Peo v. Rabinkov

23CA1686 Peo v Rabinkov 02-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1686
City and County of Denver District Court No. 12CR922
Honorable James F. Hartmann, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leonid A. Rabinkov,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE GROVE
Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 12, 2026

Philip J. Weiser, Attorney General, Yaried A. Hailu, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant-
Appellant
¶1 Defendant, Leonid A. Rabinkov, appeals the postconviction

court’s order denying his claim of ineffective assistance of counsel.

We affirm.

I. Background

¶2 In 2012, police officers found George DeCurnou in front of his

apartment building, bleeding from his head and neck. DeCurnou

later died from his injuries.

¶3 During their investigation, police collected handwritten notes,

cell phone records, and fingerprints from DeCurnou’s apartment

suggesting that Rabinkov had been present around the time

DeCurnou was stabbed.1 They also found a bloody hammer and

spoke with a witness who called 911 after hearing DeCurnou yell at

someone to put down a knife. The investigation also yielded video

footage placing Rabinkov at the apartment around the time of the

incident.

¶4 Rabinkov was initially charged with attempted first degree

murder, first degree assault, and two sentence enhancers. After

1 Additional DNA evidence was gathered during the investigation,

but the results were either inconclusive or negative for Rabinkov’s
DNA.

1
DeCurnou died in the hospital, however, the People amended the

complaint, substituting attempted first degree murder with first

degree murder. Later, they dropped the other three charges.

¶5 During pretrial proceedings, Rabinkov’s defense team2 raised

concerns about Rabinkov’s competency to stand trial due to his

deafness and cognitive impairments. Counsel requested that the

competency exam be expanded to include “serious language,

cognitive, and or development deficiencies,” and that Rabinkov

complete specific cognitive tests to measure his verbal

understanding and working memory. Counsel also asked that

Rabinkov be evaluated by someone fluent in American Sign

Language (ASL) and familiar with deaf culture to better account for

the cultural, social, parenting, and educational issues Rabinkov

encountered in life.

2 Rabinkov was first represented by Deputy State Public Defenders

Rebekka Higgs and Kelly Meilstrup. Deputy State Public Defender
Demetria Trujillo had joined the team by the time Rabinkov’s
competency evaluation was released. Meilstrup and Higgs withdrew
as counsel several months after Rabinkov was declared competent
to proceed. Trujillo was then joined by Deputy State Public
Defender Shanelle Kindel, and the pair represented Rabinkov for
the remainder of the case.

2
¶6 The court ordered a competency evaluation to be completed by

the Colorado Department of Human Services and encouraged the

Department to have it “conducted by individuals who are familiar

with or have experience with issues affecting competency of deaf

individuals.”

¶7 Thomas Gray, Ph.D., a forensic psychologist who served as the

clinical coordinator of the court services department at the Colorado

Mental Health Institute at Pueblo, evaluated Rabinkov for

competency. He conducted the evaluation with the assistance of

ASL interpreters. There is no mention in his report of the requested

cognitive tests. Gray determined that Rabinkov did not have “a

mental or developmental disability that prevented him from

consulting with his lawyer within a reasonable degree of rational

understanding to assist in his defense or from having a rational and

factual understanding of the criminal proceedings.” He concluded

that Rabinkov was competent to stand trial.

¶8 Neither party requested a competency hearing or a second

evaluation. Rabinkov’s lawyers did not object to the court’s finding

that Rabinkov was competent to proceed.

3
¶9 Following plea negotiations that we discuss further below,

Rabinkov entered into a plea agreement and pleaded guilty to

second degree murder. The parties stipulated that he would be

sentenced to thirty-two years in the custody of the Department of

Corrections, plus five years of mandatory parole. The district court

accepted the plea agreement and sentenced Rabinkov accordingly.

¶ 10 In 2017, Rabinkov filed a motion alleging ineffective assistance

of counsel and requesting the appointment of postconviction

counsel. The court ordered that an attorney from the Office of

Alternate Defense Counsel (OADC) represent him. The order was

served digitally to Rabinkov’s first two defense attorneys — Rebekka

Higgs and Kelly Meilstrup — the Denver District Attorney’s Office,

and the Denver Public Defender’s Office. There is no indication that

it was served to the OADC. Records show that Rabinkov’s first two

attorneys never opened the document, but an unidentified

individual from the Denver Public Defender’s Office did.

¶ 11 Approximately three years later, Rabinkov contacted another

attorney on his defense team, Demetria Trujillo, about the court’s

order. Trujillo had not been aware of Rabinkov’s motion until she

received his letter, but she promptly emailed the order to the OADC

4
once she learned of it. The OADC then assigned Rabinkov

postconviction counsel, who filed a motion for postconviction relief

on his behalf.

¶ 12 Rabinkov’s motion asserted that his defense attorneys

provided ineffective assistance in three different ways: (1) by

destroying his case file, thus hindering his ability to seek

postconviction relief; (2) by failing to conduct an adequate

investigation of his cognitive deficits by consulting with experts who

could bolster potential defenses focused on competency, insanity, or

impaired mental condition; and (3) by failing to adequately advise

him on his plea deal and the potential consequences of trial. After

an evidentiary hearing, the postconviction court denied all of

Rabinkov’s claims in a detailed written order. Rabinkov now

appeals.

II. Standard of Review

¶ 13 A postconviction court’s ruling on a motion for postconviction

relief filed under Crim. P. 35(c) presents a mixed question of fact

and law. People v. Sharp, 2019 COA 133, ¶ 12. We defer to the

court’s findings of fact if they have record support, but we review

any legal conclusions de novo. Id. The postconviction court

5
determines the weight and credibility to be given to the testimony of

witnesses in a Crim. P. 35(c) hearing. People v. Hardin, 2016 COA

175, ¶ 39. Accordingly, “[w]here the evidence in the record

supports the findings and holding of the postconviction court that

presided over an evidentiary hearing, the judgment will not be

disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27.

III. Applicable Law

¶ 14 To prevail on a claim of ineffective assistance of counsel under

Crim. P. 35(c), a defendant must show that (1) counsel’s

performance was deficient and (2) counsel’s deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88

(1984).

¶ 15 Under the performance prong, a defendant must prove that

counsel’s representation fell below an objective standard of

reasonableness. Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

2007). However, there is a strong presumption that counsel’s

performance was within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689.

¶ 16 Under the prejudice prong, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s

6
unprofessional errors, the result of the proceeding would have been

different.” Id. at 694; People v. Garcia, 815 P.2d 937, 943 (Colo.

1991) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “A reasonable

probability means a ‘probability sufficient to undermine confidence

in the outcome.’” Hagos v. People, 2012 CO 63, ¶ 17 (quoting

Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003)).

IV. Case File

¶ 17 Rabinkov first argues that the postconviction court erred by

ruling that he had not suffered any prejudice due to his defense

counsel’s failure to preserve his case file. We disagree.

A. Legal Standards

¶ 18 Colo. RPC 1.16A(c)(3), as relevant here, requires a lawyer in a

criminal matter to retain a client’s file for five years from the date of

sentencing, “if the matter resulted in a conviction for [a] felony and

neither the conviction nor sentence was appealed.” If an attorney

has knowledge of pending or threatened proceedings related to the

matter, the client’s file should not be destroyed. Colo. RPC 1.16A

cmt. 4.

¶ 19 Before destroying a file, a lawyer must give written notice to

the client of their intent to do so. Colo. RPC 1.16A cmt. 5. The date

7
of destruction must be no less than thirty days after the notice is

given. Id. This requirement may be satisfied if the client is given

the lawyer’s written file retention policy during or after

representation of the client. Id. A lawyer may not, however, destroy

files if the attorney knows that there are proceedings pending or

threatened in the matter for which the lawyer created the files. Id.

¶ 20 The Office of the Colorado Public Defender’s internal policies

generally align with these rules, but they include one additional

requirement potentially relevant here: a file should be retained for

the life of the client if it contains results of DNA testing that

significantly impact the case.

B. Additional Facts

¶ 21 The Denver Public Defender’s Office destroyed Rabinkov’s file

in January 2020, six years after he was sentenced. It did so even

though Rabinkov had requested appointment of counsel to pursue a

postconviction motion, and the district court had issued an order

appointing an attorney from the OADC for that purpose. And, the

postconviction court found, there was no evidence that Rabinkov

either received a copy of the Public Defender’s Office’s file retention

8
policies or that the Public Defender’s Office had timely notified him

of its plans to destroy the file.

¶ 22 As we understand the postconviction court’s order, it either

found (or assumed without deciding) that the Public Defender’s

Office’s failure to notify Rabinkov about the pending destruction of

his file amounted to deficient performance. Despite that finding,

the court rejected Rabinkov’s claim because it found that Rabinkov

had failed to show that the destruction of the file prejudiced him.

See People v. Washington, 2014 COA 41, ¶ 20 (“If a court

determines that a defendant has failed to prove either prong of the

Strickland analysis, it may deny an ineffective assistance claim

without addressing the other prong.”).

¶ 23 As support for its conclusion, the court noted that Rabinkov’s

postconviction counsel had in fact received copies of the discovery

and had access to the court file. The only contents of the file

counsel did not receive were “any handwritten notes that were

created by his trial attorneys.” The court observed that, during the

evidentiary hearing, Trujillo testified about the details of her

9
representation.3 Trujillo’s testimony shed light on the reasoning

behind her decision-making, and postconviction counsel queried

her about pertinent information missing from Rabinkov’s file.

Accordingly, the court determined that Rabinkov’s claim of

prejudice was “purely speculative” and did not merit relief.

C. Analysis

¶ 24 Rabinkov contends that the postconviction court erred by

finding that he failed to show prejudice. He argues that trial

counsel’s handwritten notes were critical to his effort to show

ineffective assistance of counsel because they might have revealed,

among other things, (1) any advice that trial counsel provided;

(2) the number of times trial counsel met with Rabinkov; (3) if ASL

interpreters were present during meetings; (4) the reasoning behind

trial counsel’s strategic decisions; and (5) whether trial counsel had

concerns related to Rabinkov’s competency and mental state.

3 Trujillo was the only member of the defense team called as a

witness at the postconviction hearing. In its order denying
Rabinkov’s request for postconviction relief, the court noted,
“[P]resumably, [postconviction counsel] could have also interviewed
other members of his trial defense team.”

10
¶ 25 Although there were gaps in Trujillo’s recollection, her

testimony at the postconviction hearing both shed light on the

number of times she met with Rabinkov and confirmed the

presence of an ASL interpreter at each meeting. Trujillo also

discussed the plea negotiations, the strength of the prosecution’s

case, and potential defense strategies — including how Rabinkov’s

physical and mental difficulties could factor into Rabinkov’s defense

in a trial.

¶ 26 To the extent Rabinkov asserts that he was prejudiced by the

gaps in Trujillo’s recollection, we agree with the postconviction

court’s observation that postconviction counsel “presumably . . .

could have also interviewed other members of his trial defense

team” to fill in those gaps. More importantly, however, we agree

with the postconviction court’s conclusion that Rabinkov’s claim of

prejudice is speculative. See People v. Finney, 2012 COA 38, ¶ 66

(“We will affirm a trial court’s determination that the defendant was

not prejudiced when the evidence only provides speculative proof of

prejudice.”), aff’d, 2014 CO 38; People v. Chipman, 2015 COA 142,

¶ 63 (A speculative claim of prejudice cannot “form the basis for a

valid claim of ineffective assistance of counsel.”). In short, absent

11
any indication that attorney work product in the file would reveal

material strategic errors or omissions by the defense team not

already addressed by the other evidence in the record, we cannot

conclude that Rabinkov was prejudiced by the file’s destruction.

Accordingly, we discern no error in the postconviction court’s

determination that Rabinkov failed to prove he was prejudiced by

the destruction of his case file.

V. Experts

¶ 27 Rabinkov alleges that he received ineffective assistance of

counsel because his defense team did not consult with an expert

neuropsychologist or psychologist about his physical and cognitive

disabilities. He argues that, due to his attorneys’ failure to conduct

an adequate investigation — and their ensuing failure to inform the

prosecution and court that he likely suffers from congenital rubella

syndrome — they did not fully comprehend or communicate the

impact of his disabilities on (1) his competency to proceed; (2) his

potential defenses; or (3) the course of plea negotiations.

A. Testimony at the Evidentiary Hearing

¶ 28 At the evidentiary hearing, postconviction counsel called three

expert witnesses — a neuropsychologist, a medical expert, and an

12
expert on criminal defense — to discuss the defense team’s failure

to thoroughly investigate Rabinkov’s physical and cognitive

disabilities.

¶ 29 The psychological expert was a licensed clinical psychologist

specializing in neuropsychology with extensive experience

evaluating deaf and hearing-impaired individuals. To prepare for

her testimony, she reviewed medical records related to Rabinkov’s

case, including Gray’s initial competency evaluation, and also met

with Rabinkov by video for a total of nine hours with the assistance

of an ASL interpreter. She did not review the underlying facts of the

case nor interview any members of the defense team.

¶ 30 During their meetings, which took place approximately ten

years after the proceedings that led to Rabinkov’s guilty plea, the

psychologist administered a series of tests examining Rabinkov’s

perceptual reasoning, working memory, and mental processing

speed. Rabinkov’s scores were in the low average range, the inferior

range, and the lowest first percentile, respectively. Based on these

results, the psychologist opined that Rabinkov was incompetent to

proceed at the time he entered his guilty plea. She explained that,

due to Rabinkov’s cognitive deficiencies — which she said were

13
consistent with an individual diagnosed with congenital rubella

syndrome — he was likely unable to understand or retain complex

information, although he would be able to repeat information told to

him.

¶ 31 Rabinkov’s medical expert, a physician’s assistant, reviewed

Rabinkov’s medical history but did not meet with him personally.

Based on his review, he testified that Rabinkov likely suffered from

congenital rubella syndrome, which develops in utero when a

mother contracts rubella during pregnancy. He explained that a

definitive diagnosis was not possible because it requires a blood test

performed during a child’s first year of life, but he said that

Rabinkov — who was born and spent his childhood in Ukraine —

faced a greater risk of the disease due to the lower vaccination rates

among that population.

¶ 32 Describing the severity of Rabinkov’s condition, the medical

expert opined that Rabinkov displayed a “marked” manifestation of

congenital rubella syndrome, which is the highest level on the

spectrum when measuring the degree of symptoms. Rabinkov

suffered from ophthalmologic abnormalities, congenital heart

disease, and a hearing impairment. He also displayed

14
microcephaly — a condition where the skull diameter is more than

two standard deviations below the norm for his age, weight, and

sex — along with developmental delays. The expert said that

impacts from the disease include a diminished ability to engage in a

risk-benefit analysis and difficulties in assessing the potential

repercussions of certain actions. Rabinkov’s symptoms, in the

expert’s opinion, profoundly impacted his day-to-day life and likely

made him unable to competently make medical decisions on his

own behalf.

¶ 33 Rabinkov’s expert on criminal defense testified about the

adequacy of the defense team’s investigation into Rabinkov’s

condition. She reviewed Rabinkov’s court file, which included his

medical records and competency exam, but did not speak with

Rabinkov or any members of the defense team. She opined that

Rabinkov’s attorneys did not meet prevailing professional norms

because they failed to retain professional experts to further explore

his circumstances — including how congenital rubella syndrome

may have impacted his competency, his potential trial defenses, or

arguments in favor of mitigation in plea discussions or sentencing.

The expert explained that reasonably competent defense counsel

15
would have recognized the importance of Rabinkov’s disabilities to

the case, as well as the difficulties that those disabilities created for

attorney-client communications and, as a result, would have

conferred with a neuropsychologist or psychologist to investigate

the matter further.

¶ 34 Trujillo addressed many of these issues during her own

testimony. She said that her personal interactions with Rabinkov

did not give her reason to challenge the competency evaluation.

Trujillo recalled that, during these meetings, which were facilitated

by ASL interpreters, she engaged in back-and-forth conversations

with Rabinkov that, in her view, demonstrated his comprehension.

She stated that when Rabinkov did not understand, he asked for

clarification. She added that her perception of his comprehension

was bolstered by evidence showing Rabinkov was self-sufficient

enough to navigate Denver’s bus system when traveling to

DeCurnou’s apartment.

¶ 35 Trujillo also discussed the plea negotiation process. Given the

strength of the prosecution’s evidence, Trujillo did not believe there

was any available defense that would result in a full acquittal, and

she conveyed that belief during multiple conversations with

16
Rabinkov regarding his potential offers and the risks of going to

trial. She advised him of the inculpatory evidence that would likely

be introduced, opined that the brutality of the crime and the

strength of the evidence increased the risk of a first degree murder

conviction, and explained that even a second degree murder

conviction could result in a forty-eight-year sentence. Rabinkov

asked Trujillo to attempt to negotiate an offer for probation.

However, once he understood that probation was likely off the table,

he requested a deal that would allow him to be released from prison

as soon as possible.

¶ 36 Trujillo wrote a mitigation letter and discussed plea options

with the prosecution. The letter detailed Rabinkov’s difficult

background and the extent of his physical and cognitive

disabilities — although it did not specify that he likely has

congenital rubella syndrome. Nonetheless, Trujillo testified during

the postconviction hearing that Rabinkov’s “symptomology was

undisputed” by the prosecution, and that, in her view, Rabinkov’s

challenges contributed to the prosecution’s acceptance of a thirty-

two-year stipulated sentence for second degree murder.

17
¶ 37 After the hearing, the postconviction court found that

Rabinkov failed to prove either deficient performance or prejudice.

B. Competency

¶ 38 Rabinkov argues it was objectively unreasonable for the

defense team not to consult with an expert neuropsychologist or

psychologist after Gray’s evaluation found him competent to

proceed. He asserts that defense counsel knew about his

background and his physical and cognitive disabilities, as well as

the fact that “maternal rubella” can cause deafness and lifelong

medical and behavioral problems. He maintains his attorneys were

also aware that nothing in Gray’s competency evaluation addressed

any of the major points his competency motion had raised and

notes that, at the postconviction hearing, the criminal defense

expert opined that the defense team’s lack of action on this issue

was objectively unreasonable.

¶ 39 The postconviction court determined that the defense team’s

performance on the competency issue was neither objectively

unreasonable nor prejudicial to the defense. In reaching this

conclusion, the court gave great weight to Trujillo’s testimony that,

while representing Rabinkov, she “did not observe anything in her

18
communications or interactions” that “led her to believe [Rabinkov]

was incompetent to proceed.” It gave less weight to the testimony of

the criminal defense expert because the expert “did not speak with

[Rabinkov] or the trial defense team” and therefore “did not have a

complete picture of why certain actions were taken and others were

not.”

¶ 40 We are bound by the postconviction court’s weight and

credibility determinations. See Dunlap, 173 P.3d at 1061-62. And,

based on those findings, as well as other evidence in the record, we

agree with the court’s conclusion that the defense team’s approach

to the competency issue was not objectively unreasonable.

(Accordingly, we need not address Strickland’s prejudice prong. See

Washington, 2014 COA 41, ¶ 20.)

¶ 41 That other evidence includes the court’s finding that, based on

its own review of the record, Rabinkov displayed an ability “to

understand and retain important advice provided by his attorneys,”

unprompted, during his conversations with Gray. It also includes

evidence of an evaluation requested by Rabinkov’s defense team

and conducted by a licensed clinical social worker (LCSW) with the

Mental Health Center of Denver before Gray’s competency

19
evaluation was requested. The LCSW, who had experience working

with deaf individuals, determined Rabinkov’s “ASL abilities were

within normal limits” and also reported that his “cognitive abilities

were fine when he completed the mini mental health examination.”

And it includes the postconviction court’s observation that, if

Rabinkov’s competency truly had been an issue, one would expect

his highly experienced defense team to press for a second

evaluation or object to the court’s ultimate competency finding. See

People v. Newmiller, 2014 COA 84, ¶ 22 (relying in part on

postconviction court’s finding that trial counsel were “highly

experienced criminal defense attorneys”).

¶ 42 Because there is substantial record support for the

postconviction court’s finding that the defense team’s approach to

the competency issue was not objectively unreasonable, we leave it

undisturbed.

C. Legal Defenses

¶ 43 Rabinkov next asserts that his defense team should have

consulted with an expert familiar with his disabilities to effectively

advocate on his behalf. He says it was impossible for his attorneys

to make an informed decision about his legal defense without such

20
consultation. We agree with the postconviction court’s conclusion

that Rabinkov did not show that his attorneys’ actions were

objectively unreasonable.

¶ 44 Counsel has a duty to make reasonable investigations into

appropriate trial defenses. Strickland, 466 U.S. at 691. A

reasonable investigation does not mean a perfect investigation.

Harrington v. Richter, 562 U.S. 86, 108 (2011) (stating that counsel

is entitled to allocate limited resources based on their expertise in

effective trial tactics and strategies). Defense counsel need only

conduct an investigation sufficient to reveal potential defenses as

well as weaknesses in the prosecution’s case. People v. Dillard, 680

P.2d 243, 245 (Colo. App. 1984).

¶ 45 Our review of the record and the postconviction court’s

reasoning convinces us that the defense team made a reasonable

investigation into Rabinkov’s physical and cognitive issues, even

though they did not consult with a neuropsychologist or

psychologist. Newmiller, ¶ 45 (“A reasonable investigation means

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

relevant to guilt.’” (citation omitted)). Hence, we agree with the

postconviction court’s conclusion that “there are many different

21
defense strategies that may be pursued” by counsel and, here,

Rabinkov’s defense strategy was objectively reasonable.

¶ 46 As discussed above and in the postconviction court’s order,

early in the case, defense counsel conferred with an LCSW

experienced in the field about Rabinkov’s physical and cognitive

disabilities. Although the LCSW was not a neuropsychologist or

psychologist, she had experience working “with deaf individuals and

their families through [the Mental Health Center of Denver],”

including “intakes and assessments.” The LCSW concluded that

Rabinkov’s “cognitive abilities were fine” and his “ASL abilities were

within normal limits.” Nonetheless, after meeting with the LCSW

for an evaluation of Rabinkov’s condition, defense counsel

incorporated her recommendations regarding specific testing into

the motion for Rabinkov’s competency evaluation.

¶ 47 Despite the LCSW’s opinion that his “cognitive abilities were

fine,” Gray’s evaluation concluding Rabinkov was competent, and

Trujillo’s own impressions, the defense team continued to

investigate Rabinkov’s physical and cognitive disabilities

throughout the case. The record shows that defense counsel

sought out Rabinkov’s probation records and mental health

22
records, interviewed family members, and sought records about his

hospitalizations in Ukraine to better understand his disabilities.

Much of the information gathered in this investigation appeared in

the mitigation letter that defense counsel sent to the prosecution in

advance of the plea. It was also the basis for Trujillo’s conclusion

that, given the evidence against Rabinkov and the nature of the

crime, a defense based on Rabinkov’s physical and cognitive

disabilities would not lead to a full acquittal, and a plea deal

presented a better overall strategy.

¶ 48 Based on the extent and depth of the defense team’s

investigation into Rabinkov’s condition — along with its effective

use of the information uncovered during that investigation — we

agree with the postconviction court’s ruling that the failure to

consult a neuropsychologist or psychologist when formulating and

pursuing defense strategies was not an objectively unreasonable

decision.

D. Plea Deal

¶ 49 We also reject Rabinkov’s argument that the defense team’s

failure to consult with a neuropsychologist or psychologist about

23
his physical and cognitive disabilities before negotiating his plea

deal amounted to ineffective assistance of counsel.

¶ 50 The thrust of Rabinkov’s argument is that appropriate expert

consultation would have resulted in a specific diagnosis of

congenital rubella syndrome, which could have then been

communicated to the prosecution in the mitigation letter or through

other means, and presumably would have led to a better plea offer.

¶ 51 However, as the postconviction court noted, with the exception

of microcephaly, the mitigation letter’s description of Rabinkov’s

symptoms was nearly identical to the indications of congenital

rubella syndrome that Rabinkov’s medical expert described at the

hearing. The postconviction court included the following

comparison in its order:

24
Mitigation Letter of June 18, Congenital Rubella
2013 Syndrome Manifestations
Defendant’s mother contracted Defendant’s mother very
chicken pox while pregnant likely contracted rubella
with Defendant. while pregnant with
Defendant.
Defendant has been deaf since Hearing impairment.
birth.
Defendant suffered from a Congenital heart issues.
heart defect at birth, requiring
monitoring and treatment of
his narrowed aorta.
Defendant had retinal Congenital abnormalities
degeneration at birth, requiring of the eyes
retinal injections.
Defendant was developmentally Developmental delays
delayed, as identified at a
young age by teachers at the
school for deaf children.
Defendant struggled in school.
Defendant would run away for Difficulty understanding
weeks at a time as a teenager, how actions may impact
and he was found living with results, risk versus
“Gypsies” on the streets. benefit analysis, and
Defendant was hospitalized what repercussions may
multiple times in a children’s result from certain
psychiatric ward in Ukraine for actions.
bizarre behavior.
N/A Microcephaly (reduced
skull size)

¶ 52 Like the postconviction court, we see very little substantive

difference between the conditions described in the mitigation letter

and a formal diagnosis of congenital rubella syndrome. And we

25
must defer to the court’s decision to credit Trujillo’s testimony that,

given the facts and evidence, she reasonably determined that

putting a medical diagnosis to Rabinkov’s symptoms “would not

have made a difference in plea negotiations.” Accordingly, we agree

with the postconviction court’s conclusion that the defense team did

not act unreasonably by failing to consult an expert for the purpose

of negotiating a better plea agreement.

VI. Communication

¶ 53 Finally, Rabinkov contends that his defense team provided

ineffective assistance of counsel because they failed to communicate

and advise him effectively on the risks of proceeding to trial versus

accepting a plea deal. He argues they deficiently performed by

failing to explain how his cognitive disabilities could have been used

as defenses at trial. And he asserts that, according to jail records,

he rarely met with his defense counsel while he was in pretrial

incarceration and that ASL interpreters were not present for all of

these meetings. He argues there is a reasonable probability that if

his attorneys had provided adequate advice, he would have rejected

the plea offer and gone to trial. We are not persuaded.

26
¶ 54 In rejecting this argument, the postconviction court credited

Trujillo’s testimony that she discussed Rabinkov’s “mental and

physical conditions with him” and “explained how this information

could be used at trial,” and while she “didn’t use the words ‘mental

slowness,’” she imparted the principles of a cognitive disabilities

defense. The court also noted that Rabinkov first “request[ed]

probation” when Trujillo explained the risks of trial, and then, once

she explained that probation was likely off the table, he sought a

plea deal that would give him the shortest possible period of

incarceration.

¶ 55 Regarding the number of visits between Rabinkov and

members of the defense team, the postconviction court declined to

credit the jail records that Rabinkov relied on to show that he rarely

met with defense counsel and that ASL interpreters were not always

present when meetings did occur. The court reasoned that there

were “large portions” of the jail records that were blacked out by

“presumably the Denver Sheriff’s Office,” obscuring exact visitation

details. The court also noted that Rabinkov did not present

testimony establishing the records’ completeness or accuracy.

Moreover, the court found there was substantial evidence that the

27
records were inaccurate or incomplete. Trujillo, for example,

appears to have visited Rabinkov eight times even though jail

records list only four. And there was no record of a visit by Higgs

shortly before the competency evaluation, even though Rabinkov

cited her legal advice as a basis for declining to answer certain

questions posed during that process.

¶ 56 As for the likelihood that Rabinkov would have rejected the

plea offer and gone to trial on the first degree murder charge, we

agree with the postconviction court’s conclusion that the chances of

that occurring were slim. See Hill, 474 U.S. at 58-59 (A defendant

who challenges a guilty plea based on ineffective assistance of

counsel must show “a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on

going to trial.”). As Trujillo explained, Rabinkov’s defenses were

limited and were hampered by his evolving story about the incident

and the nature of DeCurnou’s injuries. Given the weaknesses in

the defense, accepting a plea offer to a lesser charge was a rational

decision.

¶ 57 Rabinkov’s statements during the plea negotiations also show

an inclination to avoid trial. Facing a life sentence for first degree

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murder and a possible forty-eight-year sentence if convicted of

second degree murder, he repeatedly asked for a plea deal with as

little prison time as possible. See People v. Corson, 2016 CO 33,

¶ 35 (explaining that when assessing whether a defendant would

elect to plead guilty or go to trial, appellate courts have considered

the comparative sentencing exposure between a proffered plea

bargain and conviction after trial). Accordingly, we agree with the

postconviction court’s conclusion that Rabinkov failed to sufficiently

show there is a reasonable probability that, had he received more

thorough advice from his defense team, he would have opted for

trial rather than accept a plea deal.

VII. Disposition

¶ 58 We affirm the postconviction court’s order denying Rabinkov’s

motion for postconviction relief.

JUDGE YUN and JUDGE SCHOCK concur.

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