Peo v. Najera

19CA1043 Peo v Najera 11-24-2021 COLORADO COURT OF APPEALS Court of Appeals No. 19CA1043 Jefferson County District Court No. 15CR2261 Honorable Tamara S. Russell, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Onesia Ann Najera, Defendant-Appellant. ORDER AFFIRMED Division VII Opinion by JUDGE GROVE Navarro and Pawar, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 24, 2021 Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Onesia Ann Najera, Pro Se 1 ¶ 1 Defendant, Onesia Ann Najera, appeals the postconviction court’s order denying her Crim. P. 35(c) motion. We affirm. I. Background ¶ 2 In 2015, Najera was charged with two counts of child abuse resulting in death after her disabled grandchild, who was in her care, drowned in a bathtub. As part of a plea agreement wi th the prosecution, she pleaded guilty to an added count of child abuse resulting in death pursuant to section 18-6-401(1)(a), (7)(a)(II), C.R.S. 2021. The original counts were dismissed. ¶ 3 The presumptive sentencing range for Najera’s conviction was four to sixteen years, but as part of the plea agreement she stipulated to an aggravated range sentence with a twenty-year sentencing cap. The trial court sentenced her to a term of t wenty years in the custody of the Department of Corrections. ¶ 4 Najera did not directly appeal her conviction, but she subsequently filed the timely Crim. P. 35(c) motion that is t he subject of this appeal. The postconviction court denied the moti on in a written order without appointing counsel, serving the motion on the prosecuting attorney, or holding a hearing. See Crim. P. 35(c)(3). 2 II. Analysis ¶ 5 Najera ’s opening brief identifies seven issues for our review. As we discuss further below, we decline to consider one of t hem (Issue 6) because Najera did not raise it in her postconvict ion motion. We group Najera’s remaining arguments into four main categories: (1) arguments related to whether the trial judge sh ould have recused herself (Issue 1); (2) arguments related to her s entence (Issues 2-4); (3) arguments related to the voluntariness of her plea (Issue 5); and (4) arguments related to defense counsel’s investigation (Issue 7). To the extent that Najera raises s ub-issues, we address them as part of the main category where the argu ment appears in the opening brief. A. Standard of Review and Applicable Law ¶ 6 We review de novo a postconviction court’s summar y denial of a postconviction motion. People v. Trujillo , 169 P.3d 235 , 23 7 (Colo. App. 2007). ¶ 7 “In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance w as deficient and 2) the deficient perfo rmance prejudiced the defense.” Dunlap v. People , 173 P.3d 1054 , 1062 (Colo. 200 7) (citing 3 Strickland v. Washington , 466 U.S. 668, 687 (1984)). “An ineffective assistance claim will not succeed if a defendant fails to prove eit her prong of the test.” People v. Villarreal , 231 P.3d 29, 33 (C olo. App. 2009), aff’d on other grounds , 2012 CO 64 . ¶ 8 A defendant is entitled to an evidentiary hearing on her moti on when she alleges facts that, if true, would entitle her to relief un der Rule 35(c). White v. Denver Dist. Ct. , 766 P.2d 632, 634-35 (Colo. 1988). But a district court may deny a Rule 35(c) motion wit hout a hearing w hen the defendant’s allegations are bare and concluso ry; when the allegations do not warrant postconviction relief, even if true; when the claims raise only an issue of law; or wh en the record directly refutes the defendant’s allegations. People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005). B. Unpreserved Claim ¶ 9 For the first time on appeal, Najera asserts that the prosecuto r committed misconduct by “knowingly suppl[ying] false informati on onto an official document and that this document was signed an[ d] a ccepted by the Court making it part of Ms Najera’s pe rman[en]t court record and that the Prosecution did this for the sole purpose of prejudicing the Defendant.” Najera concedes that she did n ot 4 raise this issue in her postconviction motion, but states that she failed to do so because she “had not yet reviewed the Cou rt record of her case.” ¶ 10 We will not consider for the first time on appeal issues that were not raised in the underlying Crim. P. 35(c) motion. People v. Huggins , 2019 COA 116, ¶ 17 . Because Najera concedes she did not raise this claim in her postconviction motion, we do n ot consider it further. C. Recusal ¶ 11 Najera contends that she was entitled to postconviction relief because her attorney provided ineffective assistance by failing t o move to disqualify the trial judge and, notwithstanding defense counsel’s failure to file such a motion, the trial judge did not recuse herself sua sponte. She alleged in her postconviction motion t hat the trial judge should have recused herself because the judge had presided over two previous criminal cases involving the victim and his mother (Najera’s daughter), and that defense counsel sho uld have filed a motion to disqualify the judge after Najera informe d counsel of this history. 5 ¶ 12 The postconviction court, with the same judge sitting who had presided over the plea proceedings, ruled that it was unnecessary to hold a hearing on this claim for two reasons. First, the cases in question occurred seven and ten years before charges were filed in this case, and the judge had no memory of them, and secon d, what a judge learns in her judicial capacity is generally not sufficient grounds for disqualification. See, e.g. , Smith v. Dist. Ct. , 629 P.2d 1055, 1057 (Colo. 1981). The court thus concluded that Najera could not have been prejudiced by defense counsel’s failure to m ove for disqualification. ¶ 13 We agree with this ruling. Without more, the fact that the trial judge had presided over two cases involving criminal charges against the child’s mother several years e arlier would not have established grounds for disqualification. Thus, as the postconviction court concluded, a motion to disqualify the trial judge on the grounds that Najera recites in her postconviction motion and on appeal would have been bound to fail. And because any such efforts would have been fruitless, Najera was not prejudiced by defense counsel’s decision not to pursue disqualification. 6 D. Sentence ¶ 14 Najera raises three arguments related to her sentence. We address each in turn below. 1. Aggravatio n ¶ 15 First, Najera asserts that the trial court “abuse[d] its discreti on when it applied unknown ‘caselaw’ against the defendant for the purpose of aggravating the defendant without having to put forth any facts or evidence on the record that would support a sent ence in the aggravated range.” This appears to be an “illegal manne r” claim. See People v. Bowerman , 258 P.3d 314, 316 (Col o. App. 2010) (holding that a sentence is imposed in an illegal manne r if the court ignores essential procedural rights or statutory consi derations when imposing the sentence). If so, it is time barred because it was not filed within 126 days of sentencing. See Crim. P. 35(a), (b)(1). ¶ 16 Even if it were not time barred, however, Najera’s argument would fail on the merits. The record demonstrates that she stipulated to the presence of aggravating circumstances as part of her written plea agreement and again on the record at the providency hearing. Notwithstanding the fact that the pr osecutor did not have a precise citation to the relevant case law until the end 7 of the hearing, Najera’s stipulation was sufficient to support her aggravated range sentence. See People v. Shepard , 98 P.3d 90 5, 906 (Colo. App. 2004). 2. Blakely Requirements ¶ 17 Next, Najera contends that her sentence is unconstitutional because the court did not put on the record the Blakely -compliant or Blakely- exempt facts that it used “for the purpose of imposing a sentence in the aggravated range.” See Blakely v. Washington , 542 U.S. 296 (2004). ¶ 18 If the trial court imposes a sentence in the aggravated range, it is generally required to state on the record the facts that support the aggravated range sentence. § 18-1.3-401(7), C.R.S. 2021. Under Blakely , aggravated sentencing under 18-1.3-401(6) may only be based on at least one of four kinds of facts, including facts admitted by the defendant. Lopez v. People , 113 P.3d 713 , 71 9 (Colo. 2005) (discussing Blakely requirements). Here, as noted, Najera stipulated to the existence of aggravating facts . And “where . . . the defendant stipulates to a sentence in the aggravated range as part of a plea agreement, the defendant is also stipulating that sufficient facts exist to warrant an aggravated sentence, and the 8 trial court need not make additional findings on the record.” Shepard , 98 P.3d at 906 . 3. Advisement ¶ 19 Najera’s last sentence - related contention is that “she was not given [a] proper advisal by the Trial Court of her right to have a jury determine the aggravating fact(s) of her case, and Ms. Najera did not verb ally waive that right before the court.” This claim is refuted by the record. In her “Petition to Enter Plea of Guilty,” Naje ra confirmed that she was stipulating to the existence of extra ordinary aggravating circumstances and “agree[ing] to waive [her] right to have a jury make a determination of extraordinary aggravati on.” Likewise, at the providency hearing, the trial court advised Najera that if she “decide[d] to take the plea agreement . . . then you’re waiving your right to trial.” And, discussing the stipulation, the court informed Najera that it meant that she was “agreeing to the existence of extraordinary aggravating circumstances, and . . . asking that the Court make a finding of extraordinary aggravating circumstances, and . . . waiving [her] right to have a jury make that determination.” Because Najera confirmed that she underst ood the 9 rights that she was giving up in exchange for her plea agreem ent, she is not entitled to postconviction relief on this claim. E. Voluntary Plea ¶ 20 Najera contends that her attorneys were ineffective because they “allow[ed] the Prosecution to threaten the defendant wit h other unrelated charges if the defendant didn’t agree to stipulate to aggravation.” As we understand the argument, Najera alleges t hat after the prosecution backed away from an early, more lenient off er, she felt pressured into taking a less favorable plea bargain by the possibility of a more severe sentence at trial and a threat that the prosecutor would charge Najera’s daughter with offenses in an unrelated case. ¶ 21 Even if these allegations are true, they do not suggest deficient performance on the part of defense counsel. All defense co unsel allegedly did was to communicate the conditions of the prosecution’s plea offer — conditions that only the prosecution could dictate — to Najera. By candidly relaying that inf ormation and counseling Najera as to pros and cons of accepting the plea offer, Najera’s attorneys performed exactly as they shoul d have. 10 ¶ 22 Moreover, Najera’s claim of coercion is refuted b y the record. At the providency hearing, she denied that “anyone [had] trie d to force [her] or coerce [her] to say guilty today,” stated that it was her “free and voluntary decision to plead guilty,” and said that she had chosen to do so because she wanted to “accept[] responsibilit y” for her actions, and not just avoid trial. Accordingly, because the voluntariness of her plea is established by the record, t he postconviction court correctly declined to hold a hearing on this claim. 1 F. Investigation ¶ 23 Last, Najera contends that her attorneys were ineffective for failing to conduct an adequate investigation of the facts and circumstances surrounding the charged offense. ¶ 24 Criminal defendants are entitled to sufficiently thorough pretrial investigations “to deve lop potential defenses and uncove r 1 To the extent that Najera argues on appeal that the t rial court “altered Ms. Najera’s plea agreement after Ms. Najera signed it” and that the court improperly participated in the plea bargaining process, we decline to address these issues because Naje ra did not raise them in her postconviction motion. See People v. Huggins , 2019 COA 116, ¶ 17 . 11 facts relevant to guilt and punishment.” People v. Davis , 849 P.2d 857, 861 (Colo. App. 1992), aff’d , 871 P.2d 769 (Colo. 199 4); see Davis , 871 P.2d at 773 (“[C]ounsel has a duty to make r easonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”). When reviewing a claim of ineffective assistance, the court must evaluate counsel’s alleged failure to investigate for reasonableness, “applying a heavy meas ure of deference to counsel’s judgments.” Strickland , 466 U.S. at 691 . However, mere disagreement as to trial strategy, including what t o investigate, will not support a claim of ineffective assistance. Da vis , 849 P.2d at 861 ; People v. Apodaca , 998 P.2d 25, 29 (Colo. A pp . 1999). ¶ 25 “A defendant is entitled to pretrial investigation sufficient to reveal potential defenses and facts relevant to guilt or penalt y.” People v. Pendleton , 2015 COA 154, ¶ 33 . But mere speculati on about what information a different investigative approach may ha ve yielded is insufficient to establish ineffective assistance. Id. at ¶ 34. ¶ 26 We are not persuaded that Najera should have received a hearing based on her claim that defense counsel failed to cond uct an adequate pretrial investigation “relative to Count One,” as sh e 12 argues in her opening brief — not least because Count One was dismissed as part of her plea agreement. But even if we rea d Najera’s cont entions more broadly, she is still not entitled to a hearing for at least two reasons. ¶ 27 First, as the postconviction court pointed out, although t he claim of inadequate investigation in Najera’s postconviction m otion focused largely on whether she had been intoxicated, the “factual basis Defendant admitted to for her plea did not in any way reference her sobriety or intoxication at the time of the incident.” Thus, the postconviction court concluded, the investigation along the lines of what Najera claims should have been done would not have resulted in exculpatory evidence for the charge of wh ich she was eventually convicted. ¶ 28 Second, aside from making general representations in her opening brief that “[c]ounsel did not raise evidence that was material, t rustworthy and available,” Najera does not specify what would have been revealed by additional investigation on her attorneys’ part. She did not identify any exculpatory evidence o r point to evidence that would have been discovered had her attorneys conducted any more investigation. And while she di d 13 name some potential witnesses counsel could have interviewed, she did not specify what they would have said or how that would have impacted her decision to plead guilty. Therefore, she was not entitled to a hearing on this basis. See People v. Stova ll , 2012 COA 7M, ¶ 29 ( Speculative assertions are “insufficient to meet” a postconviction applicant’s “burden of alleging facts that would allow the postconviction court to find that he was prejudiced by co unsel’s alleged failure to investigate.”). III. Conclusion ¶ 29 The order is affirmed. JUDGE NAVARRO and JUDGE PAWAR concur.