Peo v. Greer

24CA0127 Peo v Greer 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0127
City and County of Denver District Court No. 22CR5645
Honorable Christine C. Antoun, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Derrick Greer,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE JOHNSON
Welling and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor
General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-
Appellee

Phoebe W. Dee, Alternate Defense Counsel, Basalt, Colorado, for Defendant-
Appellant
¶1 Defendant, James Derrick Greer (Greer), appeals the

postconviction court’s order denying his Crim. P. 35(c) motion

without a hearing. Greer contends that the court erred by

concluding that he did not establish a claim for ineffective

assistance of plea counsel. He also contends that the court applied

the wrong legal standard. We affirm.

I. Background

¶2 The prosecution charged Greer with nine counts of forgery and

one count of theft. Greer resolved the underlying case, Denver

District Court Case No. 22CR5645, and a related matter, Denver

District Court Case No. 22CR1976, in a global disposition.1 The

public defender’s office represented Greer in both matters. As part

of the global agreement, he pled guilty to one count of theft in Case

No. 22CR5645 and one count of check fraud in Case No.

22CR1976.

¶3 The district court sentenced Greer to five years in the custody

of the Department of Corrections (DOC) on the theft count and to

1 Case No. 23CA2147 is related to but not consolidated with this

case. The related case deals with Greer’s challenges of the
summary denial of his postconviction motions filed in Denver
District Court Case No. 22CR1976.

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two years in the custody of DOC on the check fraud count, the

sentences to run concurrently.

¶4 Greer filed three Crim. P. 35(c) motions in this case, which

were identical to the three filed in the related case. The court

summarily denied Greer’s motions without appointing counsel,

requiring a response from the prosecution, or holding a hearing.

Greer now appeals.

II. Standard of Review

¶5 We review a district court’s denial of a Crim. P. 35(c) motion

without a hearing de novo. People v. Cali, 2020 CO 20, ¶ 14.

Whether the postconviction court applied the correct legal standard

also presents a question of law that we review de novo. A.R. v. D.R.,

2020 CO 10, ¶ 37.

III. Applicable Law

¶6 A court may deny a Crim P. 35(c) motion without an

evidentiary hearing if the motion, files, and case record establish

the defendant is not entitled to relief. Ardolino v. People, 69 P.3d

73, 77 (Colo. 2003). Thus, a summary denial of a postconviction

motion is appropriate if (1) the allegations are bare and conclusory;

(2) the allegations, even if true, do not warrant postconviction relief;

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or (3) the record directly refutes the defendant’s claims. See White

v. Denv. Dist. Ct., 766 P.2d 632, 634 (Colo. 1988); People v. Venzor,

121 P.3d 260, 262 (Colo. App. 2005); People v. DiGuglielmo, 33 P.3d

1248, 1251 (Colo. App. 2001). Evidentiary support is not necessary

for a Rule 35(c) motion to survive summary denial, but bare

assertions are insufficient. See People v. Bossert, 772 P.2d 618,

620 (Colo. 1989).

¶7 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino, 69 P.3d at 76. The right to

effective assistance of counsel encompasses counsel during the

plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162

(2012). To prevail on an ineffective assistance of counsel claim, a

defendant must show that (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced the defendant.

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

Washington, 2014 COA 41, ¶ 18. If the defendant makes an

insufficient showing on one prong, the court need not address the

other. Strickland, 466 U.S. at 697.

¶8 To establish deficient performance, the defendant must show

that counsel’s representation “fell below an objective standard of

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reasonableness.” Id. at 687-88. To establish prejudice in the

context of plea bargaining, the defendant must show an objectively

reasonable probability that, but for counsel’s unprofessional errors,

he would not have pled guilty and instead insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); People v. Vicente-

Sontay, 2014 COA 175, ¶ 20.

IV. Analysis

¶9 Greer contends that the court erred by summarily denying his

postconviction motions because he had adequately alleged that his

counsel was ineffective by (1) misadvising or failing to advise him of

his sentencing exposure if he accepted the plea offer and (2) failing

to inform the court that he wanted to withdraw his plea. He also

contends that the court applied the wrong legal standard in

assessing whether he had adequately alleged prejudice under the

second prong of Strickland. We discern no error.

A. Misadvising or Failing to Advise of Plea Terms

¶ 10 Greer contends that his counsel either misadvised him or

failed to advise him at all on the sentencing range of the plea.

Specifically, he alleges that due to his wife’s ailing health, he had

told his counsel that he wanted a plea agreement that limited the

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court’s sentencing options to probation or community corrections,

and that if he had known a prison term was possible, he would not

have agreed to it.

¶ 11 In summarily denying this claim, the postconviction court

stated, “[A] sentence to probation or Community Corrections would

have never been an option in [Greer]’s case.” At least as to

probation, we are unsure how the court came to this conclusion.

We agree with the Attorney General that the plea agreement did not

preclude probation. As the presentence investigation (PSI) report

reflects, Greer was eligible for probation, though if the court

approved it, the probation department recommended certain

conditions. As to Greer’s contention that he may have been eligible

for community corrections, however, the PSI report indicated that

he would be ineligible for such a sentence if he had any pending

felony dispositions that had not been resolved, was on a deferred

judgment or sentence, had a misdemeanor conviction, or was

serving a mandatory sentence. Greer, however, did not allege in his

postconviction motion that none of these conditions existed at the

time of his sentencing. Therefore, based on the existing record, it

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appears that Greer was ineligible for a community corrections

sentence.

¶ 12 Regardless of the postconviction court’s misunderstanding, its

summary denial may still be affirmed for two reasons. See People v.

Gutierrez-Vite, 2014 COA 159, ¶ 11 (“We may affirm a trial court’s

ruling on grounds different than those employed by the court, so

long as the record supports them.”).

¶ 13 First, Greer’s claim fails because he does not specifically allege

what his counsel advised him or did not advise him about his

potential sentencing exposure. Indeed, Greer cannot have it both

ways. Either his counsel misadvised him or failed to advise him,

and he provides no specific facts to support how he was misled or

misadvised.

¶ 14 Second, and more importantly, the record refutes Greer’s

claim. Greer ignores that the plea agreement he signed specifically

sets forth that a sentence to the DOC was a possibility, the

sentence was left “open” to the court, and Greer was subject to

enhanced sentencing. And during the providency hearing, the

court told Greer what the presumptive and enhanced sentencing

ranges to the DOC were for the offenses to which Greer pled guilty

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and that “the sentence will be open for [the] Court’s determination.”

Greer confirmed that he understood these provisions of the plea

agreement.

¶ 15 At sentencing, Greer’s counsel argued for probation, noting

that Greer had a sick wife. The prosecution argued for a prison

sentence given that these were Greer’s “tenth and eleventh felony

charges,” which supported that Greer was “by no means ready for a

community-based sentence” because he would not stop offending.

Greer addressed the sentencing court, saying that “if allowed to [be]

given the chance to return to the community,” he would care for his

family and “prove to everybody that” “he was a different person.”

Greer’s own words reflect that he understood that a non-prison

sentence was not guaranteed. Accordingly, the record refutes

Greer’s claim that he believed he was guaranteed a non-prison

sentence as part of his plea agreement or that defense counsel did

not advise him that a prison sentence was a possible outcome.

¶ 16 Based on this record, we conclude that the postconviction

court did not err by summarily denying Greer’s motions, as he

failed to adequately allege that plea counsel’s performance was

deficient because the record establishes that Greer understood the

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sentencing possibilities in the plea agreement and that he made an

informed decision. See People v. Stovall, 2012 COA 7M, ¶ 13 (“[A]

defendant may challenge [a] guilty plea on the grounds of ineffective

assistance of counsel when that challenge goes to the issue of

whether the plea was knowingly, voluntarily, and intelligently

entered . . . .”).

B. Failing to Move to Withdraw the Plea

¶ 17 Next, Greer claims that he repeatedly told his counsel through

text messages and facial expressions in court that he wanted to

withdraw his plea when the court unexpectedly sentenced Greer to

the DOC. As a result, he claims that plea counsel was duty bound

and, therefore, ineffective by failing to file a motion to withdraw the

plea.

¶ 18 In denying the motion, the postconviction court reasoned that

counsel had no duty to file a motion to withdraw the plea because

the plea agreement explicitly contemplated a possible prison term.

And the court further reasoned that, even if such a motion had

been filed and Greer insisted on going to trial, given the plain terms

of the plea agreement, the facts alleged by Greer did not

demonstrate deficient performance of counsel.

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¶ 19 The postconviction court was correct in summarily denying

relief on this claim. To begin, it is not clear from Greer’s motion

when he asked plea counsel to withdraw his plea. If he asked

counsel ahead of sentencing, that shows Greer knew about a

possible prison term before the hearing, consistent with the terms

of the plea agreement but inconsistent with his other postconviction

claim. If, however, he alleges that he told plea counsel during the

sentencing hearing, there is no indication in the record that Greer

told his counsel to object at sentencing or that Greer raised the

issue with the court after sentencing. Regardless, as we have

already noted, because the plain terms of the plea agreement refute

Greer’s sentencing claim, his counsel did not engage in deficient

performance by failing to file a motion to withdraw the plea.

C. Applying the Incorrect Legal Standard

¶ 20 Finally, Greer contends the summary denial order should be

vacated because the postconviction court applied the wrong legal

standard. We acknowledge that, in its order, the postconviction

court initially stated the wrong standard of review. The court said

that Greer “must allege and then prove to a standard of the

preponderance of the evidence, specific facts which show both that

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his counsel’s performance fell below the standard of care and that

counsel’s ineffectiveness caused [him] prejudice.”

¶ 21 But the court later stated, “[t]o establish prejudice, a

defendant must show that ‘there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” And it cited Hill, 474 U.S. at 57, 59 —

as we did above — to support that a defendant must prove that, but

for counsel’s errors, there is a reasonable probability that he would

not have pled guilty but insisted on going to trial. Therefore, based

on our review of the entirety of the postconviction court’s order, we

are convinced that the postconviction court applied the correct legal

standard Cf. Washington, ¶ 28 (holding the postconviction court

used the correct burden of proof when it “initially stated that both

Strickland prongs had to be proven by a preponderance of the

evidence, [but] the court thereafter articulated and applied the

correct burden of proof” to the prejudice prong).

¶ 22 Moreover, Greer has not demonstrated how, even assuming

the court applied the wrong legal standard, the outcome of his

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claims would have been different.2 Indeed, based on our analysis in

Part IV.A and B above, the outcome would not have been different.

V. Conclusion

¶ 23 The order is affirmed.

JUDGE WELLING and JUDGE GROVE concur.

2 To the extent Greer raised any other issues in his postconviction

motions, he has not reasserted them on appeal, and, therefore, we
deem them abandoned. See People v. Osorio, 170 P.3d 796, 801
(Colo. App. 2007).

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