Peo v. Aurelio

23CA1416 Peo v Aurelio 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1416
City and County of Denver District Court No. 13CR4662
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nicholas J. Aurelio,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE SULLIVAN
Fox and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 7, 2026

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

Nicholas J. Aurelio, Pro Se
¶1 Defendant, Nicholas J. Aurelio, appeals the postconviction

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

relief. We affirm.

I. Background

¶2 Aurelio and the victim were involved in a romantic relationship

in 2012. The victim ended the relationship in late 2012, and by

summer 2013, she had sought and obtained a civil protection order

and two criminal protection orders prohibiting further contact.

Aurelio then violated the criminal protection order in Denver

District Court Case No. 13CR3458 by continuing to communicate

with the victim. The day before a bond revocation hearing in Case

No. 13CR3458, Aurelio confronted the victim with a gun outside her

apartment, forced himself inside, and sexually assaulted her.

¶3 Two different public defenders represented Aurelio at the

beginning of the case. Before trial, however, Aurelio fired the public

defenders and retained private defense counsel (trial counsel).

¶4 At trial, the prosecution presented testimony from the victim,

as well as another of Aurelio’s ex-girlfriends, J.R., who had

previously obtained a restraining order against him. Aurelio’s

1
defense was that the victim had fabricated her allegations because

she wanted to extort him for money.

¶5 A jury found Aurelio guilty of sexual assault, second degree

kidnapping, second degree burglary, intimidation of a witness or

victim, tampering with physical evidence, two counts of stalking,

two counts of violation of a protection order, and a violation of bail

bond conditions. The trial court sentenced Aurelio to seventy-seven

and a half years in the custody of the Department of Corrections

(DOC).

¶6 Aurelio appealed his convictions, arguing, among other things,

that the trial court erroneously (1) admitted evidence prohibited by

CRE 404(b) and (2) denied him a hearing on his postconviction

motion for a new trial based on newly discovered evidence. A

division of this court rejected his contentions and affirmed his

convictions. People v. Aurelio, (Colo. App. No. 16CA0264, Feb. 8,

2018) (not published pursuant to C.A.R. 35(e)) (Aurelio I).

¶7 Aurelio, proceeding pro se, then filed a 143-page motion for

postconviction relief under Crim. P. 35(c). The postconviction court

appointed counsel who supplemented Aurelio’s motion. The

postconviction court issued a detailed written order denying the

2
bulk of Aurelio’s claims but granting an evidentiary hearing on one:

whether trial counsel provided ineffective assistance of counsel

during plea negotiations. Before the hearing, the court allowed

Aurelio’s postconviction counsel to withdraw but denied Aurelio’s

request to appoint substitute counsel. Aurelio appeared at the

hearing with only advisory counsel. After the hearing, the court

rejected his claim, concluding trial counsel provided Aurelio with

effective representation during plea negotiations.

¶8 Aurelio, again proceeding pro se, now appeals. He contends

that the postconviction court erred by (1) denying all but one of his

ineffective assistance of counsel claims without a hearing;

(2) rejecting his prosecutorial misconduct claims as successive;

(3) not appointing substitute counsel after granting his

postconviction counsel’s request to withdraw; and (4) denying his

postconviction claim, after the evidentiary hearing, that trial

counsel provided ineffective assistance during plea negotiations.1

We address each contention in turn.

1 Aurelio’s other claims in his original and supplemental

postconviction petitions that he doesn’t raise on appeal are deemed
abandoned. See People v. Smith, 2017 COA 12, ¶ 27.

3
II. General Legal Principles Under Crim. P. 35(c)

¶9 Postconviction proceedings are “intended to prevent injustices

after conviction and sentencing, not to provide perpetual review.”

People v. Melendez, 2024 COA 21M, ¶ 38 (quoting People v.

Rodriguez, 914 P.2d 230, 249 (Colo. 1996)). As a result, a

postconviction court must deny any claim that the defendant

presented and the court resolved in a previous appeal or

postconviction proceeding. Crim. P. 35(c)(3)(VI). Similarly, a

postconviction court must deny any claim that the defendant could

have presented in a previous appeal or postconviction proceeding.

Crim. P. 35(c)(3)(VII). “Even if the claims are slightly different, ‘an

argument raised under Rule 35 which does not precisely duplicate

an issue raised on appeal will be precluded if its review would be

nothing more than a second appeal addressing the same issues on

some recently contrived constitutional theory.’” Dunlap v. People,

173 P.3d 1054, 1093 (Colo. 2007) (quoting Rodriguez, 914 P.2d at

249).

¶ 10 These bars on successive claims don’t apply, however, to

postconviction claims “based on evidence that could not have been

4
discovered previously through the exercise of due diligence.”

Crim. P. 35(c)(3)(VI)(a), (VII)(b).

III. Ineffective Assistance of Counsel

¶ 11 Aurelio contends that the postconviction court erred by

denying all but one of his ineffective assistance of counsel claims

without a hearing. We disagree.

A. Standard of Review and Applicable Law

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

Crim. P. 35(c) motion without a hearing. People v. Joslin, 2018 COA

24, ¶ 5. A postconviction court may deny a Crim. P. 35(c) motion

without a hearing if the allegations are bare and conclusory; the

allegations, even if true, don’t warrant relief; or the record refutes

the claims. Id. at ¶ 4.

¶ 13 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. People v.

Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). A defendant bears the burden of proving

both prongs by a preponderance of the evidence. People v. Houser,

2020 COA 128, ¶ 31. We apply a strong presumption that

5
counsel’s strategy fell within the wide range of competent

assistance. Strickland, 466 U.S. at 689; Ardolino v. People, 69 P.3d

73, 76 (Colo. 2003).

¶ 14 An attorney’s performance is deficient if it falls “below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688.

To establish prejudice, the defendant must show a reasonable

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

proceeding’s outcome would have been different. Strickland, 466

U.S. at 694. If, for example, the defendant asserts that counsel’s

failure to investigate prejudiced the defense the defendant must

show a reasonable probability that the investigation would have

uncovered evidence that would have affected the proceeding’s

outcome. See People v. Pendleton, 2015 COA 154, ¶ 34 (“[U]nless

additional investigation would have revealed ‘substantial evidence

which, if introduced, might reasonably have led to a different

result,’ the failure to conduct such investigation is not prejudicial.”

(quoting People v. Chambers, 900 P.2d 1249, 1252 (Colo. App.

1994))).

¶ 15 We broadly construe pleadings filed by unrepresented litigants

“to ensure that they are not denied review of important issues

6
because of their inability to articulate their argument like a lawyer.”

Jones v. Williams, 2019 CO 61, ¶ 5. But we will not rewrite an

unrepresented litigant’s pleadings or act as their advocate. People

v. Cali, 2020 CO 20, ¶ 34.

B. Contentions Refuted by the Record

¶ 16 We first address Aurelio’s contentions that (1) trial counsel

failed to investigate data retrieved from the victim’s cell phone;

(2) one of his public defenders mishandled the admissibility of

certain CRE 404(b) evidence about his prior case, Case No.

13CR3458; (3) trial counsel failed to limit the scope of or object to

J.R.’s testimony that violated CRE 404(b); (4) trial counsel failed to

investigate J.R. to discover impeachment information; (5) trial

counsel inadequately cross-examined the victim; and (6) trial

counsel failed to call Aurelio’ s mother as a witness. Because the

record contradicts Aurelio’s contentions, we perceive no error in the

postconviction court’s denial of these claims without a hearing.

1. Cell Phone Data

¶ 17 Aurelio contends that trial counsel provided ineffective

assistance by failing to discover that the victim’s cell phone data

7
contained hundreds of his emails and that it was incomplete,

suggesting the victim had deleted exculpatory information.

¶ 18 We conclude the record refutes his claim. Trial counsel deftly

navigated the voluminous phone data exhibit, referencing

timestamps and specific line and page numbers throughout his

cross-examination of the prosecution’s forensic expert. The expert

even complimented trial counsel’s command of the data, saying,

“You get an ‘A’ because you’re the first defense attorney that’s ever

been able to figure this out very easy.” Moreover, trial counsel did

elicit testimony from the expert that the data was incomplete and

that it contained hundreds of Aurelio’s emails.

¶ 19 Because the record refutes Aurelio’s allegations underlying

this claim, we agree with the postconviction court that no hearing

was required. See Joslin, ¶ 4.

2. CRE 404(b) and the Victim’s Testimony

¶ 20 Aurelio contends that one of his public defenders provided

ineffective assistance before trial by failing to make “any type of

plausible argument” under CRE 404(b) for excluding the victim’s

testimony about Case No. 13CR3458.

8
¶ 21 The record also refutes this contention. In response to the

prosecution’s pretrial motion to join the cases or admit evidence of

the other case, the public defender argued that the evidence should

be excluded because the two cases lacked overlap among the

charges and the crimes didn’t reflect a common scheme or plan.

See CRE 404(b)(2). She also argued the evidence should be

excluded under the third and fourth prongs of People v. Spoto, 795

P.2d 1314 (Colo. 1990). At the motions hearing, the public

defender reraised her objection to introducing the evidence. On

appeal, Aurelio doesn’t identify with specificity any additional legal

arguments the public defender should have made but didn’t, much

less show a reasonable probability that such arguments would have

led to a different outcome.2 See Strickland, 466 U.S. at 694.

¶ 22 In addition to being refuted by the record, we also conclude

that this claim is successive under Crim. P. 35(c)(3)(VI). In his

2 Although Aurelio references where he made these arguments more

fully below, incorporating those arguments by reference is no
substitute for adequately developing the argument on appeal. See
C.A.R. 57 (“Incorporation by reference of briefs previously filed in
the lower court is prohibited.”); see also People v. Phipps, 2016 COA
190M, ¶ 12 (“[W]e do not address any of the ‘incorporated by
reference’ arguments.”).

9
direct appeal, Aurelio advanced, and the division rejected,

arguments similar to those that he now makes under Spoto and

CRE 404(b). See Aurelio I, slip op. at ¶¶ 43-50. Although Aurelio

now attempts to recast his direct appeal arguments as ineffective

assistance of counsel claims, these claims aren’t sufficiently distinct

to overcome C.A.R. 35(c)(3)(VI)’s successiveness bar. See People v.

Villarreal, 231 P.3d 29, 33 (Colo. App. 2009) (even if a claim isn’t

identical to an issue previously adjudicated, the claim is successive

if it “allege[s] precisely the same . . . errors that were raised and

resolved [in the direct appeal] and has merely recast them under

the constitutional theory of ineffective assistance of counsel”), aff’d,

2012 CO 64, and abrogated on other grounds by, Hagos v. People,

2012 CO 63; see also Dunlap, 173 P.3d at 1093 (postconviction

claims that are “essentially identical” to those raised and resolved

on direct appeal may be denied as successive).

¶ 23 Accordingly, the postconviction court didn’t err by determining

that no hearing was required on this claim. See Joslin, ¶ 4.

10
3. CRE 404(b) and J.R.’s Testimony

¶ 24 Aurelio also argues that trial counsel provided ineffective

assistance by failing to seek an in limine order limiting the scope of

J.R.’s testimony or otherwise objecting to her testimony.

¶ 25 The record refutes this claim, too. The record reflects that trial

counsel reached an informal agreement with the prosecution about

the scope and nature of J.R.’s testimony. Specifically, counsel

agreed that J.R. could testify about her history with Aurelio and

that she had sought a protection order against him, but she

couldn’t mention the nature of the past charges or that he had

pleaded guilty. Although Aurelio insists trial counsel should have

formalized this pretrial agreement because J.R. “testified too much”

and therefore violated CRE 404(b), he doesn’t point us to, nor does

our independent review reveal, any testimony outside the

agreement’s scope.

¶ 26 Moreover, this claim is successive because it attempts to

recast an argument that Aurelio made on direct appeal — and that

the division rejected — as an ineffective assistance of counsel claim.

See Aurelio I, slip op. at ¶¶ 16-42; accord Villarreal, 231 P.3d at 33.

11
¶ 27 Thus, the postconviction court didn’t err by determining that

no hearing was required on this claim. See Joslin, ¶ 4.

4. Investigation and Impeachment of J.R.

¶ 28 Aurelio argues that trial counsel provided ineffective

assistance by failing to investigate J.R. to obtain impeachment

evidence.

¶ 29 We conclude the record refutes this contention. Trial counsel

did impeach J.R.’s credibility on cross-examination, eliciting

testimony that she (1) continued her relationship with Aurelio for

over three years despite allegations of violence; (2) took money from

Aurelio; (3) dropped restraining orders she had against Aurelio; and

(4) chose to spend time with Aurelio while a restraining order was in

place. While Aurelio argues that trial counsel should have further

impeached J.R. based on her past convictions, false testimony, and

purported mental illness and drug abuse, counsel could have

reasonably decided that further impeachment would have been

cumulative, see People v. Washington, 2014 COA 41, ¶ 35, or risked

alienating the jury, see Pickens v. Gibson, 206 F.3d 988, 1002 (10th

Cir. 2000) (counsel’s decision to avoid “vigorously” challenging a

“compelling and sympathetic victim” was “strategically reasonable”).

12
See also Strickland, 466 U.S. at 689 (explaining that the defendant

must overcome the presumption that “the challenged action ‘might

be considered sound trial strategy’” (citation omitted)).

¶ 30 In addition, even if we assumed that trial counsel’s

performance was deficient, Aurelio doesn’t explain how further

investigation and impeachment of J.R. would have changed the

jury’s verdict. See Pendleton, ¶ 34.

¶ 31 Finally, to the extent Aurelio argues that trial counsel provided

ineffective assistance by allowing J.R. to give “extensive” false

testimony at trial, he again improperly recasts an argument he

made on direct appeal as an ineffective assistance of counsel claim.

See Aurelio I, slip op. at ¶ 65 (holding that the record supported the

trial court’s findings that no new evidence suggested that J.R.

perjured herself at trial); accord Villarreal, 231 P.3d at 33.

5. Impeachment of the Victim

¶ 32 Aurelio similarly contends that trial counsel provided

ineffective assistance by failing to adequately impeach the victim.

He argues that trial counsel should have impeached the victim for

lying about Aurelio owing her money, her clothing the day of the

sexual assault, and a lawsuit she filed against his mother.

13
According to Aurelio, trial counsel could have “easily contradicted”

the victim’s lies had he not rushed the cross-examination and failed

to subpoena bank records.

¶ 33 Again, the record contradicts Aurelio’s allegations. Trial

counsel thoroughly cross-examined the victim about her financial

dealings with Aurelio, the debt Aurelio owed her, and the lawsuit

she filed against Aurelio’s mother. Trial counsel also impeached the

victim based on her dislike for Aurelio, inconsistencies in her

testimony about cutting off communication with Aurelio, and her

offers to drop the charges if Aurelio paid her money.

¶ 34 Moreover, Aurelio again doesn’t explain how further

impeachment of the victim would have affected the jury’s verdict.

See Joslin, ¶ 4. And as with trial counsel’s cross-examination of

J.R., trial counsel could have reasonably decided that further

impeachment of the victim would have been cumulative or harmful

to Aurelio’s defense. See Washington, ¶ 35; Pickens, 206 F.3d at

1002; see also People v. Bradley, 25 P.3d 1271, 1275 (Colo. App.

2001) (“Mere disagreement as to trial strategy will not support a

claim for ineffective assistance of counsel.”).

14
6. Aurelio’s Mother

¶ 35 Aurelio also contends that trial counsel provided ineffective

assistance by failing to call his mother as a witness. According to

Aurelio, his mother would have testified that the victim contacted

her several times offering to drop the charges in exchange for

money.

¶ 36 We conclude that the record refutes Aurelio’s contention that

trial counsel’s failure to call his mother constituted deficient

performance. See Strickland, 466 U.S. at 687. Trial counsel elicited

similar evidence by cross-examining the victim about a text

message in which she told Aurelio that she would drop the charges

(except the restraining order) if Aurelio paid her $7,480. Trial

counsel also elicited testimony from the victim that she wrote letters

to the city attorney’s office asking for charges to be dismissed after

Aurelio and his mother paid her. Finally, trial counsel asked the

victim about an email found on her phone in which the sender told

Aurelio’s mother, “If Nick can give me at least $1,000 in cash before

the 15th, I will plead the Fifth.”

¶ 37 Based on this record, we can’t conclude that trial counsel’s

decision to refrain from eliciting similar testimony from his mother

15
constituted deficient performance. See Washington, ¶ 35. And in

any event, Aurelio doesn’t explain how additional, similar testimony

from his mother would have changed the jury’s verdict. See

Pendleton, ¶ 34.

C. Conclusory and Insufficient Allegations

¶ 38 We next address Aurelio’s contentions that the postconviction

court should have granted him a hearing on his claims that (1) his

lawyers failed to investigate and secure certain evidence that would

have impeached the victim; (2) trial counsel’s issues in his personal

and professional life resulted in ineffective assistance of counsel;

(3) trial counsel failed to exclude the prosecution’s generalized

expert testimony; and (4) trial counsel failed to raise certain

arguments in his motion for a new trial. Because Aurelio’s petition

as supplemented didn’t establish both of Strickland’s elements on

these claims or the claims are conclusory, we agree with the

postconviction court that no hearing was required.

1. General Failure to Investigate

¶ 39 Aurelio contends that his two pretrial public defenders and

trial counsel each provided ineffective assistance of counsel by

16
failing to investigate or secure various pieces of evidence that he

says would have undermined the victim’s credibility.

¶ 40 In his opening brief, Aurelio lists examples of such evidence

but doesn’t explain how the evidence, if obtained, would have

impeached the victim’s credibility or otherwise changed the trial’s

outcome.3 Accordingly, we perceive no error in the postconviction

court’s rejection of this claim without a hearing. See People v.

Delgado, 2019 COA 55, ¶¶ 36-37 (explaining that the defendant’s

“vague assertions” and “conclusory statements” that defense

counsel failed to properly investigate the victim’s history of abuse by

others didn’t establish prejudice).

2. Conflicts of Interest

¶ 41 Aurelio contends that trial counsel labored under conflicts of

interest during his representation because of a medical condition,

staffing issues, and financial problems. But he cites no case law,

here or below, indicating that these issues, even if true, amounted

3 Again, we don’t consider arguments from Aurelio’s lower court

pleadings that he attempts to incorporate by reference. See
C.A.R. 57; Phipps, ¶ 12. Even below, Aurelio never explained how
further impeachment of the victim would have changed the jury’s
verdict. See People v. Pendleton, 2015 COA 154, ¶ 34.

17
to conflicts of interest that required trial counsel to withdraw. See

West v. People, 2015 CO 5, ¶ 3 (to establish a conflict of interest

justifying relief, a defendant must show both an actual conflict and

an adverse effect resulting from that conflict).

¶ 42 To the extent Aurelio argues on appeal that these allegations

also support an ineffective assistance of counsel claim, he doesn’t

establish how these issues led to trial errors that prejudiced him.

See People v. White, 514 P.2d 69, 71 (Colo. 1973). Instead, Aurelio

simply reraises trial counsel’s alleged inadequate investigation and

failure to obtain an in limine order cabining J.R.’s testimony —

claims we have already rejected. See supra Parts III.B.3, III.C.1.

3. Generalized Expert Testimony

¶ 43 Aurelio also contends that trial counsel provided ineffective

assistance in abandoning his request for a Shreck hearing on the

admissibility of testimony by the prosecution’s generalized expert,

see People v. Shreck, 22 P.3d 68, 77-79 (Colo. 2001), and instead

relying on an informal agreement with the prosecution regarding

the scope of the expert’s testimony.

¶ 44 We perceive no basis to reverse. Beyond generally alleging

that the expert “testified far beyond the scope of her expertise,”

18
Aurelio doesn’t specify which testimony was out of bounds, how it

prejudiced his defense, or how a hearing on the expert’s credentials

would have convinced the trial court to exclude the testimony.

Moreover, the record shows that trial counsel objected to qualifying

this witness as an expert. After the trial court overruled the

objection, trial counsel cross-examined the expert on her

experience. See Harrington v. Richter, 562 U.S. 86, 111 (2011) (“In

many instances cross-examination will be sufficient to expose

defects in an expert’s presentation.”).

¶ 45 To the extent Aurelio argues that trial counsel provided

ineffective assistance because the expert’s generalized testimony

was “clearly inadmissible” as character evidence, we disagree. The

supreme court has made clear that an expert’s generalized

testimony — that is, testimony that educates the jury about general

concepts without discussing the particular facts of the case — is

admissible if it has a sufficient logical connection to the factual

issues to help the jury while still clearing CRE 403’s admissibility

19
bar. People v. Cooper, 2021 CO 69, ¶¶ 1-3.4 Contrary to Aurelio’s

argument, the prosecution’s generalized expert confined her

testimony to general concepts about domestic violence and didn’t

offer any opinion about Aurelio’s character or the facts of Aurelio’s

case.

4. Motion for a New Trial

¶ 46 Aurelio contends that trial counsel provided ineffective

assistance by failing to raise several arguments in his motion for a

new trial. He asserts that trial counsel should have argued that

(1) the trial court erroneously admitted evidence that should have

been excluded under CRE 404(b); (2) the victim and J.R. testified

falsely, including J.R.’s false testimony about moving out of

Colorado; and (3) the prosecution violated Crim. P. 16 and

committed unspecified misconduct related to the false testimony.

¶ 47 But Aurelio doesn’t develop any of these arguments, cite any

supporting authority, or explain why the trial court would have

granted a new trial had trial counsel advanced these arguments.

4 The supreme court’s Cooper decision reversed People v. Cooper,

2019 COA 21, which Aurelio relied on extensively in his
supplemental Crim. P. 35(c) petition.

20
We therefore decline to address these conclusory contentions. See

People v. Romero, 2015 COA 7, ¶ 53 (declining to address a

Crim. P. 35(c) argument that the defendant presented in a

perfunctory and conclusory manner).

D. Cumulative Error

¶ 48 Aurelio contends that even if no single allegation of ineffective

assistance of counsel warrants relief, the cumulative effect of

counsel’s errors denied him due process.

¶ 49 To warrant reversal under the cumulative error doctrine, a

reviewing court must identify multiple errors that collectively

prejudiced the defendant’s substantial rights, even if no single error

warrants reversal. Howard-Walker v. People, 2019 CO 69, ¶ 25.

But even if we assume that the cumulative error doctrine applies to

ineffective assistance of counsel claims — an issue we don’t

reach — we haven’t identified any errors in the postconviction

court’s analysis of Aurelio’s claims. Thus, a cumulative error

analysis isn’t required. See People v. Villa, 240 P.3d 343, 359 (Colo.

App. 2009).

21
IV. Prosecutorial Misconduct

¶ 50 Aurelio contends the prosecution committed misconduct by

(1) concealing J.R.’s criminal history, thus violating Crim. P. 16 and

Brady v. Maryland, 373 U.S. 83 (1963); (2) concealing and then

introducing inadmissible CRE 404(b) evidence related to one of his

past cases; and (3) knowingly presenting false testimony through

the victim and J.R.

¶ 51 The postconviction court determined that Aurelio could have

raised these contentions previously, rendering them successive

under Crim. P. 35(c)(3)(VII). The court also determined that Aurelio

identified no evidence in support of these contentions that couldn’t

have been discovered earlier through the exercise of due diligence,

so the exception to the successiveness bar in Crim. P. 35(c)(3)(VII)(b)

didn’t apply.

¶ 52 As to J.R.’s criminal convictions, Aurelio argues that he

exercised due diligence by requesting discovery from the

prosecution on multiple occasions. But even if true, the record

reflects that Aurelio eventually received J.R.’s criminal history

during the postconviction phase by checking with the Colorado

Bureau of Investigation and obtaining court records. Aurelio

22
doesn’t explain why these same avenues wouldn’t have revealed

J.R.’s criminal history before and during trial had he and his

counsel exercised due diligence. See Mason v. People, 25 P.3d 764,

767 (Colo. 2001).

¶ 53 We also reject Aurelio’s other two contentions of prosecutorial

misconduct. Even construing his pro se briefing broadly, Aurelio

doesn’t develop his argument that the postconviction court erred by

rejecting these contentions as successive. See Romero, ¶ 53. If

anything, Aurelio’s allegations of false testimony are similar to his

direct appeal arguments that the Aurelio I division already rejected.

See Aurelio I, slip op. at ¶¶ 65-67; accord Dunlap, 173 P.3d at 1093.

V. Withdrawal of Postconviction Counsel

¶ 54 Aurelio contends that the postconviction court erred by

allowing his postconviction counsel to withdraw but denying his

request for substitute counsel before the evidentiary hearing on his

claim that trial counsel provided ineffective assistance during plea

negotiations. The People argue that any error was harmless

because Aurelio presented competent arguments and evidence

under the circumstances but couldn’t have proved his claim even

with the benefit of substitute counsel. We agree with the People.

23
A. Additional Background

¶ 55 In his pro se and supplemental postconviction petitions,

Aurelio claimed that trial counsel improperly dissuaded him from

accepting an eleven-year plea offer and overemphasized the

strength of his defense. The postconviction court granted Aurelio

an evidentiary hearing to develop the facts underlying this claim.

¶ 56 Before the hearing, however, Aurelio’s appointed

postconviction counsel requested to withdraw because the

attorney-client relationship had “broken down to the point that it

[wa]s irreconcilable.” Aurelio agreed. The court allowed

postconviction counsel to withdraw but didn’t appoint new counsel

as Aurelio had requested.

¶ 57 The court explained that the evidentiary hearing would be

limited to two factual questions: (1) “whether or not the plea

agreement . . . of [eleven] years [in] DOC was forwarded to [Aurelio]

by [trial counsel]” and (2) “whether or not [trial counsel] told

[Aurelio] not to take a deal . . . [and] that there was no way [Aurelio]

would lose at trial.” The court said it would allow Aurelio to present

testimony from a defense investigator who allegedly overheard trial

24
counsel say to Aurelio, “Do not take a deal.” But the court

emphasized that the hearing wouldn’t “deal with expert issues.”

¶ 58 At the evidentiary hearing, Aurelio elicited testimony from the

defense investigator that the prosecution extended a favorable

“nonsex” plea offer in May 2015, under which Aurelio would plead

guilty to second degree burglary and menacing. Aurelio himself

testified that the offer contemplated an eleven-year prison sentence.

According to the investigator, trial counsel said that he planned to

recommend that Aurelio reject the offer “because we can win at

trial.”

¶ 59 Other evidence established, however, that trial counsel advised

Aurelio to accept the plea offer, but Aurelio refused. In a May 2015

letter signed by both trial counsel and Aurelio, for example, trial

counsel had explained the prosecution’s eleven-year plea deal to

Aurelio in detail and recommended that he accept the offer. But

trial counsel testified that Aurelio “was never interested in [the plea]

deals that [the prosecution] extended to him” and would only accept

a sentence in “the single digits.” Aurelio’s letters to trial counsel

confirmed this. As one example, Aurelio wrote to trial counsel in

25
May 2015 that “[eleven] years is still to[o] much time and I believe

we have a good case for trial.”

¶ 60 In addition, trial counsel testified, contrary to Aurelio’s

evidence, that he would never advise a client that winning at trial

was a “sure thing.” He also explained that he verbally discussed

the specifics of the prosecution’s various plea offers with

Aurelio — both a September 2014 offer that contemplated a

fourteen-year sentence and the May 2015 offer that contemplated

an eleven-year sentence. Trial counsel testified that, in both

instances, he advised Aurelio to accept the offer.

¶ 61 After the hearing, the postconviction court denied Aurelio’s

claim that trial counsel provided ineffective assistance, concluding

that counsel’s representation during plea negotiations didn’t fall

outside the “range of reasonable professional assistance.”

Strickland, 466 U.S. at 689.

B. Applicable Law and Standard of Review

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

assistance of counsel in their defense. People v. Rainey, 2023 CO

14, ¶ 1. But this constitutional right doesn’t apply during the

postconviction phase. Townsell v. People, 2026 CO 11M, ¶ 19.

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Instead, a criminal defendant in Colorado has a limited statutory

right to counsel in postconviction proceedings for “meritorious

Crim. P. 35(c) motions.” Id. (quoting Silva v. People, 156 P.3d 1164,

1168 (Colo. 2007)).

¶ 63 An error affecting only statutory rights requires us to consider

the error’s impact on the proceeding. See People v. Cardenas, 2015

COA 94M, ¶ 18 (“Harmless error analysis generally applies to

violations of statutory rights.”); see also Crim. P. 52(a) (When

reviewing for harmless error, “[a]ny error, defect, irregularity, or

variance which does not affect substantial rights shall be

disregarded.”). Because Aurelio preserved this contention through

his request for substitute counsel, we review for nonconstitutional

harmless error. Hagos, ¶ 12. Under this standard, we will reverse

only if the error substantially influenced the hearing’s outcome or

affected the fairness of the proceeding. Id.

C. Analysis

¶ 64 Even if we assume that the postconviction court erred by

denying Aurelio’s request for substitute postconviction counsel, we

conclude the error was harmless under the circumstances.

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¶ 65 Trial counsel’s testimony and the documentary evidence

admitted at the postconviction hearing firmly established that trial

counsel communicated the prosecution’s plea offers to Aurelio and

recommended that he accept them. Although Aurelio competently

presented contrary evidence through multiple witnesses, including

the defense investigator, the court found trial counsel’s testimony

and the documentary evidence more credible. Aurelio also cross-

examined trial counsel on his alleged financial motives for

extending the trial process — evidence the court didn’t credit. See

People v. Williams, 908 P.2d 1157, 1161 (Colo. App. 1995) (the

weight and credibility given to a witness’s testimony in a

Crim. P. 35(c) hearing are within the province of the postconviction

court).

¶ 66 Aurelio nonetheless argues that he suffered prejudice because

his expert witness declined to testify after postconviction counsel

withdrew, allegedly informing Aurelio that he didn’t work with pro

se litigants. But the court specifically limited the postconviction

hearing to two narrow factual disputes and said the hearing

wouldn’t involve “expert issues.” Given this limitation, we fail to see

how the expert’s testimony could have influenced the hearing’s

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outcome. And aside from the expert’s testimony that the court

deemed irrelevant, Aurelio doesn’t identify any other evidence or

testimony that substitute counsel would have elicited that he wasn’t

able to marshal competently.

¶ 67 Accordingly, even if the court erred by denying Aurelio’s

request for substitute postconviction counsel, we can’t say that the

error substantially influenced the hearing’s outcome or affected the

fairness of the proceeding.

VI. Evidentiary Hearing

¶ 68 Aurelio contends that the postconviction court erred by

rejecting his claim, after the evidentiary hearing, that trial counsel

provided ineffective assistance of counsel in plea negotiations.

Specifically, he argues that the court improperly prevented him

from calling four witnesses — one of his prior attorneys, a defense

investigator, an expert, and trial counsel’s civil attorney in a related

malpractice case. Aurelio also challenges the court’s factual

findings and credibility determinations. We perceive no error.

A. Applicable Law and Standard of Review

¶ 69 The constitutional right to effective assistance of counsel

extends to the plea bargaining process. Lafler v. Cooper, 566 U.S.

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156, 162 (2012). To establish deficient performance in the plea

bargaining process, a defendant must show that counsel’s advice

deprived him of the opportunity to make a reasonably informed

decision about whether to accept or reject a plea offer. Delgado,

¶ 17.

¶ 70 When a postconviction court denies a motion for

postconviction relief after conducting a hearing, we review its legal

conclusions de novo but defer to its factual findings if the record

supports them. Dunlap, 173 P.3d at 1063. If the evidence in the

record supports the postconviction court’s findings and holdings,

we won’t disturb the judgment on review. People v. Wardell, 2020

COA 47, ¶ 27. We review a postconviction court’s evidentiary

rulings for an abuse of discretion. See People v. Quillen, 2023 COA

22M, ¶ 14.

B. Analysis

¶ 71 We conclude that the evidence elicited at the evidentiary

hearing, summarized supra Part V.A, amply supports the

postconviction court’s findings that trial counsel provided effective

assistance of counsel during plea negotiations. While Aurelio takes

issue with the court’s credibility findings and its rejection of his

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evidence, the weight and credibility given to witness testimony fell

within the postconviction court’s exclusive province. See Williams,

908 P.2d at 1161.

¶ 72 We aren’t persuaded otherwise by Aurelio’s argument that the

postconviction court improperly excluded four of his witnesses. As

discussed, the postconviction court limited the evidentiary hearing

to factual questions involving trial counsel’s communications with

Aurelio about the prosecution’s eleven-year plea offer. Aurelio

doesn’t explain what relevant testimony the excluded witnesses

would have provided on these limited factual questions. Indeed,

three of the witnesses’ affidavits that appear in the record suggest

they had no knowledge of trial counsel’s communications with

Aurelio regarding the eleven-year plea offer. And the fourth

witness, trial counsel’s private civil attorney, had no involvement

other than providing Aurelio with trial counsel’s case file in

2018 — three years after the plea negotiations. As a result, we

perceive no abuse of discretion in the court’s decision excluding

these witnesses from testifying at the postconviction hearing.

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¶ 73 For these reasons, the postconviction court didn’t err by

rejecting Aurelio’s claim that trial counsel provided ineffective

assistance of counsel in plea negotiations.

VII. Disposition

¶ 74 We affirm the order.

JUDGE FOX and JUDGE KUHN concur.

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