custody for the OSE and PSI interview. Second,

Garcia asserted that his counsel had not yet formulated a

sentencing strategy even though the sentencing hearing was less

than two weeks away. In sum, Garcia asserted that he would

receive an unjust sentence unless the court appointed new lawyers

for him.

¶ 19 A court will typically hold a Bergerud hearing to determine

whether a substitution of counsel is required under the facts of the

case. See Bergerud, 223 P.3d at 703 (“[A] request for new counsel

necessarily implies a limited waiver of the attorney-client privilege;

the trial court must be able to inquire into the details of a dispute

between a defendant and his attorneys — outside the presence of

opposing counsel — in order to evaluate the dispute’s constitutional

character and determine whether the defendant is entitled to

replacement counsel.”).

¶ 20 Garcia appropriately requested a Bergerud hearing to address

the first two allegations in his letter, as they focused on whether his

current counsel could competently represent him at the upcoming

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sentencing hearing. See People v. Ramcharan, 2024 COA 110, ¶ 77,

562 P.3d 425, 438 (explaining that a Bergerud hearing is intended

to “adjudicate a defendant’s assertion that his appointed attorney

cannot or will not completely represent him”). Thus, we agree with

Garcia that the court incorrectly characterized his first two

allegations as claims for postconviction relief. The court interpreted

those allegations as Crim. P. 35(c) ineffective assistance of counsel

claims rather than as Bergerud claims, in which a defendant seeks

new counsel going forward in the case. See Bergerud, 223 P.3d at

703.

¶ 21 In contrast, the third allegation in the letter — that Garcia’s

counsel withheld evidence of one or both victims’ recantation — is

fundamentally retrospective. It related to his counsel’s effectiveness

before Garcia entered into the plea agreement. Although he did not

explicitly challenge his guilty plea, Garcia’s third allegation appears

to call into question whether his guilty plea was knowingly,

intelligently, and voluntarily entered in light of his counsel’s alleged

ineffectiveness.

¶ 22 “The right to counsel is a fundamental right guaranteed by the

Sixth Amendment to the United States Constitution and is

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considered essential to a fair trial.” People v. Rodriguez, 2022 COA

98, ¶ 62, 521 P.3d 678, 689. Because ineffective assistance claims

implicate the constitutional right to the effective assistance of

counsel, see People v. Houser, 2020 COA 128, ¶ 27, 490 P.3d 863,

870, they may be presented through a Crim. P. 35(c)(2)(I) motion.

That rule provides that an “application for postconviction review”

may be premised on the claim that the defendant’s “conviction was

obtained or sentence imposed in violation of the Constitution or

laws of the United States or the constitution or laws of this state.”

Crim. P. 35(c)(2)(I). Ineffective assistance claims are “generally not

permitted . . . on direct appeal because such a claim ordinarily

requires the development of a factual record that will not have been

developed in the trial court.” A.R. v. D.R., 2020 CO 10, ¶ 62, 456

P.3d 1266, 1281; see also People v. Kelling, 151 P.3d 650, 655

(Colo. App. 2006).

¶ 23 Thus, the court correctly determined that Garcia should raise

his third allegation through a Crim. P. 35(c) claim following

sentencing.

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C. Although the Court Mischaracterized the Nature of
Garcia’s First Two Allegations, It Nonetheless
Reached the Correct Result

1. Applicable Law and Standard of Review

¶ 24 We consider four factors when determining whether a district

court erred by denying a defendant’s request for substitution of

counsel:

(1) the timeliness of the defendant’s motion;

(2) the adequacy of the court’s inquiry;

(3) whether the conflict between the defendant and his

attorney was so great that it resulted in a total lack

of communication or otherwise prevented an

adequate defense; and

(4) whether the defendant substantially and

unreasonably contributed to the conflict with his

attorney.

People v. Session, 2020 COA 158, ¶ 15, 480 P.3d 747, 752

(emphasis added).

¶ 25 Upon receiving a request for substitute counsel, a court

generally must conduct a hearing or inquire into the reasons for the

request. Id. at ¶ 18, 480 P.3d at 753. “But when a defendant’s

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written motion describes his complaints in sufficient detail, the

court need not inquire further.” Id.; see also People v. Arko, 159

P.3d 713, 718-19 (Colo. App. 2006) (holding that further inquiry is

not needed if the defendant fully articulated his disputes with

counsel in his motion; those disputes pertained to matters of

strategy; and they did not concern “a conflict of interest, a complete

breakdown of communication[,] or an irreconcilable conflict which

leads to an apparently unjust verdict”) (citation omitted), rev’d on

other grounds, 183 P.3d 555 (Colo. 2008). “We review a district

court’s denial of a defendant’s request for substitution of counsel

for an abuse of discretion.” Rodriguez, ¶ 61, 521 P.3d at 689.

¶ 26 Further, we will not reverse a district court’s decision if the

court “reache[d] the correct result although by an incorrect

analysis.” People v. Quintana, 882 P.2d 1366, 1375 (Colo. 1994),

abrogated on other grounds by Rojas v. People, 2022 CO 8, 504 P.3d

296; see also People v. Garcia, 2012 COA 79, ¶ 62, 296 P.3d 285,

293 (“We may affirm . . . on any ground that is supported by the

record.”); People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)

(holding that an appellate court may affirm a district court’s ruling

on different grounds).

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2. Analysis

¶ 27 Although the court mischaracterized the first two claims in

Garcia’s letter, it nonetheless reached the correct result on those

two allegations because Garcia’s request for substitute counsel

failed as a matter of law. An indigent criminal defendant has a

constitutional right to counsel, but he does not “have the right to

demand a particular attorney.” Session, ¶ 14, 480 P.3d at 752.

Thus, “[b]efore change of counsel is warranted[,] the trial court

must verify that the defendant has ‘some well founded reason for

believing that the appointed attorney cannot or will not completely

represent him.’” Ramcharan, ¶ 85, 562 P.3d at 439 (quoting People

v. Arguello, 772 P.2d 87, 94 (Colo. 1989)). “[A] court isn’t required

to substitute counsel unless a defendant establishes ‘good cause,

such as a conflict of interest, a complete breakdown of

communication[,] or an irreconcilable conflict which leads to an

apparently unjust verdict.’” Session, ¶ 14, 480 P.3d at 752 (quoting

Arguello, 772 P.2d at 94).

¶ 28 In the first allegation, Garcia alleged a breakdown in

communication — a recognized justification for substitution of

counsel. See id. But he admitted that counsel attended his OSE

13
and PSI interview. Garcia’s first allegation thus fails under Session

because he did not allege a conflict “so great that it resulted in a

total lack of communication.” Id. at ¶ 15, 480 P.3d at 752

(emphasis added); see also People v. Faussett, 2016 COA 94M, ¶ 24,

409 P.3d 477, 483 (holding that a total breakdown in

communication means such minimal contact with the attorney that

meaningful communication was not possible); People v. Johnson,

2016 COA 15, ¶ 32, 381 P.3d 348, 355 (holding that an allegation

of “infrequent visits from counsel” is insufficient to establish a

complete breakdown in communication).

¶ 29 Garcia’s second allegation in his letter similarly fails as a

matter of law. Garcia asserted in that allegation that his counsel

had not yet formulated a mitigation strategy for sentencing, even

though the sentencing hearing was less than two weeks away. But

counsel had more than a week to develop such a strategy and,

critically, Garcia did not allege that he had any reason to believe

that the attorneys would not be prepared by the time of the

sentencing hearing.

¶ 30 It was the sole responsibility of Garcia’s attorneys to determine

when and how they would prepare for the sentencing hearing.

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“Defense counsel stands as captain of the ship in ascertaining . . .

what strategy should be employed in the defense of the case.” Arko,

183 P.3d at 558 (quoting Steward v. People, 498 P.2d 933, 934

(Colo. 1972)). Garcia’s lack of confidence in counsel’s preparedness

in the weeks before sentencing did not amount to the type of

conflict of interest, complete breakdown in communication, or

irreconcilable conflict that warrants substitution of sentencing

counsel. See Session, ¶ 15, 480 P.3d at 752.

¶ 31 In sum, the court reached the correct result by rejecting the

first two allegations in Garcia’s letter.

D. The Third Allegation in Garcia’s Letter

¶ 32 Although Garcia did not explicitly challenge his guilty plea in

the third allegation in his letter, in that allegation, Garcia appeared

to assert that he had not knowingly, intelligently, and voluntarily

entered into the plea agreement because of his counsel’s alleged

ineffectiveness. As explained, supra Part II.B, these types of

retrospective ineffective assistance of counsel arguments are

properly presented in Crim. P. 35(c) motions.

¶ 33 Thus, the court correctly determined that Garcia should raise

his third allegation through a Crim. P. 35(c) claim following his

15
sentencing. See A.R., ¶ 62, 456 P.3d at 1281; Kelling, 151 P.3d at

655.

III. Sentencing Considerations

¶ 34 Finally, Garcia asserts that, in fashioning his sentence, the

court erred by considering factors not contemplated in the

sentencing statute. The People counter that Garcia challenges the

propriety of his sentence, which, on these facts, we may not review.

We agree with the People.

¶ 35 “When a sentence is imposed upon any person following a

conviction of any felony, . . . the person convicted shall have the

right to one appellate review of the propriety of the sentence.”

§ 18-1-409(1), C.R.S. 2024. But where, as here, “the sentence is

within a range agreed upon by the parties pursuant to a plea

agreement, the defendant shall not have the right of appellate

review of the propriety of the sentence.” Id.

¶ 36 “‘[T]he propriety of the sentence,’ as that phrase is used in

[section 18-1-409(1)], does not comprehend the manner in which

the sentence was imposed (i.e., the propriety of the sentencing

proceeding).” Sullivan v. People, 2020 CO 58, ¶ 4, 465 P.3d 25, 27.

16
Thus, the statute does not bar appeals concerning the manner in

which a sentence was imposed. Id. at ¶¶ 4, 17, 465 P.3d at 27, 30.

¶ 37 “Illegal sentences should not be confused with sentences

imposed in an illegal manner.” Tennyson v. People, 2025 CO 31,

¶ 29, 569 P.3d 815, 823. Illegal sentence claims — claims

challenging the propriety of a sentence — implicate the “intrinsic

fairness or appropriateness of the sentence itself taking into

account ‘the nature of the offense, the character of the offender, and

the public interest.’” Sullivan, ¶ 13, 465 P.3d at 28-29 (quoting

People v. Malacara, 606 P.2d 1300, 1302-03 (Colo. 1980)); see also

Tennyson, ¶¶ 25-27, 569 P.3d at 823. In contrast, illegal manner

claims — claims challenging the propriety of the sentencing

proceeding — involve “extrinsic factors and procedures which affect

the determination of the sentence,” including “the sufficiency and

accuracy of the information on which the sentence was based.”

Sullivan, ¶ 13, 465 P.3d at 29 (quoting Malacara, 606 P.2d at 1303);

see also Tennyson, ¶ 29, 569 P.3d at 823.

¶ 38 On appeal, Garcia argues that the sentencing court “did not

balance the many facets of sentencing” set out in section

18-1-102.5, C.R.S. 2024, including “a lot of mitigation.” He asserts

17
that, instead, the court “imposed the maximum sentence per the

plea agreement entirely based on how old the victims would be

when Mr. Garcia would be released from the Department of

Corrections.”

¶ 39 We conclude that Garcia challenges the propriety of his

sentence. He contests the intrinsic fairness or appropriateness of

the sentence, rather than alleging a defect in the “extrinsic factors

and procedures” or the imposition of a sentence without adequate

underlying information. Accordingly, we hold that section

18-1-409(1) precludes us from reviewing this contention.

IV. Disposition

¶ 40 The sentence is affirmed.

JUDGE PAWAR and JUDGE LUM concur.

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