Peo v. Linton

23CA1911 Peo v Linton 01-08-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1911
Adams County District Court No. 15CR3429
Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Byron Linton,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE KUHN
Dunn and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 8, 2026

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Mulligan Breit, LLC, Patrick J. Mulligan, Denver, Colorado; Daniel R Kent
Esquire, LLC, Daniel Kent, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Byron Linton, appeals the postconviction court’s

denial of his Crim. P. 35(c) motion without a hearing. We affirm.

I. Background

¶2 We draw the following background information from the

testimony and evidence presented at trial. One evening, Linton

pulled his semi-truck up behind the victim, who was standing next

to his parked car at a gas station air pump. The victim’s car was

blocking Linton’s access to a weigh scale located next to the air

pump. Once the victim finished using the pump, he waved to

Linton, gave him a thumbs up, and gestured to the pump. As the

victim went to get back into his car, Linton got out of his truck and

quickly walked up to the victim.

¶3 Linton stopped a foot or so away from the victim and angrily

gestured at him, telling the victim that Linton needed to weigh his

truck on the scale. They began to argue, and the victim stepped

back — away from his car and off a curb — putting space between

the two of them. Linton then stepped forward in between the victim

and his car. Linton reached for his right waistband, and as he did

so, the victim stepped back onto the curb. The victim, who believed

that Linton was reaching for a gun, said “Oh, you going to shoot

1
me, you’re going to shoot me.” Linton swiftly pulled a gun from his

hip holster and shot the victim in the lower right abdomen.

¶4 The victim collapsed to the ground as Linton holstered his gun

in one smooth motion while stepping back. Linton then stepped

forward and leaned over the victim. At trial, the victim testified that

Linton said, “You see what you made me do. You see what you

made me do.” The victim, trying to keep Linton calm, replied, “Sir,

just I understand like, I wasn’t going to do anything like.” And

Linton then said, “I didn’t mean to do it. I didn’t mean to do it.”

Linton started to walk away as the victim crawled back towards his

car but then returned to say something else. Linton then left the

victim on the ground and got back into his truck. Some bystanders

came over, contacted emergency services, and provided aid to the

victim. Linton spoke with some of the bystanders, but he did not

call emergency services or attempt to aid the victim himself. The

victim was taken to a hospital and survived.

¶5 The gas station’s video-only camera recorded the entire

incident, although the footage is somewhat blurry. Approximately

twenty seconds passed between Linton parking his truck and

shooting the victim. The victim was unarmed and, based on

2
testimony at trial, at no point attacked Linton or threatened him

verbally or physically.

¶6 At trial, Linton argued that he drew the gun in self-defense,

focusing on his fear of the victim, Linton’s reduced physical

capacity, and his hearing loss, which led him to misunderstand

what the victim was saying. He also argued that he did not intend

to shoot the victim. The jury convicted him of attempted second

degree murder and first degree assault. The court sentenced Linton

to twenty years in the custody of the Department of Corrections on

each count, running concurrently.

¶7 Linton filed an appeal, and a division of this court affirmed the

judgment of conviction. See People v. Linton, (Colo. App. No.

17CA0382, Nov. 12, 2020) (not published pursuant to C.A.R. 35(e)).

He then filed a motion to reconsider his sentence under Rule 35(b),

which the postconviction court denied. He later filed a Rule 35(c)

petition in which he alleged ineffective assistance of counsel and

that the court did not accommodate his hearing loss disability. He

also sought a review of his sentence for gross disproportionality.

The postconviction court denied his Rule 35(c) petition without

holding a hearing.

3
II. Analysis

¶8 Linton contends that the postconviction court erred by

denying the following claims without holding a hearing: (1) violation

of his right to effective assistance of counsel; (2) violation of his

constitutional rights by failing to adequately accommodate his

hearing loss; and (3) violation of his Eighth Amendment rights by

imposing a sentence disproportionate to his crime. We address

each contention in turn.

A. Linton’s Ineffective Assistance of
Counsel Claims Do Not Warrant a Hearing

¶9 Linton contends that he was denied effective assistance of

counsel in violation of the Sixth Amendment. He claims that his

lawyers were ineffective by failing to (1) hire an expert to enhance

the surveillance video footage of the incident; (2) present evidence

from a kinesiology expert; and (3) secure the presence of an

exculpatory witness. Lastly, he asserts that (4) the combined

prejudice from these failures amounts to cumulative error. We

disagree.

4
1. Standard of Review and Applicable Law

¶ 10 We review de novo a district court’s denial of a Rule 35(c)

motion without a hearing. See People v. Phipps, 2016 COA 190M,

¶ 20.

¶ 11 When the motion, the files, and the record clearly establish

that the defendant is not entitled to relief, a court may deny a Rule

35(c) motion without a hearing. Ardolino v. People, 69 P.3d 73, 77

(Colo. 2003). Summary denial of a motion for postconviction relief

without a hearing is also appropriate if the claims raise only an

issue of law, or if the allegations, even if true, do not provide a basis

for relief. People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).

Likewise, if the claims are bare and conclusory in nature and lack

supporting factual allegations, the court may deny the motion

without a hearing. Id.

¶ 12 Review under Rule 35(c) is limited. The proceedings “are

intended to prevent injustices after conviction and sentencing, not

to provide perpetual review.” People v. McDowell, 219 P.3d 332, 335

(Colo. App. 2009). One ground for review is “[t]hat the conviction

was obtained or sentence imposed in violation of the Constitution or

laws of the United States or the constitution or laws of this state.”

5
Crim. P. 35(c)(2)(I). In a Rule 35 proceeding, “the legality of the

judgment and the regularity of the proceedings leading up to the

judgment are presumed, and the burden is upon the applicant to

establish by a preponderance of the evidence the allegations of his

motion.” Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567

(Colo. 1991).

¶ 13 In all criminal prosecutions, a defendant is entitled to the

assistance of counsel for his defense. U.S. Const. amend. VI. As

the United States Supreme Court has long recognized, “the right to

counsel is the right to the effective assistance of counsel.”

Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation

omitted).

¶ 14 “In order 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.”

Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing

Strickland, 466 U.S. at 687). A court may resolve an ineffective

assistance of counsel claim “solely on the basis that the defendant

has failed in either regard.” People v. Romero, 2015 COA 7, ¶ 25

(citing People v. Garcia, 815 P.2d 937, 941 (Colo. 1991)).

6
2. The Enhanced Video Footage

¶ 15 Linton argues that his counsel was ineffective and prejudiced

him by failing to retain an expert to enhance the surveillance

footage of the shooting to corroborate his assertion that the

shooting was accidental.

¶ 16 To support this postconviction argument, Linton retained an

expert who enhanced the surveillance video and provided that

enhanced video to the postconviction court. Linton asserts that the

enhanced video shows that his index finger was on the barrel of his

gun and that his middle finger was in the trigger guard, consistent

with someone who did not intend to pull the trigger. Further, he

argues that such facts — combined with the shape of the gun, his

hand positioning on the weapon, and the holster that he used — led

him to accidentally discharge the firearm with his middle finger. He

contends that by failing to properly investigate and present this

aspect of his defense, his trial attorney was ineffective. And he

argues that such ineffectiveness, coupled with the resulting

prejudice, violated his Sixth Amendment rights. Additionally,

Linton argues that the enhanced video, unlike the unenhanced

version admitted at trial, shows that he fired before activating the

7
targeting laser — contrary to the prosecution’s argument that he

laser-sighted the gun before he fired.

¶ 17 In ruling on Linton’s Rule 35(c) petition, the postconviction

court analyzed the enhanced video footage and concluded that it

added nothing new. We agree with Linton that, as far as his

asserted finger placement was concerned, the court was incorrect in

making this determination without holding a hearing. At the

prehearing stage of a Rule 35(c) petition, all asserted facts must be

taken as true. See People v. Chavez-Torres, 2016 COA 169M, ¶ 31

(“The denial of a claim of ineffective assistance of counsel without a

hearing is justified if, but only if, the existing record establishes

that the defendant’s allegations, even if proven true, would fail to

establish either constitutionally deficient performance or

prejudice.”), aff’d, 2019 CO 59. Linton asserted that his finger was

misplaced on the barrel of the gun and claimed that the enhanced

video supported that factual assertion. Based on our review of the

enhanced video, and the stills taken from it, the video (though

blurry) could suggest to a jury that Linton’s index finger was along

the barrel of the gun, which — according to the assertions in the

motion — left his middle finger in the trigger guard. Thus, the video

8
potentially added something new in support of Linton’s theory that

he accidentally fired the gun, believing that his middle, ring, and

pinky fingers were on the gun grip.

¶ 18 However, we agree with the postconviction court that, as far as

the sequence of the shooting and triggering the laser sight was

concerned, there is no meaningful difference between the

unenhanced and enhanced videos. In our review of the two videos,

it was difficult to see the exact sequence of events and whether the

plume of smoke from the gun appeared before the laser activated.

The enhanced video did not add anything new on this point.

¶ 19 Regardless of these two points, we also agree with the

postconviction court that Linton’s assertions regarding his finger

placement and the enhanced video fail to demonstrate prejudice.

Under the prejudice prong, Linton must show “a reasonable

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

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Even if counsel erred by

failing to engage an expert to enhance the video, that omission does

not establish prejudice.

9
¶ 20 First, the enhanced video is extremely blurry, and, as the

postconviction court noted, “even zoomed in and slowed down, it is

very difficult to make out [Linton’s] fingers.” We agree that, despite

arguably providing some evidence for Linton’s position, the

enhanced video is of limited evidentiary value because it is so

blurry. This limited value does not undermine the evidence

presented at trial. See People v. Dillard, 680 P.2d 243, 245 (Colo.

App. 1984) (determining that evidence of questionable benefit does

not demonstrate prejudice from counsel’s failure to call an expert).

¶ 21 Second, at trial, Linton testified, “I didn’t fire it intentionally.

It was totally an accident. My finger slipped inside the trigger guard

as I was pulling the gun up, and set the gun off.” But the jury was

not merely weighing Linton’s finger placement. Both versions of the

surveillance video showed Linton exiting his truck and within

approximately twenty seconds — and without provocation or in

response to any aggressive action — pointing his gun directly at the

victim. Linton then shot the victim without hesitation or visible

surprise, reholstered the gun, and watched the victim crawl on the

ground. According to witness testimony, he leaned over the victim

10
and said, “You see what you made me do. You see what you made

me do.”

¶ 22 Even accepting as true that the enhanced video provides

corroborating evidence about which finger pulled the trigger, that

evidence doesn’t constitute a reasonable probability sufficient to

undermine confidence in the outcome. The jury had ample

evidence from which it could evaluate Linton’s mental state. The

unenhanced video evidence showed the sequence of events and

Linton’s reaction to those events. And the jury was able to evaluate

Linton’s version of events. Linton does not explain, and we don’t

see, how corroboration of his finger placement would have resulted

in a different outcome in the face of other evidence adduced about

his mental state at trial.

¶ 23 Thus, Linton’s enhanced video claim fails to allege prejudice

because he cannot demonstrate “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Ardolino, 69 P.3d at 76. And because a

court may resolve an ineffective assistance of counsel claim solely

on the basis that the defendant has failed to establish either

11
deficient performance or prejudice, see Romero, ¶ 25, we discern no

error in the postconviction court’s ruling.

3. The Kinesiology Expert

¶ 24 Linton contends that his counsel was ineffective and

prejudiced him by failing to retain an expert in kinesiology to testify

in support of his argument that his grip on the gun resulted in an

unintentional shooting.

¶ 25 In support of this argument, Linton’s postconviction counsel

consulted with a kinesiologist, Dr. Roger Enoka. In his Rule 35(c)

petition, Linton claimed that Dr. Enoka would have testified at trial

that Linton’s fingers were misaligned on the gun and that his

middle, ring, and pinky fingers are all controlled by the same

muscle. Linton argues that Dr. Enoka’s testimony would have

demonstrated that Linton involuntarily discharged the weapon

when he squeezed the handle of the gun. Linton argues that his

trial counsel was ineffective because Dr. Enoka would have been a

better expert witness for his accidental discharge defense than

Chief Dan Montgomery, the former law enforcement officer whom

his trial counsel called as an expert at trial. Alternatively, Linton

12
argues that Dr. Enoka’s potential testimony was a necessary but

omitted addition to Chief Montgomery’s testimony.

¶ 26 When addressing trial counsel’s performance, we evaluate that

performance from counsel’s perspective at the time the

representation occurred while “ignoring ‘the distorting effects of

hindsight.’” People v. Lopez, 2015 COA 45, ¶ 59 (quoting Davis v.

People, 871 P.2d 769, 772 (Colo. 1994)). Additionally, we must

“indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

¶ 27 Viewed in this light, Linton’s argument that another expert

would have been better than — or needed in addition to — the

expert his counsel called at trial relies on the distortion of

hindsight. See Lopez, ¶ 59. At trial, Linton’s counsel called Chief

Montgomery to testify as an expert “in the area of accidental

discharge concerning a citizen use of the gun.” Chief Montgomery

testified about how negligent or accidental discharges can occur,

the four fundamental rules of firearms control, and examples of

negligent discharges.

13
¶ 28 Linton contends that Dr. Enoka’s testimony would have

provided a biomechanical explanation for part of Linton’s account of

the shooting. But given that trial counsel called another well-

qualified witness to testify regarding the same accidental discharge

theory, this allegation does not overcome the strong presumption of

reasonableness that we afford to trial counsel’s decision-making.

See id. Based on his argument, Linton only reached the conclusion

that he needed additional or different expert testimony to support

this defense after he was dissatisfied with the result of Chief

Montgomery’s testimony.

¶ 29 Contrary to Linton’s argument, the motion and the record

demonstrate that his trial counsel investigated his case and

retained an expert specifically qualified on the defense he argued at

trial. Therefore, the record directly refutes Linton’s claim that his

trial counsel failed to properly investigate. See Phipps, ¶ 19. While

it may be true that Dr. Enoka could have provided some support for

Linton’s case at trial, we cannot say on this record that counsel’s

performance in obtaining a law enforcement expert, but not a

kinesiology expert, constituted deficient performance.

14
¶ 30 Thus, we conclude that the postconviction court did not err by

denying this claim without a hearing. See Romero, ¶ 25.

4. The Missing Witness

¶ 31 Linton contends that his counsel was constitutionally

ineffective by failing to secure a witness, Joseph Deede, to testify at

trial. Linton asserts that Deede would have testified that Linton

told him the gun accidentally went off and that Linton appeared

quiet and remorseful.

¶ 32 The postconviction court found that Linton’s trial counsel

failed to secure Deede’s presence at trial because counsel had failed

to show due diligence. The court refused to allow Deede to testify

telephonically for the same reason. But the postconviction court

ultimately determined that Linton failed to allege prejudice

stemming from that defective performance. We agree with the

postconviction court that Linton failed to allege that he was

prejudiced by trial counsel’s failure to secure Deede’s presence at

trial.

¶ 33 At trial, Linton’s attorney elicited the following testimony

regarding Linton’s accidental discharge defense:

15
• On the first day of trial, the victim testified that Linton, after

shooting him, said, “You see what you made me do. You

see what you made me do.” The victim testified that Linton

then said, “I didn’t mean to do it. I didn’t mean to do it.”

• The victim repeated those statements on the second day of

trial and affirmed that Linton seemed shocked that he had

shot him.

• Linton’s trial counsel also pointed out that a witness told a

responding police officer that Linton seemed dazed after the

shooting.

• Another witness said that, following the shooting, Linton

might have been in a state of shock and that he heard other

people saying that Linton had called it an accident.

• One of the responding paramedics testified that the victim

told him that Linton said “I’m sorry” after the shooting.

• Detective James Zamora testified that Linton told him he

was shocked by the incident.

• Linton’s trial counsel also pointed out that Linton told

Detective Zamora that he “didn’t know the [gun’s] handle

was not in [his] palm.”

16
• Detective Zamora affirmed that Linton said he was “shook

up” after the incident and “[he] just couldn’t believe it

happened and [he] was just stunned.”

• Linton’s trial counsel also emphasized testimony and

evidence supporting the accidental discharge defense

during opening statements and closing arguments.

¶ 34 Linton argues that Deede’s testimony was critical for the

defense because it “would have supported and corroborated . . .

Linton’s claim that the discharge of the gun was accidental” and

“rebutted the prosecution argument that [Linton] was callous and

indifferent after the incident.” We are not persuaded.

¶ 35 Given the extensive testimony from multiple witnesses

summarized above, Deede’s proposed testimony would have been

cumulative of other evidence the jury had already heard.1 Though

Deede’s testimony may have been admissible, see People v.

Melendez, 102 P.3d 315, 320 (Colo. 2004) (“[C]umulative evidence

1 During the colloquy in which Linton requested a continuance in

lieu of Deede’s written testimony or telephonic testimony, the trial
court found that Deede’s proffered testimony would be cumulative
of that of other witnesses or improper speculation on Linton’s
thought process.

17
that may corroborate the defendant’s own statement should

ordinarily be admitted.”), that doesn’t make it critical. To the

contrary, the jury heard testimony that Linton said that the

shooting was an accident and that his demeanor was “dazed,” “in

shock,” shook up,” and “stunned.” As a result, we don’t see how

Deede’s testimony would have changed the outcome of the trial.

See People v. Washington, 2014 COA 41, ¶ 35 (concluding defense

counsel wasn’t constitutionally ineffective for failing to present

evidence that would have been cumulative of other witness

testimony on the same topic).

¶ 36 Thus, Linton’s assertions, taken as true, don’t “show that

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

unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. We discern no error in the

postconviction court’s denial of this claim without a hearing. See

Chavez-Torres, ¶ 31.

5. Cumulative Prejudice

¶ 37 Linton contends that trial counsel’s errors and omissions

constituted cumulative error, entitling him to relief.

18
¶ 38 The People assert that “the cumulative error doctrine has no

applicability to ineffective assistance claims.” But Colorado courts

have recognized that an individual may bring a cumulative

prejudice argument2 regarding ineffective assistance of counsel.

See, e.g., People v. Gandiaga, 70 P.3d 523, 529 (Colo. App. 2002)

(“[P]rejudice may result from the cumulative impact of multiple

attorney errors . . . .”); see also Dunlap, 173 P.3d at 1081 (declining

to reach a cumulative prejudice argument because trial counsel’s

actions did not fall below an objective standard of reasonableness);

People v. Garner, 2015 COA 174, ¶ 75 (denying ineffective

assistance of counsel cumulative error claim in postconviction

appeal).

¶ 39 Regardless, Linton’s cumulative prejudice claim cannot

prevail. Even if we assume error on the part of his attorneys, those

errors were neither so numerous nor so prejudicial as to have

deprived Linton of a fair trial. See Gandiaga, 70 P.3d at 529. We

2 In the context of a Crim. P. 35(c) petition for ineffective assistance

of counsel, a cumulative error argument is more properly
characterized as “cumulative prejudice.” See Dunlap v. People, 173
P.3d 1054, 1081 (Colo. 2007).

19
therefore conclude that the postconviction court did not err by

denying this claim without a hearing.

B. Failure to Provide Accommodations
for Hearing Loss

¶ 40 Linton next contends that the postconviction court was

required to grant a hearing on his assertion that the trial court

violated his constitutional rights to due process, equal protection,

confrontation, and to present a defense by failing to provide

adequate accommodations for his hearing loss disability. See U.S.

Const. amends. V, VI, XIV; Colo. Const. art. II, §§ 16, 18, 25.

Reviewing his claim de novo, see Phipps, ¶ 20, we disagree that the

postconviction court erred.

¶ 41 The postconviction court denied Linton’s constitutional claim

as successive because he could have raised it in his direct appeal.

Linton argues that this ruling was improper because “there was no

way to litigate this issue on direct appeal, as trial counsel had failed

to make an adequate record on the issue.”

¶ 42 This argument misunderstands the law. Plain error is

designed to correct an “error that is so obvious that a trial court

should be able to avoid it without benefit of objection.” People v.

20
Sparks, 2018 COA 1, ¶ 36. Additionally, “the error must so

undermine the trial’s fundamental fairness as to cast serious doubt

on the conviction’s reliability.” Id.

¶ 43 Rule 35(c)(3)(VII) “bars postconviction claims that ‘could have

been presented in an appeal previously brought or postconviction

proceeding previously brought.’” People v. Taylor, 2018 COA 175,

¶ 17 (quoting Crim. P. 35(c)(3)(VII)). And its “language is mandatory

rather than permissive.” Id. Linton does not argue that his claim

falls within any exceptions to this bar. Linton could have raised

this claim on direct appeal, even if it was unpreserved and even if

arguing the claim would have been hampered by a poorly developed

record. See Hagos v. People, 2012 CO 63, ¶ 14 (“Finally, we review

all other errors, constitutional and nonconstitutional, that were not

preserved by objection for plain error.”). Thus, the postconviction

court did not err by denying as successive his claim that the trial

court did not adequately protect his constitutional rights during the

trial. See Crim. P. 35(c)(3)(VII); Taylor, ¶ 17.

¶ 44 Linton also argues that his counsel was ineffective by failing to

ensure that his hearing disability was accommodated during the

21
trial. But as the postconviction court noted, this claim is refuted by

the record.

¶ 45 Linton’s trial attorney alerted the court to Linton’s hearing loss

at a pretrial hearing and again raised the issue at the beginning of

jury selection. The trial court repeatedly recognized Linton’s

hearing loss and took steps to ensure that he could hear and that

defense counsel felt comfortable raising the issue to the court.

[Defense Counsel]: And, Your Honor, . . . I
presume the [c]ourt did listen to the interview
of Mr. Linton --

THE COURT: I haven’t.

[Defense Counsel]: But I want to remind the
[c]ourt he is hard of hearing. And we’ve had
through the course of proceedings we’ve just
tried to remind people to speak into the
microphone.

THE COURT: Okay.

[Defense Counsel]: He’s told me when the
[c]ourt’s speaking, when the [c]ourt speaks
into the microphone, he doesn’t have any
trouble hearing at all. I tend to be loud. He
hasn’t had any trouble hearing me. The
government, when they were standing at the
table, he had some trouble hearing them.

THE COURT: Okay. What I’m going to suggest
then to the [district] attorneys is you get that
microphone in front of you . . . except for

22
objections. And just speak loud, we’ll go from
here.

[Prosecutor]: Yes, Your Honor.

THE COURT: And the other thing, I was going
to say, Mr. Linton, it’s really important that
you hear everything. So if there is something
you don’t hear, will you nudge your attorney,
and then we’ll repeat it to make sure you do
hear it?

[Prosecutor]: And, Your Honor, in regards to
jury selection, then, would the Court want me
to stay near the podium --

THE COURT: Yes.

[Prosecutor]: -- with the microphone?

THE COURT: Yes. And I think the court
reporter probably would like that as well. So --

[Prosecutor]: Of course.

THE COURT: -- I’ll caution everybody, I’m the
biggest offender, please talk slowly, and don’t
talk over each other. That way we’ll get a good
record.

¶ 46 Additionally, when informed that Linton could not hear things,

the trial court immediately took appropriate steps to accommodate

his hearing loss. For example, Linton’s trial counsel took the

following steps during trial:

23
• Counsel informed the court that Linton could not hear the

prosecution’s opening statement, in response to which the

prosecutor said he would speak louder.

• Counsel interrupted the trial court at least twice to ask the

court to speak into the microphone.

• Counsel ensured that the defense table had access to real

time stenographic transcription of the trial that allowed

Linton to read a real time transcript of the proceedings.

• When the defense table lost access to the real-time

transcription, counsel promptly informed the court of the

problem. The court immediately supplied Linton with

headphones, which Linton confirmed helped.

• Counsel emphasized Linton’s hearing challenges during

sentencing.

¶ 47 Therefore, the record refutes Linton’s argument that his

counsel was ineffective for failing to ensure that the court knew of

and accommodated his hearing disability so that he was able to

24
hear and participate in the proceedings.3 And a Rule 35(c) motion

may be denied without a hearing “if the record directly refutes the

defendant’s claims.” Phipps, ¶ 19. Thus, we discern no error in the

postconviction court’s denial of Linton’s disability accommodation

claims without a hearing.

C. Linton’s Proportionality Claim

¶ 48 Lastly, Linton contends that his sentence is grossly

disproportionate to his crime. See U.S. Const. amend. VII; Colo.

Const. art. II, § 20. The postconviction court determined that

Linton’s proportionality argument was barred as successive.

Reviewing the court’s ruling de novo, see Phipps, ¶ 20, we agree

with the court’s determination.

¶ 49 Linton argues that “established Colorado law . . . holds [that]

because proportionality is a function of the Eighth

Amendment . . . [,] it is properly cognizable under [Rule] 35(c).”

While it’s true that a proportionality challenge is cognizable under

3 Linton also argues, without citation to the record, that the court

provided him with a hearing device that did not work. But the
record refutes this claim and indicates that Linton confirmed that
he could hear the witnesses when they were speaking into the
microphone.

25
Rule 35(c), People v. Crawley, 2024 COA 49, ¶¶ 7-9, that doesn’t

resolve the successiveness problem in this case. The procedural

bars, including successiveness, apply to constitutional claims

raised under the rule. See People v. Isom, 2015 COA 89, ¶ 32

(holding that a postconviction indeterminate sentence challenge was

time barred and successive), aff’d, 2017 CO 110. And Rule 35(c)’s

language is mandatory. It requires a postconviction court to deny a

claim that could have been brought in a previous appeal or

postconviction proceeding. Taylor, ¶ 17.

¶ 50 So the appropriate question in this case is not whether a

proportionality challenge can ever be brought in a postconviction

proceeding, but rather, whether Linton could have brought his

proportionality challenge in his direct appeal. A defendant is

permitted to bring a proportionality claim on direct appeal. See,

e.g., People v. Loris, 2018 COA 101, ¶ 9. Linton doesn’t explain why

that general rule doesn’t apply to him, and he doesn’t claim that

any of the exceptions to the successiveness bar apply to his case.

¶ 51 Instead, Linton relies on Crawley, ¶¶ 7-9, People v. Moore-El,

160 P.3d 393, 395-96 (Colo. App. 2007), and People v. Castillo,

2022 COA 20, ¶ 38, in support of his argument that he can bring

26
his proportionality claim for the first time in his postconviction

challenge. But those cases don’t help him. In Crawley, the

defendant pleaded guilty and his proportionality challenge under

Rule 35(c) was his first challenge to his sentence. Crawley, ¶¶ 3-4.

So the successiveness bar did not apply in that case. In Castillo,

the division did conduct a proportionality review for the first time

during a postconviction appeal. Castillo, ¶¶ 36-44. But the

defendant’s claim failed on other grounds, id. at ¶ 44, and there’s

no indication that the People challenged his claim as successive in

that case. Finally, in Moore-El, the division concluded that the

proportionality review was time barred and could not be considered

under the rule. 160 P.3d at 395-96. If anything, this conclusion

lends support to the People’s position that the procedural bars

apply to postconviction proportionality review claims.

¶ 52 Given all of this, we conclude that Linton could have raised his

proportionality challenge in his direct appeal, and the

postconviction court did not err by concluding that his challenge is

barred as successive.

III. Disposition

¶ 53 The postconviction court’s order is affirmed.

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JUDGE DUNN and JUDGE LIPINSKY concur.

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