People v. Evans

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 30, 2026

2026COA31

No. 23CA1597, People v. Evans — Attorneys and Clients —
Ineffective Assistance of Counsel — Plea Bargains

In this postconviction case, the defendant argued that his

lawyer’s ineffective assistance caused him to reject a “soft” plea offer

during plea negotiations; as a result, no firm offer materialized and

he proceeded to trial, after which he was convicted of felony murder

and sentenced to life in prison without parole. After a hearing, the

district court rejected the ineffective assistance of counsel claim,

reasoning that the defendant could not establish prejudice in the

absence of a firm offer.

A division of the court of appeals, following federal case law on

this issue, concludes that the absence of a firm offer does not

preclude a claim that counsel’s ineffective assistance prevented the

defendant from entering a plea pursuant to a plea offer. To prevail
on that version of an ineffective assistance of plea counsel claim,

the defendant must make a threshold showing that, but for

counsel’s deficient performance, there is a reasonable probability

that the prosecution would have made a firm offer.

Because the district court applied the wrong legal standard,

the division reverses the district court’s denial of the claim and

remands for further proceedings. The division also reverses the

district court’s summary denial of a second ineffective assistance of

counsel claim and remands for an evidentiary hearing on that

claim.
COLORADO COURT OF APPEALS 2026COA31

Court of Appeals No. 23CA1597
Arapahoe County District Court No. 06CR1201
Honorable Ryan J. Stuart, Judge
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Evans,

Defendant-Appellant.

ORDERS REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

Announced April 30, 2026

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Michael Evans, was found guilty of burglary and

felony murder in connection with a home invasion that ended with

the shooting death of the homeowner. The jury specifically found

that Evans was not the shooter, and, indeed, the evidence did not

conclusively establish that he was present at the scene of the

burglary.

¶2 Evans later moved for postconviction relief alleging, primarily,

that his lawyer had provided ineffective assistance during plea

negotiations by failing to advise him of his potential exposure as a

complicitor (the complicity claim) and of his parole eligibility (the

parole eligibility claim). Though the claims were presented as

somewhat distinct, the gist of the motion was that, together,

counsel’s failures impeded Evans’s ability to properly evaluate a

“soft” plea offer, so he rejected it.

¶3 The district court issued an order denying the parole eligibility

claim after a hearing and, in a separate order, summarily denied

the intertwined complicity claim. We conclude that the district

court misapplied the law in denying the parole eligibility claim, and

that it should have held a hearing on the complicity claim.

1
Accordingly, we reverse the court’s orders and remand the case for

further proceedings.1

I. Background

A. Trial Proceedings

¶4 In October 2005, Derek Lanctot and two accomplices broke

into the victim’s home. During the burglary, Lanctot and one of the

accomplices shot and killed the victim.

¶5 A few months later, police searched Evans’s apartment in

connection with an investigation of an unrelated armed robbery.

They found a friend of Evans’s, also a suspect in the armed robbery,

and, near the friend, a gun later determined to have been used in

both the armed robbery and the October burglary-homicide.

¶6 During a series of police interviews, Evans eventually admitted

knowledge of a plan to burglarize the victim’s home and identified

Lanctot and two others (not the friend involved in the armed

robbery) as the perpetrators. Evans said that he had helped one of

1 Evans also asserted a claim that his life-without-parole sentence

for felony murder violated the Eighth Amendment, a claim the
district court denied without a hearing. In light of our disposition,
we decline to address this issue on appeal. Evans can reassert his
challenge to his sentence if there is a subsequent appeal in this
case.

2
the accomplices buy a gun the night before the burglary, but he told

police that he had decided not to participate in the crime because

he did not have his own gun. He had hoped to loan the group his

car, though, because it did not have a license plate, but the car

would not start. He repeatedly denied going to the victim’s home.

¶7 A grand jury returned an indictment charging Evans and

Lanctot with first degree felony murder, second degree murder,

burglary, and conspiracy to commit burglary. (One of the

accomplices whom Evans identified died in December 2005. The

other was not charged.)

¶8 About two months before trial, Lanctot pleaded guilty,

pursuant to a plea agreement, to conspiracy to commit second

degree murder in exchange for a stipulated sentence of twenty-five

years in prison.2

2 Lanctot’s twenty-five-year sentence imposed in Arapahoe County

Case No. 06CR1193 was ordered to run concurrently with a
sixteen-year sentence he had received a year earlier in Arapahoe
County Case No. 05CR3211 for a shooting he committed about two
weeks after the October burglary-homicide. We may take judicial
notice under CRE 201(b) of the court filings in these related cases.
See Doyle v. People, 2015 CO 10, ¶ 12.

3
¶9 Evans proceeded to trial. In opening statement, the

prosecutor told the jury that two witnesses — Lanctot and an

acquaintance of Evans’s from the neighborhood — would place

Evans at the victim’s home on the night of the crimes. But Lanctot

refused to testify and the acquaintance recanted his earlier

statement to police implicating Evans. As a result, the gun found in

Evans’s apartment was the only direct evidence linking him to the

scene of the crimes. So, during closing argument, the prosecution

pressed a complicity theory, telling the jury that Evans “didn’t even

have to be on the premises to be guilty” of felony murder. As the

prosecutor explained, Evans only “needed to be aiding and abetting

the burglary, and in the course of that burglary, somebody’s death

was caused.”

¶ 10 During its deliberations, the jury asked several questions

concerning the application of the complicity instruction to burglary,

4
the predicate offense for felony murder.3 On the fifth day of

deliberations, the jury returned its verdict: It acquitted Evans of

second degree murder but found him guilty of felony murder and

the burglary counts. The jury found that Evans had not used or

possessed a deadly weapon during the commission of those

offenses.

¶ 11 The court imposed a mandatory sentence of life without parole

for the felony murder conviction.

3 Specifically, the jury asked the following questions:

• “Do we have to decide that the defendant actually entered the
building to be guilty of [first] degree burglary or do we just
have to show that he was involved in the planning and took
overt steps to assist its happening?”
• “Part of the reasoning for this question [about the interplay
between instructions 23 and 25] is the prosecutor’s remarks
. . . [that] they don’t have to prove that [Evans] actually went
and participated, only that he was knowingly willing to.”
• “Does that mean that if we feel that the defendant satisfies the
elements in [the complicity instruction] that we can use the
complicity theory for a conviction?”
• “Can you explain the difference between a complicitor and
conspirator?”
• “We are having a disagreement on how to understand [the
complicity instruction]. . . . Can you clarify the definition of
‘accountable’ as it applies to this instruction?”
• Does “element 4 [of instruction 23,] ‘committed the crime of
first degree burglary,’” include committing the crime as a
complicitor?

5
B. Postconviction Proceedings

¶ 12 After Evans’s convictions were largely affirmed on direct

appeal,4 he filed a timely Crim. P. 35(c) motion.5 He alleged, as

relevant here, that trial counsel provided ineffective assistance by

failing to properly advise him about whether to accept a plea offer of

approximately twenty-five-years. Specifically, Evans claimed that

trial counsel failed (1) to explain the doctrine of complicity liability

and its potential application to his case and (2) to properly advise

him about parole eligibility. He asserted that, but for counsel’s

4 While a division of this court affirmed the convictions for first

degree murder and conspiracy to commit burglary, it vacated the
conviction for first degree burglary, concluding that it must be
merged with the conviction for first degree murder. People v. Evans,
slip op. at 22 (Colo. App. No. 07CA2158, July 21, 2011) (not
published pursuant to C.A.R. 35(f)).

5 After the trial court merged the first degree burglary conviction

into the felony murder conviction, Evans stood convicted of felony
murder, then a class 1 felony, and conspiracy to commit burglary, a
class 4 felony. The Crim. P. 35(c) motion was timely with respect to
the felony murder conviction, but not the conspiracy to commit
burglary conviction. See § 16-5-402(1), C.R.S. 2025 (except with
respect to a class 1 felony, a Crim. P. 35(c) motion must be filed
within three years of a defendant’s conviction for a felony offense).
Accordingly, the conspiracy to commit burglary conviction is not
affected by the postconviction proceedings.

6
deficient performance in both respects, he would have accepted the

plea offer and avoided a life sentence.

¶ 13 In an initial order, the district court denied the complicity

claim without a hearing and granted a hearing on the parole

eligibility claim. After holding an evidentiary hearing, the court

issued a second order denying the parole eligibility claim, on the

ground that Evans failed to establish that the prosecution had

made a firm plea offer.

II. Ineffective Assistance of Counsel Claims

¶ 14 Evans contends that the court misapplied the law in denying

his parole eligibility claim because he did not have to establish the

existence of a firm offer, only a reasonable probability that, but for

counsel’s deficient performance, the parties’ negotiations would

have resulted in a firm offer that he would have accepted. And he

contends that the court erred by denying his complicity claim

without a hearing because he alleged facts that, if true, would

establish ineffective assistance of counsel. We agree with Evans on

both counts.

7
A. Legal Principles and Standard of Review

¶ 15 A criminal defendant has a constitutional right to the effective

assistance of counsel. U.S. Const. amend. VI; Colo. Const. art. II,

§ 16; People v. Rainey, 2023 CO 14, ¶ 1. To prevail on an ineffective

assistance of counsel claim, a defendant must show that

(1) counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness; and (2) counsel’s deficient

performance prejudiced the defense, meaning there is a reasonable

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

proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687-88, 694 (1984).

¶ 16 The court may deny a Rule 35(c) motion without a hearing

only if the defendant’s allegations are bare and conclusory; the

allegations, even if true, do not establish deficient performance or

prejudice; or the record refutes the defendant’s claims directly.

People v. Duran, 2015 COA 141, ¶ 9; see Ardolino v. People, 69 P.3d

73, 77 (Colo. 2003).

¶ 17 We review the summary denial of a Rule 35(c) motion de novo.

People v. Delgado, 2019 COA 55, ¶ 6. When the court denies a Rule

35(c) motion after an evidentiary hearing, however, we review its

8
ruling as a mixed question of fact and law. See People v. Sharp,

2019 COA 133, ¶ 12. Under this standard, we defer to the court’s

findings of fact if they have record support, but we review its legal

conclusions — including “the ultimate determinations on

Strickland’s performance and prejudice prongs” — de novo. Id.

(citation omitted).

B. Parole Eligibility Claim

¶ 18 The question presented with respect to the parole eligibility

claim is whether, to demonstrate prejudice, Evans had to establish

that the prosecution had extended a formal or “firm” plea offer. He

says no, and we agree.

1. Crim. P. 35(c) Proceedings

¶ 19 Evans was twenty years old at the time of the crime. In his

Rule 35(c) motion, he alleged that the prosecution extended an offer

of “approximately [twenty-five] years” in exchange for his guilty plea

to second degree murder. He said that his trial counsel failed to

properly advise him about his parole eligibility, and, as a result, he

believed he would have to serve one hundred percent of the

sentence, so he rejected the offer. He alleged that if he had known

9
that he would be “eligible for parole after service of approximately

one half” of the sentence, he would have accepted the offer.

¶ 20 The district court agreed that these allegations, if true,

demonstrated deficient performance by trial counsel that prejudiced

Evans. Accordingly, it granted a hearing on the claim.

¶ 21 At the hearing, Evans testified more specifically that he spoke

with counsel about a twenty-seven-year plea offer on two occasions,

for a couple minutes each time. Counsel did not explain the

concept of parole or advise Evans that he would be eligible for

parole under the offer, so he thought he would “be [fifty] when [he]

g[o]t home,” and he told counsel he would not “tak[e] that deal.”

Counsel never dispelled Evans’s misconception about the amount of

time he would serve under the offer. Indeed, according to Evans,

she advised him to reject the offer for an independent reason: there

“was no evidence to show” that he was even at the scene of the

burglary.

¶ 22 Neither Evans’s trial counsel nor the prosecutor on his case

remembered much about the pretrial proceedings. They agreed that

plea negotiations in serious cases often begin with a “soft” offer to

see if the parties are generally on the same page and might reach a

10
firm agreement. They explained that this process avoids a situation

where the prosecutor clears an offer with victims or law

enforcement but later learns that the parties are too far apart to

reach a disposition.

¶ 23 Trial counsel did not recall plea negotiations, but she

acknowledged that her notes, which were admitted as exhibits,

indicated that the prosecution had extended some form of a twenty-

seven-year offer, which Evans rejected. The evidence also showed

that, at a hearing in June 2007, a month before trial and shortly

after Lanctot pleaded guilty, trial counsel informed the court that

she was “in plea negotiations with the prosecution” and there had

“been some movement” toward a disposition, but further

discussions were needed before the parties could “firm up an offer.”

¶ 24 The prosecutor likewise had no recollection of plea

negotiations. He testified that he reviewed his file and did not see

any notes indicating that he had made even a “soft” offer in the

case.

¶ 25 The district court found that “‘soft’ negotiations did occur” but

that a firm offer was never extended. The court concluded that the

absence of a firm offer meant Evans could not establish either

11
deficient performance or prejudice. According to the court, trial

counsel did not have an obligation to advise Evans about a mere

“possible” twenty-seven-year offer, and, because a firm offer was

never extended, trial counsel’s performance, even if deficient, could

not have been the reason Evans did not plead guilty.

2. The District Court Applied the Wrong Legal Standard

¶ 26 A defendant’s right to effective assistance of counsel extends to

the plea bargaining process. Missouri v. Frye, 566 U.S. 134, 144

(2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus, a claim

alleging ineffective assistance during plea negotiations is subject to

Strickland’s two-part analysis. Hill v. Lockhart, 474 U.S. 52, 58

(1985). To establish prejudice in the context of plea negotiations,

the defendant must show a reasonable probability that “the

outcome of the plea process would have been different with

competent advice.” Lafler, 566 U.S. at 163. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome,” which is a standard “somewhat lower” than

preponderance of the evidence. Strickland, 466 U.S. at 694.

¶ 27 In one version of an ineffective assistance of plea counsel

claim, the defendant alleges that, based on the incompetent advice

12
of counsel, he rejected a formal plea offer and was convicted after

the ensuing trial. See, e.g., Delgado, ¶¶ 10-11. A defendant

establishes prejudice in that case by showing a reasonable

probability that, but for counsel’s deficient advice, he would have

accepted the offer, it would have been presented to and enforced by

the court, and his sentence under the offer would have been less

severe than the one imposed after the jury’s guilty verdict. Lafler,

566 U.S. at 164.

¶ 28 But another version of the claim is also cognizable — that

counsel’s deficient performance prevented a favorable firm offer

from being extended in the first place. See, e.g., Byrd v. Skipper,

940 F.3d 248, 256-57 (6th Cir. 2019). A defendant raising this

version of an ineffective assistance of plea counsel claim “faces a

formidable standard” because, in addition to establishing the other

prejudice elements, he must make a threshold showing — that

there is a “reasonable probability that but for counsel’s errors, [he]

would have received a [firm] plea offer.” Id. at 257.

¶ 29 Two cases with facts similar to those presented here illustrate

the concept. In United States v. Gordon, the prosecution made an

informal offer to resolve the defendant’s charges with a

13
recommended sentence of eighty-four months. 156 F.3d 376, 378

(2d Cir. 1998). Based on counsel’s deficient advice about possible

sentencing exposure, the defendant rejected the informal offer, and

after a trial, he was sentenced to 210 months in prison. Id. at 377-

78. He later asserted an ineffective assistance of plea counsel

claim. The prosecution countered that the defendant could not

establish prejudice because no formal offer had been extended. Id.

at 380. The court rejected that argument, concluding that “whether

the government had made a formal plea offer was irrelevant” — the

defendant was prejudiced because counsel’s advice deprived him of

an opportunity to “pursue further plea negotiations” and obtain a

formal offer. Id.

¶ 30 The court in United States v. Brooks reached the same

conclusion. Nos. 10-20078-JWL, 14-2624-JWL, 2015 WL 5837636,

at *4 (D. Kan. Oct. 6, 2015) (unpublished opinion). In that case,

like this one, defense counsel and the prosecutor engaged in “soft”

negotiations to avoid having the prosecutor “spin his wheels”

procuring approval “until [the] defendant’s interest was known.” Id.

But according to the defendant, counsel’s lack of advice about the

soft offer caused the negotiations to end without a firm offer. Id.

14
When the defendant asserted an ineffective assistance of counsel

claim, the prosecution defended on the ground that it had not made

a firm offer, and, therefore, the defendant could not show prejudice.

Id. at *5. The court disagreed, explaining that while “[i]t may be

more difficult for a defendant to establish the necessary prejudice in

the absence of a formal plea offer,” because the defendant must

show that the prosecution “would in fact have made a particular

offer,” the claim was not foreclosed by the lack of a formal offer. Id.

at *6; see also Delatorre v. United States, 847 F.3d 837, 846 (7th

Cir. 2017) (a defendant can establish prejudice in the absence of an

offer by showing a reasonable probability “that the prosecutor

would have actually offered him a deal had his attorney been

competent”); Barnes v. Warden of Green Haven Corr. Facility, 416 F.

Supp. 3d 152, 158 (E.D.N.Y. 2019) (holding that even absent a firm

offer, the defendant established prejudice by showing that, but for

counsel’s errors, there was a “reasonable probability that further

plea negotiations would have been pursued, that the People would

have made a plea offer with a sentence of [ten] to [twelve] years, and

that [the defendant] would have accepted it”); Flood v. United States,

345 F. Supp. 3d 599, 613 (D. Md. 2018) (explaining that where the

15
prejudice alleged is the denial of an opportunity to negotiate a plea

agreement, the defendant must show “an additional reasonable

probability that ‘the government would have in fact made him a

particular plea offer’ in the first place” (citation omitted)); United

States v. Giamo, 153 F. Supp. 3d 744, 761 (E.D. Pa. 2015) (to

establish prejudice where a firm offer was not extended, the

defendant must demonstrate a reasonable probability that “there

would ‘be a plea offer by the [g]overnment’” (citation omitted)), aff’d,

665 F. App’x 154 (3d Cir. 2016); cf. United States v. Swaby, 855

F.3d 233, 241 (4th Cir. 2017) (a defendant can establish prejudice

in the plea context by showing that, but for counsel’s errors, he

would have negotiated a more favorable plea offer); Savage v. State,

511 P.3d 249, 257 (Idaho 2022) (same).

¶ 31 Here, the district court focused on whether the prosecution

had extended a firm offer and, finding that it had not, reasoned that

the lack of a firm offer, and not counsel’s errors, precluded Evans

from accepting a plea deal. But Evans’s claim encompasses an

argument that, but for counsel’s failure to properly advise him of

the true consequences of accepting a twenty-seven-year offer, a firm

offer would have materialized. In light of the case law discussed

16
above, we conclude that the district court erred by focusing

exclusively on the existence of a firm offer.

¶ 32 This error affected the court’s analysis regarding the deficient

performance prong too. Because the court determined that Evans’s

claim required proof of a firm offer, it reasoned that counsel did not

have any duty to advise Evans about the “possible” offer. In other

words, because only a firm offer has constitutional significance,

counsel’s performance during plea negotiations was constitutionally

irrelevant until such time as a firm offer was extended.

¶ 33 That reasoning cannot be squared with well-settled law. The

right to effective assistance of counsel extends to “the plea-

bargaining process,” Lafler, 566 U.S. at 162, including the

negotiations leading to an offer, see Padilla v. Kentucky, 559 U.S.

356, 373 (2010) (“[W]e have long recognized that the negotiation of a

plea bargain is a critical phase of litigation for purposes of the Sixth

Amendment right to effective assistance of counsel.” (emphasis

added)). Neither the Colorado appellate courts nor the Supreme

Court has ever “cabined th[e] right [to effective assistance of

counsel] to negotiations that take place only after an offer has been

made.” Byrd, 940 F.3d at 255. Viewing the entire plea bargaining

17
process as a critical stage makes sense because if soft offers

generally precede firm offers, counsel’s advice about the soft offer

will often determine whether a firm offer is ultimately extended.

¶ 34 Accordingly, we conclude that the court applied the wrong

legal standard with respect to both the deficient performance and

prejudice prongs of the Strickland analysis. The question, then, is

whether, applying the correct legal standard, Evans’s claim

nonetheless fails as a matter of law. If it does, we can affirm the

district court’s order on other grounds. See People v. Taylor, 2018

COA 175, ¶ 8.

3. Applying the Correct Legal Standard, Evans’s Claim Does Not
Fail as a Matter of Law and Therefore a Remand Is Required

¶ 35 On this record, we cannot say that, if analyzed under the

proper legal standard, Evans’s claim necessarily fails.

¶ 36 Turning first to deficient performance, the claim fails as a

matter of law only if counsel never has an obligation to advise a

defendant about parole eligibility. That is the People’s argument on

appeal, but we think that argument goes too far. Whether such an

obligation exists depends on “the factual circumstances of the

particular case,” including whether parole eligibility advice was

18
required under the prevailing standards of minimally acceptable

professional conduct at the relevant time, People v. Chalchi-Sevilla,

2019 COA 75, ¶ 19 (citation omitted), and whether counsel “ha[d]

reason to believe” that the collateral issue of parole eligibility “[wa]s

highly significant to [the] client’s decision” to accept or reject an

offer, People v. Joslin, 2018 COA 24, ¶ 11.

¶ 37 Some evidence presented at the Rule 35(c) hearing suggested

that counsel had a duty to advise Evans about his parole eligibility.

Evans’s expert testified that when a young person is confronted

with an offer of a sentence that amounts to “more [years] than [he

has] lived,” defense counsel has an “even . . . higher obligation” to

explain parole eligibility, because the difference between the

sentence imposed and the sentence likely to be served “is a huge

influence on whether [the client] accept[s] the plea bargain.”

¶ 38 Evans’s testimony suggested that counsel knew or should

have known that parole eligibility was an important factor in his

decision to reject the “possible” offer. Evans explained that because

he had no prior adult convictions, he misunderstood how much

time he would serve under a twenty-seven-year offer — a

misunderstanding that was communicated to counsel when he told

19
her that he could not accept the deal because he would be fifty

years old upon his release from prison. And he said that, if he had

known about parole eligibility, he would have accepted a twenty-

seven-year offer “[a] million percent.”

¶ 39 Because the district court determined that counsel had no

duty to advise on a “possible” offer, it did not make any findings

concerning the importance of parole eligibility in this case. And

given the evidence, we cannot say how the district court would have

resolved this prong of the Strickland test.

¶ 40 That brings us back to the prejudice prong. Applying the

correct legal standard, the first question is whether the evidence

could support a finding that, absent counsel’s errors, there is a

reasonable probability that the prosecution would have extended a

firm offer. The district court could have made such a finding.

¶ 41 First, Evans’s expert testified that “most soft offers become

hard offers if the client comes back and says, ‘Yeah, I’ll take that.’”

That testimony comports with common sense. If the prosecution

floated a soft offer of twenty-seven years to make sure the parties

were on the same page, and Evans expressed an interest in

20
accepting the offer, it seems likely that a firm offer would have been

forthcoming.

¶ 42 Second, the same prosecutor extended a twenty-five-year offer

to Lanctot, the shooter, in exchange for his plea to conspiracy to

commit second degree murder. (In fact, because the plea agreement

required that the sentence run concurrent to a previously imposed

sentence, as discussed supra ¶ 8 n.2, the twenty-five-year sentence

was effectively a ten-year sentence.) An offer to a codefendant can

be strong evidence that the prosecution would have made a similar

offer to the defendant. See, e.g., Byrd, 940 F.3d at 258; see also

United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015)

(a defendant can show a reasonable probability that he could have

negotiated a better plea offer by identifying cases where the

prosecution extended more favorable offers to similarly situated

defendants).

¶ 43 The next question is whether the evidence could support a

finding that, if he had been competently advised, Evans would have

accepted a twenty-seven-year offer. The district court did not

answer this question, and the People do not address it on appeal.

The issue is complicated by the fact that Evans asserted two claims

21
concerning counsel’s performance that he said deprived him of the

ability to properly evaluate the attractiveness of the soft offer —

failure to inform him of parole eligibility and failure to advise him of

his exposure under a complicity theory of liability. (At oral

argument, the People acknowledged that these two claims “fold into

each other.”) The court granted a hearing only on the first claim

but for reasons that we explain below, we conclude that Evans was

entitled to a hearing on the complicity claim as well.

¶ 44 Even setting aside the complicity claim, the record contains

some evidence corroborating Evans’s testimony that, but for

counsel’s failure to correct his misunderstanding about parole

eligibility, he would have accepted the offer. See People v. Sifuentes,

2017 COA 48M, ¶ 20 (“Some objective evidence must corroborate

the defendant’s testimony that he would have made a different

decision about the plea if he had been properly advised.”).

¶ 45 Disparities between the actual sentence the defendant faced

and the sentence he could have received if his counsel had been

effective “are an important factor in the reasonable-probability

inquiry where a defendant claims he would have accepted a plea

but for his counsel’s error.” Baker v. United States, 109 F.4th 187,

22
197 (3d Cir. 2024); cf. People v. Carmichael, 206 P.3d 800, 807

(Colo. 2009) (considering the disparity between the sentence

exposure as represented by defense counsel and the actual

exposure the defendant faced by going to trial). Here, the disparity

was indisputably substantial: twenty-seven years (not accounting

for parole eligibility) versus life in prison without the possibility of

parole. Even considering just the disparity between the possible

offer’s sentence as represented by counsel — twenty-seven years —

and the actual period of incarceration Evans said he would likely

serve — about fifteen years — that forty-five percent difference

provides some corroboration of Evans’s testimony.

¶ 46 Moreover, Evans was “affirmatively pursuing a plea bargain,” a

circumstance that “lends credibility to [his] testimony that he was

amenable to a plea bargain and would have accepted an offer, had

he been properly counseled.” Carmichael, 206 P.3d at 807. In fact,

defense counsel’s notes showed that Evans had made a counteroffer

of fifteen years, which corroborates his testimony that he would

have taken the twenty-seven-year offer if he had known that, as a

practical matter, it could result in a sentence closer to fifteen years.

23
¶ 47 Finally, the expert testified that once an offer is accepted, it is

rare for a prosecutor to withdraw it or for the court to reject it.

¶ 48 In sum, we conclude that the district court applied the wrong

legal standard in denying Evans’s parole eligibility claim. And

because, on this record, the claim does not fail as a matter of law,

we must remand the case to the district court for further

proceedings. On remand, the court should determine whether, but

for counsel’s errors, there is a reasonable probability that (1) a firm

and lawful offer6 would have been extended; (2) Evans would have

accepted the offer; (3) the offer would have been presented to and

accepted by the court; and (4) Evans’s sentence under the plea offer

would have been less severe than the sentence that was imposed.

See Lafler, 566 U.S. at 164.

6 The district court found that the prosecution could not have

offered a twenty-seven-year sentence in exchange for a guilty plea to
felony murder because, at the time of Evans’s trial, a felony murder
conviction carried a mandatory sentence of life without parole.
True, but we note that Lanctot pleaded guilty to conspiracy to
commit second degree murder, a charge not included in the grand
jury’s indictment, and Evans recalled that the prosecution’s soft
offer was based on a plea to second degree murder.

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C. Complicity Claim

1. Rule 35(c) Proceedings

¶ 49 The jury was instructed on felony murder in accordance with

section 18-3-102(1)(b), C.R.S. 2007, which provided that a person

commits felony murder if, “[a]cting either alone or with one or more

persons, he . . . commits or attempts to commit . . . burglary, . . .

and, in the course of or in furtherance of th[at] crime . . . , or of

immediate flight therefrom, the death of a person . . . is caused by

anyone.” Thus, if the defendant did not commit the predicate

offense (in this case, burglary), he cannot be convicted of felony

murder. Doubleday v. People, 2016 CO 3, ¶ 22.

¶ 50 The prosecution’s theory was that Evans could be held

accountable for the victim’s murder because he was an accomplice

to the burglary. Evans defended on the ground that he was not

present at the scene of the burglary, so he could not be guilty of

murder.

¶ 51 In his Rule 35(c) motion, Evans alleged that trial counsel

provided ineffective assistance by failing to explain his potential

exposure as an accomplice. He said that, as a result, he did not

understand that he could be convicted of felony murder under a

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complicity theory. That misunderstanding, along with his lack of

information about parole eligibility, led him to reject the plea offer.

¶ 52 The district court denied this claim without a hearing.

Focusing on one allegation in the motion, the court summarized

Evans’s averments as a claim that, “because of trial counsel’s

failure to explain complicity, [he] believed he could not be convicted

of felony murder because he did not shoot the victim.” Having

framed the claim that way, the court reasoned that counsel’s failure

to explain complicity could not have prejudiced Evans because the

indictment put Evans on notice that he could be found guilty of

felony murder even if he did not shoot the victim. In other words,

as the People explained at oral argument, the district court

determined that Evans’s specific allegation — that he was unaware

he could be convicted of felony murder as a non-shooter — did not

implicate complicity at all, because even without a complicity

instruction, Evans could be convicted of felony murder as a

principal despite not shooting the victim.

2. The Court Erred by Summarily Denying the Complicity Claim

¶ 53 We might agree with the district court’s resolution of this claim

if Evans’s allegation about not being the shooter had been

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presented in isolation. That is, if Evans had alleged only that,

because he was not properly advised, he did not know he could be

convicted of felony murder as a non-shooter, we might concur that

the indictment (and incorporated statutory elements) sufficiently

conveyed that information.

¶ 54 But in context, Evans’s claim was not that he was unaware of

his potential exposure as a principal under the felony murder

statute. His claim was that the prosecution had secured a felony

murder conviction on a complicity theory and his lawyer had never

advised him of that possibility. According to Evans, the lawyer’s

failure to explain his exposure under that alternative theory of

liability meant that he overestimated his chances at trial and, as a

result, rejected the soft offer.

¶ 55 Evans’s allegations are sufficient to warrant a hearing.

¶ 56 Defense counsel has a duty to accurately advise a client

“regarding the attractiveness of the plea bargain in relation to the

risks of going to trial.” Carmichael, 206 P.3d at 806. That duty, in

turn, effectuates the defendant’s “right to make a reasonably

informed decision whether to accept a plea offer.” Id. (quoting

United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). A lawyer who

27
fails to inform her client of the relevant law abdicates her duty

under the Sixth Amendment and performs deficiently. Lockhart,

474 U.S. at 62 (White, J., concurring in the judgment).

¶ 57 In People v. Hunt, 2016 COA 93, ¶¶ 8, 31, a division of this

court held that the defendant was entitled to a hearing on his claim

that counsel had erroneously advised him that he could be found

guilty of murder as a complicitor, resulting in his acceptance of a

plea offer. The division concluded that because the facts as

presented at the providency hearing would not have supported a

conviction under a complicity theory, “any failure on the part of plea

counsel to so advise [the] defendant could have constituted deficient

performance.” Id. at ¶ 31.

¶ 58 The People, adopting the district court’s view, argue that Hunt

is inapposite because, in that case, the defendant alleged that his

counsel affirmatively misled him about his possible exposure as a

complicitor, and here, Evans alleged that his lawyer failed to advise

him about complicity at all. The Hunt division did not find that

distinction relevant and neither do we. In ordering a remand, the

Hunt division explained that a hearing was necessary to determine

whether counsel had “misadvised” or “failed to properly advise” the

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defendant about complicity, id. at ¶ 32 — either way, counsel’s

failure could support a finding of ineffective assistance of counsel.

¶ 59 This case is the inverse of Hunt. If Evans’s lawyer should have

properly advised him about complicity but failed to, and, as a

result, Evans rejected a soft offer that could have developed into a

firm offer, then he may be entitled to relief. See Quintana v.

Chandler, 723 F.3d 849, 854 (7th Cir. 2013) (explaining that

counsel’s “representation would cause constitutional problems” if

the defendant “rejected his plea on a misunderstanding that he

would not be guilty because he was not the principal,” but finding

that counsel had properly advised the defendant on accomplice

liability); People v. McCauley, 821 N.W.2d 569 (Mich. 2012) (mem.)

(disagreeing with the court of appeals’ remedy but affirming its

conclusion that counsel provided ineffective assistance by failing to

explain complicitor liability to the non-shooter defendant because,

without the information, he could not make an informed decision

whether to accept or reject the plea offer); Wanatee v. Ault, 39 F.

Supp. 2d 1164, 1172-73 (N.D. Iowa 1999) (in light of the facts of the

case, counsel’s failure to advise the defendant about aiding and

abetting liability constituted deficient performance).

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¶ 60 And, for the reasons discussed above, we reject the People’s

argument that Evans cannot establish prejudice because no firm

plea offer was extended. Whether there is a reasonable probability

that the soft offer would have become a firm offer must be

determined on remand.

¶ 61 Accordingly, we conclude that Evans is entitled to an

evidentiary hearing on his claim that counsel provided ineffective

assistance by failing to advise him that he could be convicted under

a complicity theory.

III. Disposition

¶ 62 The district court’s orders are reversed and the case is

remanded for further proceedings.

JUDGE GROVE and JUDGE PAWAR concur.

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