Peo v. Maher

22CA1713 Peo v Maher 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1713
Arapahoe County District Court No. 12CR2354
Honorable Ryan J. Stewart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher John Maher,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE BERNARD*
Fox and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Polansky Law Firm, PLLC, Lisa A. Polansky, Boulder, Colorado, for
Defendant-Appellant, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Christopher John Maher, appeals the

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

affirm.

I. Background

A. The Crime, the Trial, and the Conviction

¶2 Defendant dated a woman, K.C., who was the mother of the

eleven-year-old victim in this case. Defendant and K.C.’s

relationship lasted from August 2006 until June 2012. During that

time, K.C. and the victim frequently visited defendant’s home.

Defendant’s daughters, who were sixteen years old and thirteen

years old, were often there.

¶3 During these visits, the victim claimed defendant repeatedly

put one of his fingers in her vagina or in her anus. He rubbed his

genitals against her at least once between 2007 and 2012. Most of

the incidents happened at defendant’s home, and at least one of

them occurred in a swimming pool.

¶4 In October 2012, four months after K.C. and defendant broke

up, the victim told her mother about the sexual abuse. K.C.

immediately called the police.

1
¶5 In November 2012, working with the police, K.C. invited

defendant to a local restaurant. She wore a wire.

¶6 The meal lasted about four hours, and defendant and K.C.

each drank two or three beers. K.C. told defendant that the victim

had claimed he had sexually assaulted her.

¶7 Defendant admitted he had sexual thoughts about the victim,

although he added she had behaved provocatively toward him. He

felt “a lot of guilt” about being sexually aroused by her. He said he

had “done things . . . that [he] shouldn’t have,” and those things

were “wrong.” He thought he should “get help.” “[A]s far as

inappropriate action [was] concerned, it was like momentary,

surprise kind of like, in a way, I don’t want to say it was an accident

necessarily . . . .” He added, “Did I think about her inappropriately?

Yeah. Did I stop situations when I should have stopped them? No.”

He did not admit to putting his fingers in the victim’s vagina or

anus, but he said, “I think I did something.”

¶8 He referred to three specific incidents involving the victim that

had occurred on the same weekend: one in a swimming pool, which

was “pretty bad”; one in a truck; and one in a store. He thought he

2
“drank a lot” that weekend, and he “didn’t really have his head on

straight.”

¶9 The police arrested defendant a short time later. The

prosecutor’s office charged him with seven counts of sexual assault

on a child resulting in a pattern of abuse of the victim. The

prosecution later dismissed four of those counts.

¶ 10 In July 2014, a jury convicted defendant of the remaining

three counts. His theory of defense at trial was that the events

could not have unspooled the way the victim described them

because too many people were always around, and none of them

saw anything untoward happen between defendant and the victim.

B. Direct Appeal and Crim. P. 35(c) Hearing

¶ 11 Maher appealed his convictions. A division of this court

affirmed. See People v. Maher, (Colo App. No. 14CA2221, Apr. 20,

2017)(not published pursuant to C.A.R. 35(e)).

¶ 12 In 2020, defendant filed a Crim. P. 35(c) motion. As is relevant

to our analysis, it raised two groups of claims.

¶ 13 In the first group, defendant asserted that, at the time of his

2014 trial, he was a hard core, functional alcoholic who needed to

drink during the trial to avoid showing withdrawal symptoms. He

3
claimed he was incompetent to stand trial, he was incompetent to

waive his right to testify, and he would have accepted a plea

disposition offered by the prosecution if he had been sober.

¶ 14 In the second group, he submitted that his trial counsel had

been ineffective because counsel did not (1) notice the symptoms of

his excessive drinking and, therefore, counsel did not raise the

issue that he was incompetent to stand trial; (2) call his daughters

to testify during the trial about their observations during the period

when the victim said defendant had abused her; and (3) challenge

the testimony of the prosecution’s expert who had physically

examined the victim via cross-examination and by calling a defense

expert.

¶ 15 In May 2022, the postconviction court held a four-day

evidentiary hearing that primarily focused on defendant’s drinking

before and during the trial. In August 2022, the court issued an

order denying defendant’s Crim. P. 35(c) motion.

II. Competency Claims

¶ 16 The postconviction court determined that defendant had not

shown he was incompetent to stand trial, or that he was

incompetent or too drunk to consider and reject plea dispositions

4
the prosecution had offered or to validly waive his right to testify.

He submits the court’s factual findings concerning these issues

were not supported by the record. As a result, he continues, the

court’s determination that he did not satisfy his burden to show he

was incompetent during these proceedings was flawed. These

errors, he finishes up, denied him his right to due process of law.

We disagree.

A. Standard of Review and Applicable Law

¶ 17 When we review a postconviction court’s decision to deny a

Crim. P. 35(c) motion after holding a hearing, we review the court’s

legal conclusions de novo, but we defer to the court’s factual

findings if the evidence supports them. People v. Villanueva, 2016

COA 70, ¶ 28.

¶ 18 We review de novo whether a defendant’s waiver of a

constitutional right was knowing and voluntary, but we defer to the

trial court’s findings of fact. People v. Davis, 2018 COA 113, ¶ 35.

¶ 19 In a Crim. P. 35(c) proceeding, a court presumes the validity of

a defendant’s conviction. People v. Naranjo, 840 P.2d 319, 325

(Colo. 1992). “[T]he burden is upon the defendant, as the moving

5
party, to establish his claim by a preponderance of the evidence.”

Id.

¶ 20 “The weight and credibility to be given the testimony of

witnesses in a Crim. P. 35(c) hearing is within the province of the

[postconviction] court and when there is sufficient evidence in the

record to support the court’s findings, its ruling will not be

disturbed on review.” People v. Williams, 908 P.2d 1157, 1161

(Colo. App. 1995). It is the postconviction court’s job “to resolve

conflicts, inconsistencies, and disputes in the evidence.” People v.

Poe, 2012 COA 166, ¶ 14.

¶ 21 We review a postconviction court’s competency determination

for an abuse of discretion. People v. Rodriguez, 2022 COA 98, ¶ 12.

A court abuses its discretion if its decision is “manifestly arbitrary,

unreasonable, or unfair, or it applies an incorrect legal standard.”

Id.

¶ 22 The United Sates and Colorado Constitutions preclude trying

mentally incompetent defendants. People v. Zapotocky, 869 P.2d

1234, 1237 (Colo. 1994)(citing Drope v. Missouri, 420 U.S. 162, 172

(1975)). In Colorado, defendants are considered “incompetent to

proceed” if they suffer from a mental disability that renders them

6
unable to have “sufficient present ability to consult with the

defendant’s lawyer with a reasonable degree of rational

understanding,” or, if, because of a mental disability, they do not

have a “rational and factual understanding of the criminal

proceedings.” § 16-8.5-101(12), C.R.S. 2024.

¶ 23 Mental disability is defined by statute as a substantial

disorder “of thought, mood, perception, or cognitive ability that

results in marked functional disability, significantly interfering with

adaptive behavior.” § 16-8.5-101(15). But this statute excludes

from the definition of mental disability “acute intoxication from

alcohol or other substances . . . [and] any substance abuse

impairment resulting from recent use or withdrawal,” unless the

substance abuse “results in a long-term, substantial disorder of

thought, mood, or cognitive ability.” Id.

¶ 24 The law presumes defendants are competent. People v.

Karpierz, 165 P.3d 753, 758 (Colo. App. 2006). The burden

therefore rests on them to prove they are incompetent. Id.

¶ 25 Defendants have a constitutional right to testify under the

United States and Colorado Constitutions. U.S. Const. amend. VI;

Colo. Const. art. II, § 25. For a waiver of the right to testify to be

7
valid, the trial court must advise the defendant of that right and

ensure that the defendant’s waiver is knowing, voluntary, and

intelligent. People v. Curtis, 681 P.2d 504, 515 (Colo. 1984), holding

modified by People v. Blehm, 983 P.2d 779 (Colo. 1999). “In order

for a defendant to make a voluntary, knowing, and intelligent

decision, he must be aware of his right to testify, the consequences

of testifying, and his right to take the stand regardless of his

counsel’s advice to the contrary.” Roelker v. People, 804 P.2d 1336,

1338 (Colo. 1991).

B. Postconviction Hearing Testimony and the Postconviction
Court’s Factual Findings

¶ 26 After listening to the testimony at the four-day hearing, the

postconviction court made extensive factual findings, which we

summarize next.

1. Trial Attorneys

¶ 27 Two pairs of attorneys represented defendant from the time of

the filing of charges through the end of the trial. Defendant never

confessed to any of his attorneys that he had sexually abused the

victim.

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a. Attorneys Bresee and Albani

¶ 28 The first attorney defendant hired was Collin Bresee, who was

shortly joined by Peter Albani.

¶ 29 At the beginning of their representation, defendant seemed

very involved in his case and focused on its details. Bresee thought

that defendant was a “great client,” a “smart guy” who was “very

attentive.” At the beginning of the case, defendant expressed an

interest in a plea disposition.

¶ 30 Bresee thought defendant would be convicted if the case went

to trial because of the statements defendant made to K.C. while she

was wearing a wire at the restaurant. So, when the prosecutor

offered defendant a plea disposition, Bresee thought defendant

should at least consider it.

¶ 31 The plea disposition’s conditions included undergoing

intensive probation supervision, spending up to two years in jail,

registering as a sex offender, and completing a sex offense-specific

evaluation. Defendant told Bresee he did not want to go to jail,

register as a sex offender, or make the statements necessary to

complete the evaluation.

9
¶ 32 Defendant’s seeming denial of the evidence and the potential

consequences of losing at trial did not strike Bresee as odd. In “the

majority of [Bresee’s] experience, people either start off . . . in full

denial or moderate denial.” But defendant’s state of denial did not

make Bresee “concerned [about defendant’s] competency” because

defendant never told him that he abused the victim.

¶ 33 As is pertinent to our analysis, three things happened while

Bresee and Albani were representing defendant.

¶ 34 First, defendant changed as the case progressed. His

girlfriend began to dominate his meetings with the attorneys.

Bresee also noticed he seemed to gain a lot of weight, perhaps

because he often went out to dinner with his girlfriend. Albani did

not attribute his weight gain to abusing alcohol because he had

other clients put on a lot of weight during the pendency of their

criminal cases due to stress.

¶ 35 Second, the prosecution notified Bresee that defendant

violated a condition of his bond by drinking, but the prosecutor

elected not to ask the court to revoke his bail. Bresee discussed

this report with defendant, who denied he had been drinking.

10
¶ 36 Third, defendant decided to waive his right to a preliminary

hearing. He did not appear in court at the time scheduled for the

preliminary hearing. When one of his attorneys contacted him to

find out why he missed the court appearance, he replied that he

thought he did not have to come if he waived the preliminary

hearing. Bresee did not think that any sort of cognitive impairment

caused defendant to miss the hearing.

¶ 37 Neither Bresee nor Albani noticed defendant drinking

excessively, nor did they think he was an alcoholic.

¶ 38 Bresee and Albani represented defendant for about eight

months until they withdrew, citing “an irreconcilable difference.”

According to Bresee, this difference had come about because

defendant was unwilling to meet with his attorneys to discuss the

statements he had made to K.C. in the restaurant. (Bresee thought

it was important to discuss these statements with defendant before

he decided to turn down the prosecution’s proposed plea

disposition.)

b. Attorneys Silver and Frerich

¶ 39 Defendant then hired Neil Silver and Amy Frerich to represent

him. Silver, in turn, hired an investigator.

11
¶ 40 In the run up to the trial, the prosecution offered a second

plea disposition. Silver explained it to defendant, who rejected it,

saying that he would not admit the allegations against him. Silver

thought he understood the offer.

¶ 41 Neither Silver nor Frerich ever thought defendant was

intoxicated when they were around him, and they never received

any reports he had been drinking.

¶ 42 Silver only noticed defendant had been drinking on one

occasion, which was when he and the investigator dropped by

defendant’s home. According to the investigator, Silver asked

defendant whether he had been drinking. When he answered he

had been drinking, Silver told him not to appear like that in front of

the jury and to cut down on his drinking. Silver did not remember

this conversation.

¶ 43 Frerich sat next to defendant during the trial. She never

thought he had been drinking or was intoxicated. For example, she

did not smell the odor of an alcoholic beverage and defendant did

not slur his words.

¶ 44 Defendant spoke with his attorneys repeatedly throughout the

trial. They thought he was intelligent and engaged during these

12
conversations, and they never formed the opinion he was

intoxicated. According to the investigator, Silver thought

defendant’s poor hygiene, sloppy grooming, and red face would not

look good in front of the jury.

2. Evidence of Defendant’s Drinking

¶ 45 After hearing all the testimony, the postconviction court found

that defendant “suffered from alcohol dependency” while this case

was pending. As the trial approached, the amount of alcohol he

ingested increased, and it led him to put on “a significant amount of

weight.”

¶ 46 The trial court incarcerated defendant after the jury convicted

him. A sheriff’s deputy gave him a portable breath test. Its result

was .159, which surprised the deputy because the deputy did not

think defendant appeared to be intoxicated.

¶ 47 Defendant told the deputy he had been drinking the night

before; he said that he drank all the time. He suffered from alcohol

withdrawal at the jail, and he was given medication to alleviate his

symptoms.

¶ 48 At his presentence investigation, defendant said he did not

have an alcohol problem.

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¶ 49 Defendant’s ex-wife told the postconviction court his drinking

increased after his arrest. She described one incident in which she

thought he was intoxicated when he met her at a bank to have

some documents notarized. But she added he was a “functioning

alcoholic,” and she thought he understood the documents he

signed. She never told any of defendant’s trial attorneys she had

“any concerns about his alcohol abuse.”

¶ 50 Defendant’s girlfriend believed alcohol impaired defendant’s

ability to understand what happened during the trial. He drank

before and after each day’s proceedings. She drove him to the

courthouse during the trial, and he would often instruct her to stop

at a liquor store. He was sweaty, and he would start shaking if he

went too long without a drink. She also thought he was confused

when he met with Silver and Frerich to talk about whether he

should testify. She said she told Silver and Frerich she had

concerns about his drinking; they testified this did not happen.

¶ 51 No other witnesses who testified at the postconviction hearing

thought defendant smelled of alcohol or seemed intoxicated during

the trial. No one — not his four attorneys and not the trial court —

suggested he was incompetent to stand trial.

14
¶ 52 Defendant testified at the Crim. P. 35(c) hearing. He said he

started drinking more after his arrest to the point he became

physically dependent. He would drink to stop tremors he

experienced and to keep from experiencing violent withdrawal

symptoms. He felt he had no choice but to drink: he “required it”

“in order to operate.”

¶ 53 As the trial progressed, defendant woke up with withdrawal

symptoms more frequently. He drank to stem his shaking,

difficulties in his breathing, the feeling of fluid in his lungs, and

nausea. He could not think clearly, either when sober or when

drunk, and he could not get dressed for court without his

girlfriend’s help. Because of his physical condition, he “doubt[ed]”

he would have been able to testify.

¶ 54 Defendant offered the testimony of a forensic psychiatrist, Dr.

Karen Fukutaki, at the hearing. In 2020, she evaluated whether

defendant was competent at his 2014 trial. See People v. Pendleton,

2015 COA 154, ¶ 11 (“Although retrospective competency

determinations are not favored, they are permitted whenever the

record, together with any additional evidence available, allows the

15
court to make an accurate assessment of the defendant’s

competency.”).

¶ 55 Dr. Fukutaki decided there was “substantial evidence that

[defendant] was not competent” during his 2014 trial because he

suffered from a severe alcohol use disorder. Although she required

additional information to reach a more definitive opinion, she also

“strongly suspected” he was suffering from a neurocognitive

impairment because he had memory lapses.

¶ 56 To reach her opinion, she spoke with defendant. She said he

displayed “comprehension difficulties . . . years after he had

stopped drinking.” These difficulties required her to ask her

questions with specificity because, otherwise, “he wasn’t able to

comprehend what I was actually asking.” She thought his “ability

to cognitively process information verbally provided to him” would

have been “compromised” during the trial.

¶ 57 Dr. Fukutaki also interviewed defendant’s ex-wife and his

girlfriend, looked at historical records, and reviewed transcripts of

the trial. She did not speak with defendant’s four trial attorneys.

16
¶ 58 The postconviction court decided that, for several reasons, Dr.

Fukutaki’s opinion was insufficient to show defendant suffered from

a mental disability during his trial.

¶ 59 First, the court observed that Dr. Fukutaki based her report

on limited information: she did not interview any of defendant’s

former attorneys.

¶ 60 Second, Dr. Fukutaki’s opinion partially rested on an

exchange in a trial transcript between the trial court and defendant

when he was deciding whether he would testify. At one point, when

asked whether he understood the court’s advisement of rights, he

said, “I’m sorry, I missed that.” Dr. Fukutaki thought this showed

he did not understand the advisement. Incorporating nearby lines

of the transcript, the court thought defendant had been talking with

his attorney and had missed the court’s question. And, during this

advisement, the trial court said defendant had been “very attentive”

throughout it.

¶ 61 Third, the court discounted the persuasiveness of Dr.

Fukutaki’s statement that she “strongly suspected” defendant was

suffering from a neurocognitive impairment because she admitted

17
she would need more information to reach a more definitive

diagnosis.

¶ 62 Fourth, the court thought Dr. Fukutaki ignored parts of the

trial transcript that were inconsistent with her medical opinion, she

seemed to be unwilling to answer at least one of the prosecutor’s

questions, and she resisted admitting to “deficiencies” in her

opinion. The court felt these things undermined her credibility and

showed she was biased to render testimony favorable to defendant.

¶ 63 The court also decided that, even if it found Dr. Fukutaki’s

testimony credible, it would still reject defendant’s incompetency

claim because the record only showed that he was voluntarily

intoxicated during the trial, not that he was incompetent.

C. The Postconviction Court’s Order

¶ 64 The postconviction court held defendant was required to show,

under section 16-8.5-101(15), that his alcohol abuse qualified as a

mental impairment because it resulted in a “long-term substantial

disorder of thought, mood, or cognitive ability.” After that, he would

have to establish, under section 16-8.5-101(12), that (1) he did not

have a “sufficient” ability to consult with his attorneys “with a

reasonable degree of rational understanding in order to assist the

18
defense,” or (2) he did not have “a rational and factual

understanding of the criminal proceedings.”

¶ 65 The court determined defendant had not shown he suffered

from a mental impairment. It added that “the only credible

evidence suggest[ed]” defendant was “either voluntarily intoxicated

during portions of the trial or drinking to avoid symptoms of

withdrawal.” As a result, he was not incompetent to proceed under

section 16-8.5-101(12) because he had not shown his alcohol use

resulted in a “long-term, substantial disorder of thought, mood or

cognitive ability.” § 16-8.5-101(12), (15).

¶ 66 The postconviction court turned to defendant’s assertion that

he did not knowingly, intelligently, and voluntarily waive his right to

testify because he was incompetent. In deciding defendant had not

offered sufficient evidence to establish this claim, the court pointed

to several things.

¶ 67 The trial court spoke directly to defendant during the

advisement. Defendant’s responses were contextually appropriate.

He appeared to know where he was and what he was doing. At one

point, he asked for more time to consult with his attorneys, and the

court recessed the proceedings so he could do so. When the trial

19
court recalled the case, defendant said he had decided not to testify.

He said the decision was his, but he had relied on his attorneys’

advice in making it.

¶ 68 Based on these things, the postconviction court decided

defendant was “perceiving accurately, interpreting and/or

responding to the world around him.”

¶ 69 The postconviction court then determined the trial court’s

ruling that defendant had knowingly, intelligently, and voluntarily

waived his right to testify was supported by the record. Defendant

knew he had the right to testify or not to testify, he understood the

consequences of either decision, he was aware the decision was his,

and he knew he could decide to testify even if his attorneys advised

against it.

D. Analysis

1. Competency to Stand Trial

¶ 70 Defendant contends it was manifestly unreasonable for the

postconviction court to dismiss Dr. Fukutaki’s testimony, focusing

only on some portions of her testimony instead of looking at it

“holistically.” But it was up to the court to weigh her credibility and

20
to determine the weight of her testimony. Williams, 908 P.2d at

1161.

¶ 71 There was a conflict, a dispute, between Dr. Fukutaki’s

testimony and the testimony of the four attorneys. See Poe, ¶ 14.

Just like the postconviction court was not required to accept the

testimony of the four attorneys, it was not obligated to reject it and

only accept Dr. Fukutaki’s testimony. See Kim v. Grover C. Coors

Tr., 179 P.3d 86, 97 (Colo. App. 2007)(“[T]he trier of fact may reject

unpersuasive expert testimony, even if uncontroverted.”).

¶ 72 The record shows the postconviction court had reason to be

concerned that Dr. Fukutaki had not spoken with the four

attorneys. If she had, she would have learned they thought

defendant had rational conversations with them, he seemed to

understand what was happening in court, and he did not appear

intoxicated.

¶ 73 Perhaps this information would have changed Dr. Fukutaki’s

mind; perhaps not. But the record supports the postconviction

court’s concern that not interviewing the attorneys was a significant

omission, particularly because they had first-person information

about defendant’s appearance and behavior during the critical

21
period leading up to and including his trial. During that time, the

attorneys spent a lot of time with defendant; indeed, they were often

seated or standing right next to him. Silver and Frerich had

repeated conversations with him about his trial. And the trial

court, which observed him throughout the trial, did not raise

concerns about his competency.

¶ 74 The attorneys and the trial court had the benefit of closely

interacting with defendant at the time of the trial, while Dr.

Fukutaki was brought into the case about six years after the trial.

See Williams v. Woodford, 384 F.3d 567, 608 (9th Cir. 2004)(“[W]e

disfavor retrospective determinations of incompetence, and give

considerable weight to the lack of contemporaneous evidence of a

petitioner’s incompetence to stand trial.”).

¶ 75 It is true that defendant’s ex-wife and girlfriend testified about

defendant’s drinking during and around the time of the trial. But

the postconviction court did not reject their testimony. Recall the

court found defendant had been drinking during the trial to the

point he “suffered from alcohol dependency.” The court decided

defendant had not shown, under section 16-8.5-101(12) and (15),

that he suffered from a mental impairment denying him either (1) a

22
sufficient ability to consult with his attorneys with a reasonable

degree of rational understanding to assist them in his defense, or

(2) a rational and factual understanding of the proceedings in his

case.

¶ 76 While defendant presented evidence at the postconviction

hearing indicating he was incompetent during his trial, there was

also evidence he was competent. We conclude that the latter

evidence supports the postconviction court’s written decision.

Contrary to defendant’s implication, we cannot reweigh the

evidence, make our own credibility findings, or substitute our

judgment for the postconviction court’s. People v. Sharp, 104 P.3d

252, 256 (Colo. App. 2004). We therefore conclude that the

postconviction court’s decision was not an abuse of discretion

because it was not manifestly arbitrary, unreasonable, or unfair

and that the court did not apply an incorrect legal standard. See

Rodriguez, ¶ 12.

¶ 77 For similar reasons, we also reject defendant’s claim that he

was not rational enough to decide whether to accept the

prosecution’s proposed plea dispositions. Defendant claimed

during the postconviction hearing he would have accepted a plea

23
disposition had he been competent. But the record also contains

evidence that he told Bresee he would not accept a plea disposition,

and he would not admit he molested the victim.

¶ 78 Silver testified he communicated the plea offer to defendant,

defendant understood it, and defendant was aware of the

consequences of going to trial. Relying on our previous conclusion

that the record supports the postconviction court’s determination

that defendant had not shown he was incompetent, we conclude

that the record also supports the court’s determination that he

understood the proposed plea dispositions and knowingly rejected

them. As a result, that determination was not an abuse of

discretion. See id.

2. Waiver of the Right to Testify

¶ 79 Defendant contends the postconviction court’s determination

that he voluntarily waived his right to testify was not supported by

sufficient evidence in the record. We disagree.

¶ 80 Defendant asserts his intoxication, or his putative mental

impairment rendered him incapable of waiving his right to testify.

In support of this assertion, he points to the testimony from the

Crim. P. 35(c) hearing, in which he said (1) he was convulsing and

24
“could barely stand up” when the trial court gave him the Curtis

advisement, and (2) he was confused during the meetings with

Silver and Frerich.

¶ 81 We conclude the record supports the postconviction court’s

determination that defendant’s waiver of his right to testify was

voluntary. No one corroborated his claim he was convulsing during

the advisement, including Silver and Frerich, who were standing

close to him. Indeed, they did not think he was intoxicated, he had

trouble understanding the advisement, or he was confused. The

trial court made no mention of anything suggesting convulsions,

and the transcript of the advisement shows defendant responded

appropriately to the court’s questions.

III. Ineffective Assistance of Counsel Claims

¶ 82 Defendant contends the postconviction court erred when it

denied his claims that Silver and Frerich were ineffective. We

disagree.

A. Standard of Review and Applicable Law

¶ 83 To prevail on an ineffective assistance of counsel claim, a

defendant must prove that counsel’s performance was deficient and

that the deficient performance prejudiced the defendant. Strickland

25
v. Washington, 466 U.S. 668, 687 (1984). To establish trial

counsel’s deficient performance, the defendant must prove that

counsel’s conduct fell outside the wide range of professionally

competent representation. Id. at 690; People v. Sherman, 172 P.3d

911, 913 (Colo. App. 2006). To establish prejudice, the defendant

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

unprofessional errors, the result of the proceeding would have been

different.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). “In this

context, a reasonable probability means a probability sufficient to

undermine confidence in the outcome.” Id. A claim must be denied

if a defendant does not prove either deficient performance or

prejudice. People v. Chipman, 2015 COA 142, ¶ 32.

B. Analysis

1. Raising Competency

¶ 84 Defendant asserts Silver and Frerich were ineffective because

they did not “investigate or raise competency” and they did not

“ensure” defendant “understood the legal proceedings.” We

concluded above that the record supports the postconviction court’s

determination that defendant had not shown he was incompetent

during his trial. And Silver and Frerich testified they had no reason

26
to question defendant’s competency. So we further conclude the

record supports the postconviction court’s determination that Silver

and Frerich “would not have been expected to raise [defendant’s]

competency.” Indeed, even defendant’s expert witness on criminal

defense admitted he would only have conducted an inquiry into the

extent of a client’s alcohol abuse if he had concerns about the

client’s competency.

2. Calling Defendant’s Daughters to Testify at Trial

¶ 85 Defendant’s daughters testified at the Crim. P. 35(c) hearing.

¶ 86 Defendant contends that Silver and Frerich were ineffective

because they did not call his daughters to testify on his behalf.

They would have provided exculpatory testimony, he continues,

because they would have told the jury the victim was physically

affectionate with defendant, often leading him to tell her to get off

him. They added they never saw defendant touch the victim in an

inappropriate way. They also would have contradicted the victim’s

testimony that the daughters had once walked into the kitchen

when defendant was pressing himself against her.

¶ 87 Silver and Frerich decided against calling defendant’s

daughters to testify at trial because they feared alienating or boring

27
the jury. The postconviction court determined that, although some

defense counsel might have called the daughters to the stand, Silver

and Frerich’s decision not to do so was “a strategic one within the

wide range of reasonable representation.”

¶ 88 K.C. and the victim’s brother testified at the trial that no one

saw defendant sexually abuse the victim, so Silver and Frerich

thought that the daughters’ testimony would have been cumulative,

and, according to Frerich, perhaps traumatic for them as they

would be testifying in their father’s trial.

¶ 89 Their testimony would also have corroborated some of the

victim’s testimony. They would have admitted that the victim

occasionally sat on defendant’s lap, including twice in the

swimming pool.

¶ 90 Defendant claims that Silver and Frerich’s investigation into

what defendant’s daughters would have to say was not meaningful.

Assuming, without deciding, this was the case, defendant did not

establish, but for this putative unprofessional error, there was a

reasonable probability their testimony would have been sufficient to

undermine confidence in the jury’s verdict. See Ardolino, 69 P.3d at

76. Their testimony did not address or undermine the

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prosecution’s most compelling evidence corroborating the victim’s

testimony: defendant’s recorded statements to K.C. at the

restaurant.

3. The Victim’s Lack of Injury or Pain

¶ 91 A doctor examined the victim shortly after she reported the

abuse. The doctor did not find any evidence of injury to the victim’s

genitals. Defendant asserts this medical finding was inconsistent

with the victim’s claim that defendant had penetrated her vagina

with his finger. He submits that Silver and Frerich were ineffective

because they should have presented evidence, through cross-

examination of the prosecution’s expert and via the testimony of a

defense expert, explaining that repeated vaginal and anal abuse,

such as the victim described, would have caused discernible

damage, thus undercutting the victim’s credibility.

¶ 92 For example, a prosecution expert testified at trial on direct

examination that touching a prepubescent girl’s hymen would have

been painful, akin to feeling like being touched by a knife. Silver

only asked three questions of this expert, which were aimed at

demonstrating that an examination showing no injury was

consistent with no sexual abuse having occurred.

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¶ 93 The postconviction court determined that Silver’s limited

cross-examination was appropriately strategic because it

emphasized the prospect that defendant did not abuse the victim.

Silver was also able to argue to the jury, based on the expert’s

direct examination, that any touching of the victim’s hymen would

have hurt: “Did she ever make a sound or express hurt or fear with

other people around? No. Never did.”

¶ 94 Defendant submits Silver and Frerich should have retained a

defense expert to testify about how repeated digital penetration

would be expected to cause visible injuries. But the prosecution

theorized at trial that the victim had been mistaken when she said

defendant had digitally penetrated her vagina. Rather, the

prosecution argued, defendant merely penetrated her labia without

penetrating her vagina. Consistent with the prosecution’s trial

theory, the expert whom defendant called to testify at the Crim. P.

35(c) hearing said she would not expect to see injuries if there was

only penetration of a girl’s labia.

¶ 95 We conclude the record supports the postconviction court’s

determination that defendant was not prejudiced because Silver

and Frerich did not call a defense expert or because Silver only

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engaged in limited cross-examination of the prosecution’s expert at

trial.

¶ 96 Defendant claims the postconviction court used an improper

legal standard when it wrote that the testimony of the expert who

testified at the Crim. P. 35(c) hearing “would not have changed the

outcome” of the trial. Considering the court properly quoted the

standard repeatedly in other contexts, it appears the court was

simply trying to summarize the proper standard at the end of a long

order.

¶ 97 Defendant asserts that more comprehensive medical testimony

and cross-examination was necessary because “the entirety of the

case rested on [the victim’s] credibility.” But, again, this assertion

ignores the incriminating statements defendant made to K.C. at the

restaurant.

4. Defendant’s Statements at the Restaurant

¶ 98 Defendant asserts Silver and Frerich’s “handling” of

defendant’s statements to K.C. at the restaurant was “deficient.”

They should have, he continues, “prepared” him “to testify as to his

intent when he made each and every statement,” arguing that he

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“would have said anything” to prevent K.C. from calling the police

and then falsely accusing him of sexual assault.

¶ 99 This contention is moot because it assumes defendant would

have testified at trial. Defendant chose not to testify. And, as we

concluded above, the record supports the postconviction court’s

determination that defendant did not satisfy his burden of proving

(1) he was incompetent to decide whether he would testify at trial,

and (2) his waiver of his right to testify was not knowing, voluntary,

and intelligent.

5. Counsel’s Explanation of the Prosecution’s Second Proposed
Plea Disposition

¶ 100 During oral argument, defendant’s appellate counsel indicated

defendant raised an independent ineffective assistance of counsel

claim in his addendum to the original Crim. P. 35(c) motion: Silver

and Frerich were ineffective because they did not adequately

explain to defendant that the prosecution’s second proposed plea

disposition included a determinate sentence to incarceration

instead of an indeterminate one. (Recall we have already concluded

the record supports the postconviction court’s determination that

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he understood the proposed plea disposition and knowingly rejected

it.)

¶ 101 But defendant’s addendum did not focus on the nature of

Silver and Frerich’s explanation of the offer; it focused on his

alleged incompetency. For example, the addendum argued, “based

on his incompetency as a result of alcohol dependence and

intoxication leading up to a during the trial,” he was unable “to

rationally weigh the risks of trial,” to make “informed decisions

about whether to accept a favorable plea offer, or to decide the

relative risks of pleading guilty or going to trial.” Defendant later

reaffirmed that his putative incompetency was the axle around

which this contention spun in his reply to the prosecution’s

response to his Crim. P. 35(c) motion by repeating the language we

quoted earlier in this paragraph.

¶ 102 “Allegations not raised in a Crim. P. 35(c) motion or during the

hearing on that motion and thus not ruled on by the trial court are

not properly before this court for review.” People v. Goldman, 923

P.2d 374, 375 (Colo. App. 1996). Because defendant did not raise

this issue before the postconviction court, we will not consider it.

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6 Cumulative Error

¶ 103 Finally, defendant asserts his ineffective assistance of counsel

claims rise to the level of cumulative error. “For reversal to occur

based on cumulative error, a reviewing court must identify multiple

errors that collectively prejudice the substantial rights of the

defendant, even if any single error does not. Stated simply,

cumulative error involves cumulative prejudice.” Howard-Walker v.

People, 2019 CO 69, ¶ 25 (citation omitted).

¶ 104 We have rejected all defendant’s contentions of ineffective

assistance of counsel, including claims that he was prejudiced by

the postconviction court’s putative errors. We therefore reject his

cumulative error claim.

IV. Disposition

¶ 105 The postconviction court’s order is affirmed.

JUDGE FOX and JUDGE HARRIS concur.

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