Peo v. Najera

19CA1043 Peo v Najera 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1043

Jefferson County District Court No. 15CR2261

Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Onesia Ann Najera,

Defendant-Appellant.

ORDER AFFIRMED

Division VII

Opinion by JUDGE GROVE

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 24, 2021

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Onesia Ann Najera, Pro Se

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¶ 1 Defendant, Onesia Ann Najera, appeals the postconviction

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

I. Background

¶ 2 In 2015, Najera was charged with two counts of child abuse

resulting in death after her disabled grandchild, who was in her

care, drowned in a bathtub. As part of a plea agreement with the

prosecution, she pleaded guilty to an added count of child abuse

resulting in death pursuant to section 18-6-401(1)(a), (7)(a)(II),

C.R.S. 2021. The original counts were dismissed.

¶ 3 The presumptive sentencing range for Najera’s conviction was

four to sixteen years, but as part of the plea agreement she

stipulated to an aggravated range sentence with a twenty-year

sentencing cap. The trial court sentenced her to a term of twenty

years in the custody of the Department of Corrections.

¶ 4 Najera did not directly appeal her conviction, but she

subsequently filed the timely Crim. P. 35(c) motion that is the

subject of this appeal. The postconviction court denied the motion

in a written order without appointing counsel, serving the motion

on the prosecuting attorney, or holding a hearing. See Crim. P.

35(c)(3).

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II. Analysis

¶ 5 Najera’s opening brief identifies seven issues for our review.

As we discuss further below, we decline to consider one of them

(Issue 6) because Najera did not raise it in her postconviction

motion. We group Najera’s remaining arguments into four main

categories: (1) arguments related to whether the trial judge should

have recused herself (Issue 1); (2) arguments related to her sentence

(Issues 2-4); (3) arguments related to the voluntariness of her plea

(Issue 5); and (4) arguments related to defense counsel’s

investigation (Issue 7). To the extent that Najera raises sub-issues,

we address them as part of the main category where the argument

appears in the opening brief.

A. Standard of Review and Applicable Law

¶ 6 We review de novo a postconviction court’s summary denial of

a postconviction motion. People v. Trujillo, 169 P.3d 235, 237 (Colo.

App. 2007).

¶ 7 “In order to prevail on an ineffective assistance of counsel

claim, a defendant must prove that 1) counsel’s performance was

deficient and 2) the deficient performance prejudiced the defense.”

Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing

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Strickland v. Washington, 466 U.S. 668, 687 (1984)). “An ineffective

assistance claim will not succeed if a defendant fails to prove either

prong of the test.” People v. Villarreal, 231 P.3d 29, 33 (Colo. App.

2009), aff’d on other grounds, 2012 CO 64.

¶ 8 A defendant is entitled to an evidentiary hearing on her motion

when she alleges facts that, if true, would entitle her to relief under

Rule 35(c). White v. Denver Dist. Ct., 766 P.2d 632, 634-35 (Colo.

1988). But a district court may deny a Rule 35(c) motion without a

hearing when the defendant’s allegations are bare and conclusory;

when the allegations do not warrant postconviction relief, even if

true; when the claims raise only an issue of law; or when the record

directly refutes the defendant’s allegations. People v. Venzor, 121

P.3d 260, 262 (Colo. App. 2005).

B. Unpreserved Claim

¶ 9 For the first time on appeal, Najera asserts that the prosecutor

committed misconduct by “knowingly suppl[ying] false information

onto an official document and that this document was signed an[d]

accepted by the Court making it part of Ms Najera’s perman[en]t

court record and that the Prosecution did this for the sole purpose

of prejudicing the Defendant.” Najera concedes that she did not

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raise this issue in her postconviction motion, but states that she

failed to do so because she “had not yet reviewed the Court record

of her case.”

¶ 10 We will not consider for the first time on appeal issues that

were not raised in the underlying Crim. P. 35(c) motion. People v.

Huggins, 2019 COA 116, ¶ 17. Because Najera concedes she did

not raise this claim in her postconviction motion, we do not

consider it further.

C. Recusal

¶ 11 Najera contends that she was entitled to postconviction relief

because her attorney provided ineffective assistance by failing to

move to disqualify the trial judge and, notwithstanding defense

counsel’s failure to file such a motion, the trial judge did not recuse

herself sua sponte. She alleged in her postconviction motion that

the trial judge should have recused herself because the judge had

presided over two previous criminal cases involving the victim and

his mother (Najera’s daughter), and that defense counsel should

have filed a motion to disqualify the judge after Najera informed

counsel of this history.

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¶ 12 The postconviction court, with the same judge sitting who had

presided over the plea proceedings, ruled that it was unnecessary to

hold a hearing on this claim for two reasons. First, the cases in

question occurred seven and ten years before charges were filed in

this case, and the judge had no memory of them, and second, what

a judge learns in her judicial capacity is generally not sufficient

grounds for disqualification. See, e.g., Smith v. Dist. Ct., 629 P.2d

1055, 1057 (Colo. 1981). The court thus concluded that Najera

could not have been prejudiced by defense counsel’s failure to move

for disqualification.

¶ 13 We agree with this ruling. Without more, the fact that the trial

judge had presided over two cases involving criminal charges

against the child’s mother several years earlier would not have

established grounds for disqualification. Thus, as the

postconviction court concluded, a motion to disqualify the trial

judge on the grounds that Najera recites in her postconviction

motion and on appeal would have been bound to fail. And because

any such efforts would have been fruitless, Najera was not

prejudiced by defense counsel’s decision not to pursue

disqualification.

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D. Sentence

¶ 14 Najera raises three arguments related to her sentence. We

address each in turn below.

1. Aggravation

¶ 15 First, Najera asserts that the trial court “abuse[d] its discretion

when it applied unknown ‘caselaw’ against the defendant for the

purpose of aggravating the defendant without having to put forth

any facts or evidence on the record that would support a sentence

in the aggravated range.” This appears to be an “illegal manner”

claim. See People v. Bowerman, 258 P.3d 314, 316 (Colo. App.

2010) (holding that a sentence is imposed in an illegal manner if the

court ignores essential procedural rights or statutory considerations

when imposing the sentence). If so, it is time barred because it was

not filed within 126 days of sentencing. See Crim. P. 35(a), (b)(1).

¶ 16 Even if it were not time barred, however, Najera’s argument

would fail on the merits. The record demonstrates that she

stipulated to the presence of aggravating circumstances as part of

her written plea agreement and again on the record at the

providency hearing. Notwithstanding the fact that the prosecutor

did not have a precise citation to the relevant case law until the end

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of the hearing, Najera’s stipulation was sufficient to support her

aggravated range sentence. See People v. Shepard, 98 P.3d 905,

906 (Colo. App. 2004).

2. Blakely Requirements

¶ 17 Next, Najera contends that her sentence is unconstitutional

because the court did not put on the record the Blakely-compliant

or Blakely-exempt facts that it used “for the purpose of imposing a

sentence in the aggravated range.” See Blakely v. Washington, 542

U.S. 296 (2004).

¶ 18 If the trial court imposes a sentence in the aggravated range, it

is generally required to state on the record the facts that support

the aggravated range sentence. § 18-1.3-401(7), C.R.S. 2021.

Under Blakely, aggravated sentencing under 18-1.3-401(6) may

only be based on at least one of four kinds of facts, including facts

admitted by the defendant. Lopez v. People, 113 P.3d 713, 719

(Colo. 2005) (discussing Blakely requirements). Here, as noted,

Najera stipulated to the existence of aggravating facts. And “where

. . . the defendant stipulates to a sentence in the aggravated range

as part of a plea agreement, the defendant is also stipulating that

sufficient facts exist to warrant an aggravated sentence, and the

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trial court need not make additional findings on the record.”

Shepard, 98 P.3d at 906.

3. Advisement

¶ 19 Najera’s last sentence-related contention is that “she was not

given [a] proper advisal by the Trial Court of her right to have a jury

determine the aggravating fact(s) of her case, and Ms. Najera did

not verbally waive that right before the court.” This claim is refuted

by the record. In her “Petition to Enter Plea of Guilty,” Najera

confirmed that she was stipulating to the existence of extraordinary

aggravating circumstances and “agree[ing] to waive [her] right to

have a jury make a determination of extraordinary aggravation.”

Likewise, at the providency hearing, the trial court advised Najera

that if she “decide[d] to take the plea agreement . . . then you’re

waiving your right to trial.” And, discussing the stipulation, the

court informed Najera that it meant that she was “agreeing to the

existence of extraordinary aggravating circumstances, and . . .

asking that the Court make a finding of extraordinary aggravating

circumstances, and . . . waiving [her] right to have a jury make that

determination.” Because Najera confirmed that she understood the

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rights that she was giving up in exchange for her plea agreement,

she is not entitled to postconviction relief on this claim.

E. Voluntary Plea

¶ 20 Najera contends that her attorneys were ineffective because

they “allow[ed] the Prosecution to threaten the defendant with other

unrelated charges if the defendant didn’t agree to stipulate to

aggravation.” As we understand the argument, Najera alleges that

after the prosecution backed away from an early, more lenient offer,

she felt pressured into taking a less favorable plea bargain by the

possibility of a more severe sentence at trial and a threat that the

prosecutor would charge Najera’s daughter with offenses in an

unrelated case.

¶ 21 Even if these allegations are true, they do not suggest deficient

performance on the part of defense counsel. All defense counsel

allegedly did was to communicate the conditions of the

prosecution’s plea offer — conditions that only the prosecution

could dictate — to Najera. By candidly relaying that information

and counseling Najera as to pros and cons of accepting the plea

offer, Najera’s attorneys performed exactly as they should have.

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¶ 22 Moreover, Najera’s claim of coercion is refuted by the record.

At the providency hearing, she denied that “anyone [had] tried to

force [her] or coerce [her] to say guilty today,” stated that it was her

“free and voluntary decision to plead guilty,” and said that she had

chosen to do so because she wanted to “accept[] responsibility” for

her actions, and not just avoid trial. Accordingly, because the

voluntariness of her plea is established by the record, the

postconviction court correctly declined to hold a hearing on this

claim.

1

F. Investigation

¶ 23 Last, Najera contends that her attorneys were ineffective for

failing to conduct an adequate investigation of the facts and

circumstances surrounding the charged offense.

¶ 24 Criminal defendants are entitled to sufficiently thorough

pretrial investigations “to develop potential defenses and uncover

1

To the extent that Najera argues on appeal that the trial court

“altered Ms. Najera’s plea agreement after Ms. Najera signed it” and

that the court improperly participated in the plea bargaining

process, we decline to address these issues because Najera did not

raise them in her postconviction motion. See People v. Huggins,

2019 COA 116, ¶ 17.

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facts relevant to guilt and punishment.” People v. Davis, 849 P.2d

857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see

Davis, 871 P.2d at 773 (“[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.”). When reviewing a claim of

ineffective assistance, the court must evaluate counsel’s alleged

failure to investigate for reasonableness, “applying a heavy measure

of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

However, mere disagreement as to trial strategy, including what to

investigate, will not support a claim of ineffective assistance. Davis,

849 P.2d at 861; People v. Apodaca, 998 P.2d 25, 29 (Colo. App.

1999).

¶ 25 “A defendant is entitled to pretrial investigation sufficient to

reveal potential defenses and facts relevant to guilt or penalty.”

People v. Pendleton, 2015 COA 154, ¶ 33. But mere speculation

about what information a different investigative approach may have

yielded is insufficient to establish ineffective assistance. Id. at ¶ 34.

¶ 26 We are not persuaded that Najera should have received a

hearing based on her claim that defense counsel failed to conduct

an adequate pretrial investigation “relative to Count One,” as she

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argues in her opening brief — not least because Count One was

dismissed as part of her plea agreement. But even if we read

Najera’s contentions more broadly, she is still not entitled to a

hearing for at least two reasons.

¶ 27 First, as the postconviction court pointed out, although the

claim of inadequate investigation in Najera’s postconviction motion

focused largely on whether she had been intoxicated, the “factual

basis Defendant admitted to for her plea did not in any way

reference her sobriety or intoxication at the time of the incident.”

Thus, the postconviction court concluded, the investigation along

the lines of what Najera claims should have been done would not

have resulted in exculpatory evidence for the charge of which she

was eventually convicted.

¶ 28 Second, aside from making general representations in her

opening brief that “[c]ounsel did not raise evidence that was

material, trustworthy and available,” Najera does not specify what

would have been revealed by additional investigation on her

attorneys’ part. She did not identify any exculpatory evidence or

point to evidence that would have been discovered had her

attorneys conducted any more investigation. And while she did

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name some potential witnesses counsel could have interviewed, she

did not specify what they would have said or how that would have

impacted her decision to plead guilty. Therefore, she was not

entitled to a hearing on this basis. See People v. Stovall, 2012 COA

7M, ¶ 29 (Speculative assertions are “insufficient to meet” a

postconviction applicant’s “burden of alleging facts that would allow

the postconviction court to find that he was prejudiced by counsel’s

alleged failure to investigate.”).

III. Conclusion

¶ 29 The order is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.