People v. Lopez

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 28, 2025

2025COA73

No. 23CA0430, People v. Lopez — Crimes — Assault in the First
Degree — Serious Bodily Injury with a Deadly Weapon;
Constitutional Law — Eighth Amendment — Proportionality
Review — Per Se Grave or Serious Offenses

A division of the court of appeals holds that first degree

assault (causing serious bodily injury by means of a deadly

weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se grave or

serious offense after Wells-Yates v. People, 2019 CO 90M. The

defendant’s twenty-one-year sentence for that offense thus does not

raise an inference of gross disproportionality. The division also

holds that the defendant’s allegations of ineffective assistance of

counsel were insufficient to warrant a hearing under Crim. P. 35(c).
COLORADO COURT OF APPEALS 2025COA73

Court of Appeals No. 23CA0430
Jefferson County District Court No. 18CR3242
Honorable Robert Lochary, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Isaiah Josiah Lopez,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

Announced August 28, 2025

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

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Isaiah Josiah Lopez, appeals the denial of his

Crim. P. 35(c) motion without a hearing. We affirm. In doing so, we

hold that first degree assault (causing serious bodily injury with a

deadly weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se

grave or serious offense after Wells-Yates v. People, 2019 CO 90M.

I. Background

¶2 After an altercation during which he shot the victim in the

knee, Lopez was charged with first degree assault, felony menacing,

child abuse, two counts of reckless endangerment, two counts of

possession of a weapon by a previous offender, three counts of

violating a protective order, and three habitual criminal counts.

¶3 On the morning of the scheduled trial, Lopez pleaded guilty to

first degree assault in exchange for dismissal of the other counts.

Because first degree assault is both an extraordinary risk crime and

a per se crime of violence, Lopez acknowledged that he could be

sentenced to prison for ten to thirty-two years. See § 18-3-

202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a), (10)(b)(XII),

C.R.S. 2025; § 18-1.3-406, C.R.S. 2025. The plea agreement

specified that the prosecution made no sentencing concessions.

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¶4 The district court sentenced Lopez to twenty-one years in

prison, to run consecutively to twelve-year concurrent prison

sentences he was serving in three other cases. Lopez did not

appeal. Four months later, he moved for sentence reconsideration

under Crim. P. 35(b), which the district court denied.

¶5 Lopez later filed a timely pro se Crim. P. 35(c) motion,

requesting a proportionality review of his sentence and asserting

two other claims for relief. The district court appointed counsel,

who filed two supplements. The supplements incorporated the

three claims Lopez had asserted pro se and added twelve claims of

ineffective assistance of counsel. The prosecution filed a response.

¶6 The district court denied the motion, including the claims

raised in the supplements, without a hearing. As relevant to this

appeal, the court concluded that (1) Lopez’s request for a

proportionality review was not properly brought under Crim.

P. 35(c), and (2) the ineffective assistance of counsel claims were

conclusory and did not allege facts sufficient to support a claim.

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II. Analysis

¶7 Lopez appeals the district court’s denial of his request for a

proportionality review of his sentence and five of his claims for

ineffective assistance of counsel. We address each in turn.

A. Legal Standard and Standard of Review

¶8 A Crim. P. 35(c) motion may be denied without a hearing when

“the motion and the files and record of the case show to the

satisfaction of the court that the defendant is not entitled to relief.”

Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations

are bare and conclusory; (2) the allegations, even if true, do not

warrant relief; or (3) the record directly refutes the defendant’s

claims. People v. Duran, 2025 COA 34, ¶ 15. A defendant need not

set forth evidentiary support for the allegations in the motion but

must assert facts that, if true, would provide a basis for relief.

White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).

¶9 We review de novo the district court’s denial of a Crim. P. 35(c)

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

B. Proportionality Claim

¶ 10 We agree with Lopez that the district court erred by concluding

that his request for a proportionality review of his sentence was not

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a proper Crim. P. 35(c) claim. Although Lopez did not explicitly

assert that his sentence was grossly disproportionate, that was the

substance of his claim. See People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006) (holding that substance of postconviction motion

controls how it is designated). He cited the Eighth Amendment’s

prohibition on grossly disproportionate sentences, see Solem v.

Helm, 463 U.S. 277, 284 (1983), and asserted that he was “entitled

to a proportionality review of his sentence.” Construed liberally,

such a request “is a challenge to the constitutionality of a sentence

under the Eighth Amendment and is properly cognizable under

Crim. P. 35(c).” People v. Castillo, 2022 COA 20, ¶ 38. The district

court therefore should have conducted an abbreviated

proportionality review of Lopez’s sentence.1 See id. at ¶ 36.

¶ 11 But when there is no “need for a refined analysis inquiring

into the details of the specific offense[] . . . , an appellate court is as

well positioned as a [district] court to conduct a proportionality

1 Lopez’s postconviction motion was timely, he did not file a direct

appeal, and this was his first Crim. P. 35(c) motion. The People
thus do not argue that the proportionality claim was time barred or
successive. See People v. Moore-El, 160 P.3d 393, 395 (Colo. App.
2007) (denying request for proportionality review as time barred).

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review.” People v. Gaskins, 825 P.2d 30, 37-38 (Colo. 1992),

abrogated on other grounds by Wells-Yates, ¶ 55. That is the case

here. Thus, although the district court did not conduct a

proportionality review, we will conduct that review on appeal. See

Castillo, ¶ 38. And because we conclude that Lopez’s sentence does

not raise an inference of gross disproportionality, we affirm the

denial of this claim. See Duran, ¶ 26 (noting that we may affirm the

district court’s order on any ground supported by the record).

¶ 12 Proportionality review starts with an abbreviated review

comparing the gravity and seriousness of the offense with the

harshness of the penalty. Id. at ¶ 28. Ordinarily, assessing the

gravity or seriousness of the offense requires a fact-based inquiry

into “the harm caused or threatened to the victim or society” and

“the culpability of the offender.” Id. at ¶ 29 (quoting Wells-Yates,

¶ 12). But when an offense is per se grave or serious — meaning it

is “grave or serious in every potential factual scenario” — the court

may skip the first step of the abbreviated proportionality review and

proceed directly to the harshness of the penalty. Wells-Yates,

¶¶ 13, 63. In assessing the harshness of the penalty, we must take

into account both the length of the sentence and parole eligibility.

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Id. at ¶ 14. If this abbreviated proportionality review does not give

rise to an inference of gross disproportionality, no further analysis

is required, and the proportionality challenge fails. Id. at ¶¶ 8, 18.

¶ 13 Lopez pleaded guilty to first degree assault (causing serious

bodily injury by means of a deadly weapon). See § 18-3-202(1)(a).

At the time, that crime had been deemed a per se grave or serious

offense. See People v. Gee, 2015 COA 151, ¶ 60; People v. Oldright,

2017 COA 91, ¶ 14. But Wells-Yates “called into question all pre-

existing per se designations apart from those it identified as

satisfying the new definition of per [se] grave or serious.” People v.

Crawley, 2024 COA 49, ¶ 18. While no published opinion has

addressed whether first degree assault under section 18-3-202(1)(a)

remains a per se grave or serious offense after Wells-Yates, a

division of this court has held that extreme indifference first degree

assault under section 18-3-202(1)(c) does. Duran, ¶¶ 3, 33-36.

¶ 14 We conclude that subsection (1)(a) first degree assault is

likewise per se grave and serious. That offense, “by its nature, . . .

involves violence.” Gee, ¶ 60. Its elements include an intent to

cause serious bodily injury, the use of a deadly weapon, and serious

bodily injury to the victim. § 18-3-202(1)(a); Oldright, ¶ 14; see also

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Duran, ¶ 35 (noting that “serious bodily injury” is “grave harm”).

And the legislature has designated it as a crime of violence and an

extraordinary risk crime. See Duran, ¶ 35; § 18-3-202(2)(c); § 18-

1.3-406(2)(a)(II)(C); § 18-1.3-401(10)(b)(XII). Thus, “[t]he statutory

elements of [subsection (1)(a) first degree assault] ensure that,

regardless of the facts and circumstances involved, a defendant who

stands convicted of . . . such offense will have committed a crime

that is necessarily grave or serious.” Wells-Yates, ¶ 65.

¶ 15 Because Lopez’s offense is per se grave or serious, we proceed

directly to the harshness of the penalty. See id. at ¶ 13. Lopez’s

twenty-one-year sentence was in the middle of the statutory range.

See § 18-3-202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a),

(b)(XII); § 18-1.3-406. And he will be eligible for parole after serving

seventy-five percent of that sentence, see § 17-22.5-403(2.5)(a),

C.R.S. 2025, potentially shortening his actual period of confinement

for this offense to approximately sixteen years (or less, depending

on any earned time granted under section 17-22.5-405, C.R.S.

2025). See Wells-Yates, ¶ 14. Given the gravity of Lopez’s offense,

this sentence does not raise an inference of gross disproportionality.

See id. at ¶ 5 (“It is ‘exceedingly rare’ for a sentence to be deemed so

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extreme that it is grossly disproportionate to the crime.”) (citation

omitted). We therefore affirm the denial of this claim.2

C. Ineffective Assistance of Counsel

¶ 16 Lopez next argues that the district court erred by denying his

claims that his counsel provided ineffective assistance by (1) failing

to interview witnesses; (2) failing to exercise due diligence in

preparing for trial; (3) pressuring him to plead guilty; (4) failing to

visit him in custody before trial; and (5) failing to find and provide

mitigating information for plea negotiations. He also contends that

the cumulative effect of these alleged deficiencies prejudiced him.3

2 Because we conclude that Lopez’s sentence does not give rise to

an inference of gross disproportionality, we do not address the
People’s argument that Lopez’s proportionality challenge is barred
by section 18-1-409(1), C.R.S. 2025, because his sentence is within
the range to which he stipulated in the plea agreement.

3 Lopez does not reassert his claims that his counsel provided

ineffective assistance by failing to (1) challenge the pretrial
identification; (2) file motions; (3) advise Lopez throughout the case;
(4) comply with counsel’s duty of loyalty; (5) provide or review
discovery; (6) investigate the habitual criminal counts; and
(7) advise Lopez about his right to testify. Nor does he appeal the
denial of his claim that the Department of Corrections failed to
apply proper time credits. These claims are all abandoned. See
People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

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¶ 17 We conclude that the district court correctly denied Lopez’s

ineffective assistance of counsel claims without a hearing.

1. Legal Standard

¶ 18 To prevail on a claim of ineffective assistance of counsel, a

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

and (2) the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 697 (1984). Under the first prong of

this test, the defendant must show that counsel’s representation

“fell below an objective standard of reasonableness.” Id. at 688.

Under the second prong, the defendant must show that “there is a

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

the result of the proceeding would have been different.” Id. at 694.

¶ 19 When a defendant pleaded guilty, the defendant must show “a

reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 59 (1985); see also People v. Sifuentes,

2017 COA 48M, ¶ 20. To meet this burden, the defendant must

establish that rejection of the plea “would have been rational under

the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

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¶ 20 An ineffective assistance claim may be denied without a

hearing if the defendant’s allegations fail to satisfy either prong of

the Strickland test. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

2. Failure to Interview Witnesses

¶ 21 Lopez alleged that his counsel failed to interview any of the lay

witnesses in the case, including the victim. He alleged that the

witness accounts were conflicting on critical issues like “who had a

gun, who shot a gun, [and] the victim’s conduct leading up to the

shooting.” He also alleged that interviews of these witnesses were

critical to his possible defenses at trial and to his ability to make

knowing and intelligent decisions about whether to testify and

whether to go to trial. The district court denied the claim on the

grounds that (1) disagreement as to trial strategy cannot support an

ineffective assistance claim, and (2) the allegations were conclusory.

¶ 22 To the extent the district court denied the claim because it

concerned trial strategy, we disagree. Nothing in the record clearly

establishes that Lopez’s counsel made a “strategic” decision not to

interview any lay witnesses, including the victim, or that such a

decision would have been reasonable under the circumstances of

this case. See Ardolino, 69 P.3d at 77 (“If a criminal defendant has

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alleged acts or omissions by counsel that, if true, could undermine

confidence in the defendant’s conviction or sentence, and the

motion, files, and record in the case do not clearly establish that

those acts or omissions were reasonable strategic choices or

otherwise within the range of reasonably effective assistance, the

defendant must be given an opportunity to prove they were not.”).

¶ 23 Nevertheless, we agree with the district court that Lopez’s

claim was bare and conclusory. See People v. Venzor, 121 P.3d

260, 262 (Colo. App. 2005) (noting that a Crim. P. 35(c) motion may

be denied without a hearing “if the claims are bare and conclusory

in nature[] and lack supporting factual allegations”). Although

Lopez alleged that the witness accounts were “many and

conflicting,” he did not identify those witnesses, their conflicting

statements, or how they would have supported his defense at trial.

See People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (affirming

denial of a Crim. P. 35(c) motion without a hearing where the

defendant did not “explain[] what additional investigation counsel

should have done, what the results of those efforts would have

been, and how they would have affected the outcome of the case”).

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¶ 24 Nor did Lopez allege how interviewing these witnesses would

have caused him not to plead guilty and to insist on going to trial.

See Hill, 474 U.S. at 59. At most, he asserted that the interviews

would have allowed him to make a “knowing and intelligent”

decision about whether to plead guilty. But he does not allege that

his decision would have been different — or why. To the extent

Lopez makes such an assertion on appeal, it is too late. See People

v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996) (rejecting the

defendant’s “attempts to use his brief on . . . appeal to fortify a

number of issues inadequately raised or supported by his

[postconviction] motion”); see also People v. Goldman, 923 P.2d 374,

375 (Colo. App. 1996) (“Allegations not raised in a Crim. P. 35(c)

motion . . . are not properly before this court for review.”).

3. Failure to Exercise Due Diligence

¶ 25 Lopez next alleged that his counsel failed to “perform due

diligence” by not investigating Lopez’s case or preparing for trial,

which resulted in counsel “bombard[ing]” Lopez with a “last-minute

plea on the eve of trial.” Lopez further alleged that if counsel had

prepared the case for trial, this “last-minute advisement and plea

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would not have happened.” Again, the district court denied this

claim as implicating trial strategy and as conclusory and vague.

¶ 26 A criminal defendant is entitled to a pretrial investigation that

is sufficiently thorough “to develop potential defenses and uncover

facts relevant to guilt and punishment.” People v. Davis, 849 P.2d

857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994).

Defense counsel therefore “has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at 691.

¶ 27 Lopez’s allegations that his counsel “did not investigate” and

“failed to properly prepare his case for trial” are conclusory. He

does not specify what his counsel failed to investigate or what else

should have been done to prepare. See Zuniga, 80 P.3d at 973.

¶ 28 Moreover, the record refutes Lopez’s only claim of prejudice —

that the “last-minute advisement and plea would not have

happened.” As the district court noted, the prosecution re-extended

the original plea offer just before trial, and Lopez’s counsel promptly

presented it to him. Lopez did not allege that he would have

rejected the offer at that point if his counsel had been better

prepared, only that he would not have felt “bombarded.” Such an

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allegation is insufficient to show that “the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

4. Pressure to Accept Plea Offer

¶ 29 Lopez alleged that his counsel, having failed to prepare for

trial, contacted Lopez’s family to pressure him to plead guilty. He

asserted that, as a result, he could not make an informed decision

about whether to accept the plea offer or go to trial and therefore

“did not enter a truly knowing and voluntary plea of guilty.”

¶ 30 But pressure alone does not invalidate a guilty plea. See

People v. McCormick, 881 P.2d 423, 427 (Colo. App. 1994)

(explaining that the “desire to accept the certainty or probability of a

lesser penalty rather than face a wider range of possibilities” does

not render a guilty plea invalid). Of course, a plea is invalid when it

is obtained by “actual or threatened physical harm or by mental

coercion overbearing the will of the defendant.” Brady v. United

States, 397 U.S. 742, 750 (1970). But Lopez did not allege in his

motion any coercion by his counsel or his family rising to this level.

¶ 31 Indeed, at the providency hearing, Lopez unequivocally

affirmed that he was entering his guilty plea knowingly and

voluntarily. While such a representation does not necessarily

14
foreclose a challenge to the validity of a guilty plea, see People v.

Morones-Quinonez, 2015 COA 161, ¶ 17, such statements “carry a

strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 74

(1977). See also People v. Canody, 166 P.3d 218, 220 (Colo. App.

2007) (concluding that the defendant’s declarations “plainly

refute[d] [his] conclusory allegations” that the plea was coerced).

Lopez did not make any allegations of improper pressure that would

overcome his statements to the contrary at the providency hearing.

5. Failure to Visit Before Trial

¶ 32 Lopez alleged that after he was transferred from the jail to the

Department of Corrections (DOC), his counsel did not visit him

until the night before trial, when counsel advised Lopez to plead

guilty. Lopez alleged that “because of this, [he] felt ambushed on

the eve of trial and was unable to make informed decisions about

his case.”

¶ 33 Lopez was transferred to the DOC about a month and a half

before his trial was scheduled to begin. Lopez does not explain,

through specific factual allegations, how additional visits by counsel

during this period would have caused him not to plead guilty. See

Hill, 474 U.S. at 59. Nor does he allege that his counsel failed to

15
adequately communicate with him in the five months before his

transfer to the DOC. Again, such bare and conclusory allegations

concerning counsel’s supposed ineffective assistance “are

insufficient to demonstrate that a defendant may be entitled to

postconviction relief.” People v. Phipps, 2016 COA 190M, ¶ 36.

6. Mitigation for Plea Negotiations

¶ 34 Lopez claims that his counsel provided ineffective assistance

in plea negotiations because, “[b]y failing to investigate,” he was

unable to “provide mitigating information to the prosecution” that

could have resulted in “leniency and a reasonable plea bargain.”

¶ 35 A defendant’s right to effective assistance of counsel extends to

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

(2012). But again, the district court correctly rejected this claim

because the allegations — consisting of two sentences — were too

conclusory to warrant a hearing. See Venzor, 121 P.3d at 262.

¶ 36 Not only did Lopez fail to identify what investigation counsel

should have undertaken or what information might have been

uncovered, but he also did not allege any facts to support his

assertion that such information might have led to a more favorable

plea offer. He did not allege, for example, what evidence could have

16
been presented or why it would have prompted the prosecution to

show him more leniency. Indeed, the record suggests that the

prosecution likely would not have changed its offer. The offer was

the same as the one the prosecution had previously withdrawn, and

the prosecution explained at the providency and sentencing

hearings that it had intended to go to trial and seek habitual

convictions before re-extending the original offer. Lopez’s motion

contained no allegations to suggest that unspecified “mitigating

information” would have led the prosecution to improve that offer.

7. Cumulative Effect

¶ 37 Lopez finally contends that, even if none of his ineffective

assistance of counsel claims independently establish prejudice, the

cumulative effect of counsel’s errors does. See People v. Gandiaga,

70 P.3d 523, 529 (Colo. App. 2002) (“[P]rejudice may result from the

cumulative impact of multiple attorney errors . . . .”). We disagree.

¶ 38 Lopez’s allegations of deficient performance were largely, if not

entirely, conclusory. But even assuming some of the allegations

were sufficient, “the assumed or actual errors of counsel . . . were

neither so numerous nor so prejudicial” as to indicate that, but for

17
those errors, Lopez would not have pleaded guilty and would have

insisted on going to trial. Id.; see also Hill, 474 U.S. at 59.

III. Disposition

¶ 39 The order is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

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