Peo v. Williams

23CA0863 Peo v Williams 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0863
El Paso County District Court No. 16CR6583
Honorable Michael P. McHenry, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clarence Ray Williams,

Defendant-Appellant.

ORDERS AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE SULLIVAN
Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

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

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant
¶1 Defendant, Clarence Ray Williams, appeals the postconviction

court’s orders denying his (1) motion for a proportionality review of

his sentence and (2) motion for postconviction relief under Crim. P.

35(c). We affirm in part, reverse in part, and remand the case with

directions.

I. Background

¶2 In January 2018, Williams pleaded guilty to sexual assault on

a child under the age of fifteen in exchange for a sentence of ten

years to life on sex offender intensive supervised probation. Less

than a year later, however, the court revoked Williams’ probation

after finding that he had committed multiple violations. On

December 18, 2018, the court resentenced Williams to an

indeterminate term of two years to life in the custody of the

Department of Corrections followed by a mandatory indeterminate

period of parole.

¶3 In October 2020, Williams filed a pro se Crim P. 35(c) motion

for postconviction relief. Through counsel, Williams filed a

supplemental Crim. P. 35(c) petition in February 2022, asserting, as

relevant here, that his trial counsel provided ineffective assistance

of counsel because he failed to (1) file a notice of appeal of the order

1
revoking Williams’ probation and (2) advise Williams that he could

file a Crim. P. 35(b) motion to seek a sentence reduction following

his revocation. The court held a two-day hearing on Williams’

claims in November 2022 and January 2023.

¶4 On January 19, 2023, before the court had ruled on Williams’

postconviction claims, Williams moved for a proportionality review

of his sentence. The court subsequently denied Williams’ Crim. P.

35(c) claims and his motion for a proportionality review.

¶5 Williams now appeals. He contends that the court erred by (1)

denying his request for a proportionality review of his sentence,

which he asserts is grossly disproportionate; and (2) denying his

ineffective assistance of counsel claims. We conclude further

findings are necessary to resolve one part of his second contention;

we therefore reverse in part and remand for further proceedings.

Otherwise, we affirm.

II. Timeliness of Williams’ Request for Proportionality Review

¶6 As a threshold matter, the People argue that Williams’ motion

for a proportionality review is untimely under section 16-5-402,

C.R.S. 2024. We agree.

2
¶7 For all felonies except a class 1 felony, section 16-5-402(1)

requires that the defendant commence any collateral attack on the

validity of their conviction within three years of the date of

conviction. Although Crim. P. 35(c)(3)(V) allows defense counsel to

“add any claims” to the defendant’s original postconviction motion

that counsel believes have “arguable merit,” this provision doesn’t

extend the deadline for commencing a collateral attack. See People

v. Ambos, 51 P.3d 1070, 1071-72 (Colo. App. 2002) (“Contrary to

defendant’s suggestion, the timely commencement of a collateral

attack fails to toll the limitations period with respect to additional

postconviction claims not contained in the timely filed motion.”). As

a division of this court observed, “[t]he limitations period of [section]

16-5-402 would be rendered meaningless if a convicted defendant

could circumvent it by filing a timely Crim. P. 35(c) motion

containing only conclusory allegations and then supplementing

those allegations after the limitations period had expired.” Id. at

1072; see also People v. Moore-El, 160 P.3d 393, 395-96 (Colo. App.

2007) (section 16-5-402’s time bar applies to a defendant’s

postconviction request for a proportionality review).

3
¶8 The court sentenced Williams on December 18, 2018, but he

didn’t file his motion for a proportionality review until January 19,

2023, more than four years later. Williams makes no argument

that the delay was the product of justifiable excuse or excusable

neglect. See People v. Cordova, 199 P.3d 1, 4 (Colo. App. 2007).

¶9 Accordingly, we agree with the People that Williams’ motion for

proportionality review is untimely under section 16-5-402(1).

III. Ineffective Assistance of Counsel

¶ 10 Williams next contends that the postconviction court erred by

denying his claims that his trial counsel provided ineffective

assistance of counsel when counsel failed to (1) appeal the court’s

order revoking his probation and (2) seek a sentence reduction

under Crim. P. 35(b).

A. Applicable Law and Standard of Review

¶ 11 A defendant’s Sixth Amendment right to counsel includes the

right to effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 686 (1984). To prevail on an ineffective assistance of

counsel claim, a defendant must prove by a preponderance of the

evidence that (1) counsel’s performance was deficient and (2)

counsel’s deficient performance prejudiced the defendant. People v.

4
Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Strickland, 466 U.S. at

687).

¶ 12 To establish deficient performance, a defendant must prove

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

reasonableness.” Strickland, 466 U.S. at 688. To show prejudice, a

defendant must prove that, but for counsel’s unprofessional errors,

a reasonable probability exists that the outcome of the proceeding

would have been different. Davis v. People, 871 P.2d 769, 772

(Colo. 1994). “Because a defendant must show both deficient

performance and prejudice, a court may resolve the claim solely on

the basis that the defendant has failed in either regard.” People v.

Karpierz, 165 P.3d 753, 759 (Colo. App. 2006). The defendant

bears the burden of proving both Strickland prongs. People v.

Houser, 2020 COA 128, ¶ 31.

¶ 13 When reviewing a postconviction court’s ruling on a Crim. P.

35(c) motion, we defer to the court’s findings of fact if they have

record support, but we review its legal conclusions de novo. People

v. Sharp, 2019 COA 133, ¶ 12.

5
B. Analysis

1. Failure to Appeal Probation Revocation Order

¶ 14 A defendant whose probation is revoked may seek appellate

review of the court’s revocation order. See, e.g., People v. Carr, 524

P.2d 301, 302 (Colo. 1974).

¶ 15 When a defendant claims that trial counsel failed to perfect an

appeal, we don’t analyze the merits of the defendant’s appellate

claims. People v. Lancaster, 2018 COA 168, ¶ 11. “Rather, a

defendant who shows that counsel performed deficiently in failing to

perfect the defendant’s appeal will have established both prongs of

the Strickland test.” Id. This is so because “[t]he prejudice

resulting from the failure to file a notice of appeal is not in the

outcome of the proceeding, but in the forfeiture of the proceeding

itself.” People v. Long, 126 P.3d 284, 286-87 (Colo. App. 2005)

(citing Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)); accord Garza

v. Idaho, 586 U.S. 232, 242-43 (2019) (Flores-Ortega’s presumption

of prejudice applies “despite an appeal waiver”). However, the

defendant must “demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an

6
appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at

484.

¶ 16 In cases where the defendant didn’t instruct counsel to file an

appeal, our inquiry becomes twofold. First, we review whether

“counsel in fact consulted with the defendant about an appeal.” Id.

at 478. “Consult” in this context means “advising the defendant

about the advantages and disadvantages of taking an appeal, and

making a reasonable effort to discover the defendant’s wishes.” Id.

If counsel consulted with the defendant, then counsel is deficient

only if they failed to follow the defendant’s “express instructions”

regarding the appeal. Id.

¶ 17 Second, if counsel didn’t consult with the defendant about an

appeal, we ask “whether counsel’s failure to consult with the

defendant itself constitutes deficient performance.” Id. The

Supreme Court in Flores-Ortega explained this part of the inquiry as

follows:

[C]ounsel has a constitutionally imposed duty
to consult with the defendant about an appeal
when there is reason to think either (1) that a
rational defendant would want to appeal (for
example, because there are nonfrivolous
grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel

7
that he was interested in appealing. In making
this determination, courts must take into
account all the information counsel knew or
should have known. . . . Even in cases when
the defendant pleads guilty, the court must
consider such factors as whether the
defendant received the sentence bargained for
as part of the plea and whether the plea
expressly reserved or waived some or all appeal
rights. Only by considering all relevant factors
in a given case can a court properly determine
whether a rational defendant would have
desired an appeal or that the particular
defendant sufficiently demonstrated to counsel
an interest in an appeal.

Id. at 480.

¶ 18 Williams presented no evidence at the Crim. P. 35(c) hearing

that he specifically instructed his counsel to file an appeal. Thus,

his ineffective assistance claim turns on whether (1) counsel failed

to consult with him about an appeal; and (2) if so, whether that

failure to consult constitutes deficient performance. Id. at 478.

¶ 19 Turning to the first part of the Flores-Ortega analysis,

Williams’ trial counsel didn’t testify at the Crim. P. 35(c) hearing,

nor was he asked, whether he consulted with Williams about

appealing the court’s order revoking his probation (although all

agree that trial counsel didn’t perfect such an appeal). However,

trial counsel testified that he didn’t “send up an appellate packet

8
regarding the revocation hearing” and that he “should have done

more” to perfect Williams’ appeal. This testimony seems to suggest

that trial counsel either failed to consult with Williams about filing

an appeal or, if he did, that trial counsel failed to make a

“reasonable effort to discover [Williams’] wishes” regarding whether

to appeal. Flores-Ortega, 528 U.S. at 478. It also indicates, at a

minimum, that Williams didn’t instruct his trial counsel to not file

an appeal. But the district court made no findings as to whether

trial counsel consulted with Williams.

¶ 20 We also can’t determine whether Williams satisfied the second

part of the Flores-Ortega analysis because the court didn’t make

findings of fact or conclusions of law on that prong either. The

court admittedly heard some testimony tending to suggest that

Williams was interested in appealing the court’s order revoking his

probation. Williams’ trial counsel testified, for example, that

Williams relayed that he “wanted to get out of jail” and “wanted to

be released.” But we have no way of knowing how the court

weighed this testimony or evaluated trial counsel’s credibility. See

Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567 (Colo. 1991)

(postconviction court in a Crim. P. 35 proceeding is the trier of fact

9
and “determine[s] the credibility of the witnesses and the weight to

be given their testimony”); People v. Rodriguez, 786 P.2d 1079, 1082

(Colo. 1989) (“As an appellate court, we are not in the best position

for original fact-finding.”).

¶ 21 When coupled with the lack of any conclusions of law under

the Flores-Ortega standard, we can’t determine whether trial

counsel’s testimony, either alone or in combination with other

evidence, was enough for Williams to establish either that (1) a

rational defendant in Williams’ position would want to appeal or (2)

he reasonably demonstrated to counsel that he was interested in

appealing. 528 U.S. at 480. As a result, we conclude that a

remand for further proceedings is necessary. See People v. Brown,

2014 CO 25, ¶ 26 (“The trial court should place its findings on the

record; otherwise, appellate review may be impossible and remand

for development of the record may be necessary.”).

¶ 22 On remand, the postconviction court should make findings of

fact based on the existing record regarding (1) whether trial counsel

consulted with Williams about an appeal; (2) whether a rational

defendant in Williams’ position would want to appeal the order

revoking his probation (for example, because there were

10
nonfrivolous grounds for appeal); (3) whether Williams reasonably

demonstrated to his trial counsel that he was interested in

appealing the order revoking his probation; and (4) any other

circumstances bearing on whether trial counsel’s failure to perfect

Williams’ appeal constituted ineffective assistance of counsel. See

Flores-Ortega, 528 U.S. at 480 (describing examples of “highly

relevant” factors). Based on its findings, the court should also

make conclusions of law applying the Flores-Ortega legal standard.

In making its determination, the court must take into account all

the information that trial counsel knew or should have known,

keeping in mind that Williams bears the burden of proving his

ineffective assistance of counsel claim. See id.; Houser, ¶ 31.

¶ 23 Accordingly, we reverse the portion of the court’s order

denying Williams’ ineffective assistance of counsel claim that is

premised on his trial counsel failing to perfect an appeal of the

order revoking his probation, and we remand the case for further

proceedings consistent with this opinion.

2. Failure to Seek a Sentence Reduction Under Crim. P. 35(b)

¶ 24 Williams also contends that his trial counsel provided

ineffective assistance of counsel by failing to seek a sentence

11
reduction under Crim. P. 35(b) after he was resentenced. He argues

that, like the automatic prejudice he asserts resulted from counsel’s

failure to perfect an appeal, we must presume Strickland prejudice

from counsel’s forfeiture of his rights under Crim. P. 35(b).

¶ 25 Williams cites no authority, however, indicating that we

presume Strickland prejudice when counsel fails to timely seek a

sentence reduction under Crim. P. 35(b). And as the People point

out, at least one division of this court has evaluated whether an

attorney’s failure to seek a sentence reduction constitutes

ineffective assistance of counsel by requiring the defendant to show

actual prejudice under Strickland, not presuming prejudice. See

People v. Dunlap, 124 P.3d 780, 798 (Colo. App. 2004) (concluding

counsel wasn’t ineffective for failing to file a timely Crim. P. 35(b)

motion because defendant hadn’t “demonstrated a reasonable

likelihood that his sentence would have been reduced”); see also

Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984) (“No

court has held that failure to file [a Fed. R. Crim. P. 35(b)] motion

automatically constitutes ineffective assistance of counsel.”); People

v. Bailey, 846 N.E.2d 147, 150 (Ill. App. Ct. 2006) (rejecting

12
defendant’s argument that the court should presume prejudice

based on counsel’s failure to move to reconsider her sentence).

¶ 26 Moreover, Flores-Ortega’s presumption of prejudice applies

only when counsel’s conduct results in the forfeiture of an “entire

judicial proceeding.” 528 U.S. at 483; see Sharp, ¶¶ 28-31. A

“proceeding” in this context means “the whole of a discrete phase of

a criminal prosecution.” Sharp, ¶ 30. Colorado courts recognize

three such discrete proceedings: “(1) a trial proceeding, from the

commencement of the case to the resolution of all allowed post-

judgment, pre-appeal motions in the trial court; (2) an appellate

proceeding, including at least a defendant’s appeal as a matter of

right to this court; and (3) a postconviction proceeding under Rule

35(c).” Id. When counsel fails to file an individual motion or take

other action within a proceeding — for example, moving for a new

trial or a judgment of acquittal — such conduct doesn’t qualify for

Flores-Ortega’s presumption because the defendant hasn’t been

deprived of an entire proceeding. See Sharp, ¶¶ 31-34.

¶ 27 We conclude that a Crim. P. 35(b) motion for a sentence

reduction doesn’t constitute an “entire judicial proceeding” for

purposes of presuming prejudice. Flores-Ortega, 528 U.S. at 483.

13
Rather, a Crim. P. 35(b) motion is but one subpart of a larger

postconviction proceeding that is available to a convicted defendant.

Because trial counsel’s failure to file a Crim. P. 35(b) motion didn’t

cause Williams to forfeit an entire judicial proceeding to which he

was entitled, Williams was required to show actual prejudice from

counsel’s performance. See Sharp, ¶¶ 30-31. Williams makes no

argument on appeal regarding actual prejudice.

¶ 28 Accordingly, we perceive no error in the postconviction court’s

decision denying Williams’ claim that his trial counsel provided

ineffective assistance of counsel by failing to file a Crim. P. 35(b)

motion.

IV. Disposition

¶ 29 We affirm the orders in part, reverse the orders in part, and

remand to the postconviction court for further proceedings

consistent with this opinion.

JUDGE FREYRE and JUDGE SCHOCK concur.

14