Peo v. Garrison

24CA1014 Peo v Garrison 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1014 Larimer County District Court No. 23CR140 Honorable Stephen J. Jouard, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Billy James Garrison, Defendant-Appellant. ORDER AFFIRMED Division IV Opinion by JUDGE LIPINSKY Harris and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Ainsley E. Baum, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Billy James Garrison appeals the district court’s order denying his request for court-appointed counsel and denying his pro se Crim. P. 35(c) motion without a hearing. We affirm. I. Background ¶2 The prosecution charged Garrison with two counts of sexual assault on a child by a person in a position of trust, one of them as a pattern of abuse. Each count was a class 3 felony. The two named victims were the children of Garrison’s ex-girlfriend. ¶3 Garrison pleaded guilty to an added count of sexual exploitation of a child in exchange for dismissal of the original charges. The parties agreed to a sentence of ten years on sex offender intensive supervised probation. At the providency hearing, Garrison confirmed his understanding that “the sentencing range for a class 3 felony is . . . incarceration from four to twelve years in a presumptive range and up to twenty-four years if aggravated circumstances exist.” Consistent with the plea agreement, the court sentenced Garrison to ten years of sex offender intensive supervised probation subject to certain terms and conditions, including placement in community corrections for two years. 1 ¶4 Two months after sentencing, Garrison filed a Crim. P. 35(c) motion in which he asserted that plea counsel provided ineffective assistance of counsel by (1) failing to seek a court order authorizing Garrison to hire a psychologist to interview the victims without their parents’ interference and, instead, telling Garrison that the victims’ mother would not consent to such interviews; (2) failing to obtain and review the victims’ mother’s “labor board” records to show that she “never worked” during the relevant time period and, thus, was “being dishonest” about the accusations of child abuse, which allegedly occurred when she was at work; (3) disregarding a defense investigator’s statement to Garrison that there was “more than enough evidence” to prove that the mother was lying and coercing the children and, instead, telling Garrison that “none of that matters” because “juries tend to believe kids”; (4) countermanding Garrison’s instruction to allow the prosecuting attorney to speak with various defense witnesses because, according to plea counsel, the 2  prosecutor would “try to coerce the [defense] witnesses to change the[ir] statements”; and (5) telling Garrison that the court would not reduce Garrison’s bond because the judge “was not being impartial” and believed that Garrison was guilty. In addition, Garrison requested that the district court appoint counsel for him. ¶5 In a written order, the district court denied Garrison’s request for counsel based on its finding that Garrison’s motion was “wholly unfounded” and denied his request for relief under Crim. P. 35(c) without a hearing. As relevant to this appeal, the court concluded that Garrison had failed to assert that he was prejudiced by plea counsel’s alleged ineffectiveness. The court specifically found that Garrison had not alleged that he “would not have entered into a guilty plea” had plea counsel “engaged in the discovery and investigation urged by [Garrison].” 3  II. Analysis A. Standard of Review and Substantive Law ¶6 We review de novo a district court’s decision to deny a Crim. P. 35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14, 459 P.3d 516, 519. ¶7 A criminal defendant has a constitutional right to the effective assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. To obtain relief on an ineffective assistance claim, a defendant must show that (1) counsel’s performance was deficient, in that it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “[T]o qualify for the appointment of postconviction counsel, a defendant’s postconviction motion must provide allegations that, if true, would establish both prongs of the Strickland test.” Townsell v. People, 2026 CO 11M, ¶ 29, 585 P.3d 838, 844. ¶8 To demonstrate prejudice resulting from plea counsel’s alleged ineffectiveness, a defendant who entered into a plea agreement must show an objectively reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty 4  and instead would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); People v. Vicente-Sontay, 2014 COA 175, ¶ 20, 361 P.3d 1046, 1051; see also Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (A defendant “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”). ¶9 If a court determines that a defendant alleging ineffective assistance of counsel failed to demonstrate one prong of the Strickland test, it may deny the defendant’s claim without addressing the other prong. See Strickland, 466 U.S. at 697. Thus, the Crim. P. 35(c) motion of a defendant who entered into a plea agreement fails — regardless of the strength of his argument regarding his counsel’s deficient performance — if the defendant does not also argue that, but for his counsel’s ineffectiveness, he would have rejected a plea and insisted on proceeding to trial. See Hill, 474 U.S. at 57, 59; Vicente-Sontay, ¶ 20, 361 P.3d at 1051. ¶ 10 In addition, as the district court correctly noted, defendants do not have a constitutional right to appointed postconviction counsel under either the United States or Colorado Constitutions. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Silva v. People, 5  156 P.3d 1164, 1167 (Colo. 2007). However, defendants in Colorado cases have “a limited statutory right to postconviction counsel for meritorious Crim. P. 35(c) motions.” Townsell, ¶ 19, 585 P.3d at 843 (emphasis added) (quoting Silva, 156 P.3d at 1168); see § 21-1-104(1)(b), C.R.S. 2026. A defendant can greatly benefit from postconviction counsel’s ability to supplement the defendant’s pro se motion and add claims that counsel believes have “arguable merit.” Crim. P. 35(c)(3)(V). ¶ 11 But a defendant whose postconviction motion is “wholly unfounded” is not entitled to appointed counsel. Duran v. Price, 868 P.2d 375, 379 (Colo. 1994). In other words, a defendant is not entitled to have a court-appointed lawyer attempt to transmute baseless postconviction claims into ones that will pass legal muster. B. The District Court Did Not Err by Denying Garrison’s Motion Without a Hearing ¶ 12 A defendant is not entitled to a hearing on a Crim. P. 35(c) motion unless the defendant asserts facts that, if true, would provide a basis for relief. People v. Simpson, 69 P.3d 79, 81 (Colo. 2003). A district court may deny a Crim. P. 35(c) motion without a hearing when the motion, the files, and the record clearly establish 6  that the defendant is not entitled to relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). A court may also deny relief when the allegations are bare, conclusory, vague, or lacking in detail. People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). ¶ 13 Even assuming that Garrison alleged sufficient facts to permit a conclusion that plea counsel’s alleged errors and omissions constituted deficient performance, he failed to allege the necessary prejudice. He concluded the motion by requesting that his conviction be “dismissed or properly investigated” so that, “if necessary,” he could “have the opportunity [to] be proven innocent by a jury of his peers.” ¶ 14 Although we liberally construe Garrison’s pro se Crim. P. 35(c) motion, see People v. Bergerud, 223 P.3d 686, 696 (Colo. 2010), Garrison did not argue that, or explain why, but for counsel’s alleged errors and omissions, Garrison would have rejected a plea and insisted on proceeding to trial. See Hill, 474 U.S. at 57, 59; Vicente-Sontay, ¶ 20, 361 P.3d at 1051. And notwithstanding the suggestion in Garrison’s reply brief, the district court was not required to appoint postconviction counsel simply because Garrison 7  was pro se. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007). ¶ 15 Nor did Garrison allege facts that, if true, would establish that his “decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372; see also Lee v. United States, 582 U.S. 357, 367 (2017) (A defendant “will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial.”). Garrison’s failure to sufficiently allege prejudice is alone fatal to his motion. ¶ 16 To the extent Garrison raises new claims on appeal or attempts to fortify his claims of ineffective assistance with additional facts and new legal arguments, we do not consider them. See People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996). Contrary to Garrison’s argument on appeal, he did not merely “reframe” his legal arguments with the assistance of appellate counsel. Rather, his appellate counsel referred to factual allegations that did not appear in Garrison’s Crim. P. 35(c) motion. ¶ 17 For example, in the opening brief, Garrison’s appellate counsel argued that, had trial counsel conducted a thorough pretrial investigation, “he would have discovered at least three witnesses 8  [who] would have testified that Garrison did not have the opportunity to commit the charged offenses, because he was never left alone in the home with the children.” (Emphasis added.) But Garrison did not present this argument in his motion; rather, he said that trial counsel was ineffective because he disregarded Garrison’s instruction “to allow the [prosecutor] to see, read and contact witnesses to support [Garrison].” Garrison’s appellate counsel also said in the opening brief that Garrison asserted in his motion that, had trial counsel “conducted an appropriate and thorough pre-trial investigation,” Garrison would not have pleaded guilty. But in his motion, Garrison did not link trial counsel’s allegedly deficient investigation to his decision to accept the plea agreement. ¶ 18 Even setting aside Garrison’s failure to allege prejudice, his claims independently fail because the arguments in his motion regarding the alleged deficiencies in trial counsel’s performance did not support Garrison’s appellate argument that he was prejudiced by counsel’s “failure to conduct a pre-trial investigation to develop a plausible defense and to undermine the state’s case, because 9  discoverable evidence likely would have resulted in the acquittal of all charges.” ¶ 19 First, even if trial counsel hired a psychologist to interview the victims, the psychologist could not have opined that the victims were coached or that their statements were untruthful. See People v. Lopez, 2024 COA 26, ¶ 12, 550 P.3d 731, 734, aff’d on other grounds, 2026 CO 23, 587 P.3d 175. And witnesses are under no obligation to “submit to a pre-trial interview with either the prosecution or defense.” People v. Ray, 252 P.3d 1042, 1048 (Colo. 2011). ¶ 20 During oral argument, counsel for the People brought People v. Chard, 808 P.2d 351 (Colo. 1991), to our attention. In that case, the supreme court held that a trial court has the discretion to grant a defendant’s motion for the involuntary psychological examination of a child sexual abuse victim. Id. at 353. The supreme court cautioned, however, that a trial court should only order such an examination “when there is a compelling reason for it” and said that, before ordering the requested examination, the court must “balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the 10  examination producing material, as distinguished from speculative, evidence.” Id. (quoting People v. Estorga, 612 P.2d 520, 523 (Colo. 1980)). Garrison did not establish a “compelling reason” for a court-ordered psychological examination of the victims. His assertion that a defense psychologist could have obtained statements from the victims regarding the possible coercion “that is believed to have occurred” falls short of the “compelling reason” standard. People v. Turley, 870 P.2d 498, 501 (Colo. App. 1993) (denying the defense’s motion for a psychological examination of the victim because the defendant’s “assertions in this regard” were “speculative”); see People v. King, 581 P.2d 739, 741 (Colo. App. 1978) (holding that statements that are “conclusory in nature and . . . devoid of specific factual recitation” do not establish a “compelling reason” for ordering a psychological examination of a child victim of sexual abuse). ¶ 21 Second, review of the victims’ mother’s “labor board” records would not have established that she was at home at the time of the assaults. Just because the mother may not have worked on a particular day does not mean that she was at home the entire day. 11 ¶ 22 Third, trial counsel’s alleged disregard of the defense investigator’s statement that there was “more than enough evidence” to prove that the mother was lying and coercing the children undercuts Garrison’s argument that counsel did not conduct a pretrial investigation. Garrison in effect concedes that trial counsel knew these witnesses’ anticipated testimony. ¶ 23 Fourth, Garrison’s argument that trial counsel should have authorized the prosecutor to speak with defense witnesses further demonstrates that defense counsel conducted a sufficient investigation to determine what those witnesses would say — and Garrison even summarizes their anticipated testimony in his motion. ¶ 24 In sum, Garrison’s motion, the files, and the record clearly established that he was not entitled to relief under Crim. P. 35(c). C. The District Court Did Not Err by Rejecting Garrison’s Request for Court-Appointed Counsel ¶ 25 Garrison’s failure to establish his entitlement to relief under Crim. P. 35(c) also demonstrates that the district court did not err by denying his request for appointed counsel — even though he could have benefited from legal representation. 12 ¶ 26 For the reasons explained above, the district court did not err by concluding that Garrison’s claims were “wholly unfounded” and that it need not appoint counsel for him. See Townsell, ¶ 29, 585 P.3d at 844 (explaining that a “court may determine [a] claim is wholly unfounded and that it need not appoint counsel” when the defendant fails to explain why, based on counsel’s alleged deficiency, there is a reasonable probability that the result of the proceeding would have been different); see also Osorio, 170 P.3d at 801 (discerning no error in summary denial of postconviction motion without appointing counsel when the allegations were conclusory, failed to allege prejudice, or were refuted by the record). III. Disposition ¶ 27 The order is affirmed. JUDGE HARRIS and JUDGE GOMEZ concur. 13