Peo v. Martinez

24CA0172 Peo v Martinez 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA0172 Douglas County District Court No. 06CR311 Honorable Theresa Slade, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Pedro Martinez, Defendant-Appellant. ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS Division A Opinion by CHIEF JUDGE TOW Taubman* and Ashby*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, 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. 2026. ¶1 Defendant, Pedro Martinez, appeals the district court’s order denying his Crim. P. 35(c) motion for postconviction relief. We affirm in part and reverse in part, and we remand the case for an evidentiary hearing on his claim of ineffective assistance of counsel during plea negotiations. I. Background ¶2 Martinez was convicted of multiple criminal offenses including, first degree kidnapping as a class 1 felony. The district court sentenced him to a controlling sentence of life without the possibility of parole (LWOP). ¶3 On direct appeal, a division of this court affirmed Martinez’s convictions. See People v. Martinez, (Colo. App. No. 07CA1127, June 25, 2009) (not published pursuant to C.A.R. 35(f)). ¶4 In 2021, Martinez filed a timely pro se Crim. P. 35(c) motion. See § 16-5-402(1), C.R.S. 2026 (establishing that there is no time limit to file a collateral attack on a class 1 felony conviction). He asserted that his trial counsel provided ineffective assistance by (1) misadvising him “as to how much time he would serve if he accepted the prosecution’s plea offer,” causing him to reject a plea offer he otherwise would have accepted; and (2) failing to investigate 1  and present a voluntary intoxication defense. Shortly thereafter Martinez filed a “supplemental” motion, requesting a proportionality review of his LWOP sentence. The district court appointed counsel who supplemented Martinez’s three claims and added a fourth claim that counsel had failed to object to hearsay evidence at trial. The prosecution responded and opposed Martinez’s request for an evidentiary hearing. In a written order, the district court denied the motion and both supplements without a hearing. II. Discussion ¶5 Martinez appeals the district court’s denial of his Crim. P. 35(c) motion and supplements. Although Martinez’s various pleadings raised four claims, he appeals the denial of only two: (1) his claim that trial counsel was ineffective in the plea-bargaining process and (2) his request for a proportionality review of his LWOP sentence.1 Because we conclude that the district court should have held a hearing on Martinez’s claim of ineffective assistance in the 1 By not reasserting in this appeal his claims arising out of the alleged failures to (1) investigate and present a voluntary intoxication defense and (2) object to the admission of hearsay, Martinez has abandoned them. People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007). 2  plea-bargaining process, we remand for a hearing on that claim alone. We otherwise affirm the district court’s order. A. Standard of Review ¶6 We review de novo the denial of a Crim. P. 35(c) motion without a hearing. People v. Delgado, 2019 COA 55, ¶ 6. ¶7 A district court may deny a Crim. P. 35(c) motion without a hearing only “if the motion, files, and record clearly establish that the defendant is not entitled to relief; if the allegations, even if true, don’t provide a basis for relief; or if the claims are bare and conclusory in nature and lack supporting factual allegations.” Id. at ¶ 8. Thus, when the defendant alleges sufficient facts that, if true, “may warrant relief, the court must conduct an evidentiary hearing.” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7 (emphasis added). B. Ineffective Assistance of Counsel During Plea Negotiations ¶8 A defendant’s right to the effective assistance of counsel extends to the plea-bargaining process. Missouri v. Frye, 566 U.S. 134, 144 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus, claims of ineffective assistance of counsel in the plea-bargaining process are subject to the two-part test set forth in Strickland v. 3  Washington, 466 U.S. 668, 687-88, 694 (1984). See Frye, 566 U.S. at 140. ¶9 Under the Strickland test, a defendant must show that (1) counsel’s performance was deficient, meaning it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defendant, meaning there is a reasonable probability that, but for counsel’s errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694. ¶ 10 In the context of a rejected plea offer, a defendant establishes Strickland prejudice by showing that, but for counsel’s alleged deficiency, (1) the defendant would have accepted the offer, (2) the offer would have been presented to and accepted by the court, and (3) the defendant’s sentence under the offer would have been less severe than the one imposed after the jury’s guilty verdict. Chalchi- Sevilla, ¶ 6 (citing Lafler, 566 U.S. at 164). ¶ 11 In his pro se motion, Martinez alleged that trial counsel misadvised him “as to how much time he would serve if he accepted the prosecution’s [fifty-year] plea offer.” This incorrect advice, he asserted, caused him “to reject a plea he otherwise would have 4  accepted.” Martinez explained that, as reflected in the sentencing hearing transcript, counsel advised him that: The 50-year offer in my research on it, the longest anyone has ever lived physically in the Department of Corrections is 33 years. So a 50-year plea on a crime of violence is a life sentence. My advice to him on that was to go to trial. Take your chances with the jury because why plead to a life sentence if the worst that’s going to happen to you at the end of trial is a life sentence. ¶ 12 Martinez added that counsel’s advice failed to account for parole eligibility, and because Martinez “was only in his mid-20’s when he committed the offenses,” he “would have only been in his 50’s to early 60’s when he became parole eligible.” “[L]ife,” Martinez posited, “is not over at this stage.” Martinez also alleged that had he known the fifty-year offer was not in fact a life sentence, he would have taken it because “he wanted to take responsibility for his crimes.” In support, he pointed again to counsel’s statements at the sentencing hearing when counsel urged the district court not to hold the case going to trial against Martinez because he “never wanted a trial on this case.” ¶ 13 Accepting Martinez’s factual allegations as true, as we must at this stage, we conclude that he has sufficiently stated a claim of 5  ineffective assistance of counsel to warrant a hearing on his motion. Counsel’s failure to correctly advise a defendant about a plea offer “deprives the defendant of the opportunity to make a reasonably informed decision whether to accept or reject an offer and constitutes deficient performance.” Delgado, ¶ 17. Thus, Martinez alleged sufficient facts that, if true, would establish that trial counsel’s performance was deficient. ¶ 14 As for prejudice, Martinez asserted that if not for counsel’s incorrect advice, he would have accepted the fifty-year offer. And the fifty-year prison sentence was less severe than the LWOP sentence “that in fact w[as] imposed.” Id. at ¶ 21 (quoting Lafler, 566 U.S. at 164). Though Martinez did not specifically allege that the prosecution would not have withdrawn the offer or that the court would have accepted it, nothing in the record (or in the People’s briefing) suggests otherwise. ¶ 15 In denying this claim on prejudice grounds alone, the district court relied on two statements made at the sentencing hearing — namely, (1) trial counsel’s assertion that Martinez “was willing to do a lot on this case but plead to 32 years”; and (2) Martinez’s own statement that he “felt that the punishment [the prosecution was] 6  offering was too much for [his] crime.” Based on these statements, the court found that, although the prosecution offered a plea agreement of fifty years and the offer’s terms were legal, there was not a reasonable probability that Martinez would have accepted it. See id. at ¶ 29. ¶ 16 We disagree that these two statements directly refute Martinez’s claim. See People v. Phipps, 2016 COA 190M, ¶ 19. One reasonable view of the statements is that Martinez did not independently conclude that thirty-two years (or more) was excessive. Rather, his belief was shaped by his counsel’s advice that “a 50-year plea . . . is a life sentence” and counsel’s belief that “the longest anyone has ever lived physically in the Department of Corrections is 33 years.” Indeed, “[w]hen an individual is represented by an attorney, it is reasonable to expect that he would rely on his attorney’s advice.” People v. Martinez-Huerta, 2015 COA 69, ¶ 22. Another view (adopted by the People and the district court) is that Martinez rejected the plea offer based on his own independent assessment that a fifty-year sentence was excessive. ¶ 17 This dispute concerning what advice trial counsel gave Martinez — including whether that advice took into account 7  Martinez’s parole eligibility — and whether that advice affected his decision to reject the fifty-year plea offer should not have been summarily rejected and, instead, must be resolved at an evidentiary hearing. See Chalchi-Sevilla, ¶ 20 (concluding that an evidentiary hearing was necessary to ascertain the “factual circumstances of trial counsel’s discussion(s) with [the defendant] about the prosecution’s plea offer” where the defendant alleged that counsel advised him to reject a sixty-year plea offer without informing him of the possibility of parole); see also People v. Simpson, 69 P.3d 79, 81 (Colo. 2003) (stating that a court should hold an evidentiary hearing to ascertain the veracity of a defendant’s allegations when the alleged facts, if true, “may be sufficient to provide a basis for relief”). Accordingly, we reverse the district court’s denial of this ineffective assistance of counsel claim and remand for a hearing. C. Proportionality Review Claim ¶ 18 Martinez contends that he is entitled to a proportionality review of his LWOP sentence. The People counter that the district court was required to deny the motion as successive under Crim. P. 35(c)(3)(VII). See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (“On appeal, a party may defend the trial court’s judgment on 8  any ground supported by the record, whether relied upon or even considered by the trial court.”). Reviewing de novo whether Martinez’s claim is successive, see People v. Thompson, 2020 COA 117, ¶ 42, we agree with the People. ¶ 19 Initially, it appears that the district court may have incorrectly interpreted Wells-Yates v. People, 2019 CO 90M, as limiting proportionality reviews to defendants who have been adjudicated as habitual offenders. To the extent the court did so, its denial of Martinez’s claim on this basis was error. Nevertheless, we may affirm the district court’s judgment on different grounds. People v. Hamm, 2019 COA 90, ¶ 23. ¶ 20 A request for a proportionality review is a challenge to the constitutionality of a sentence under the Eighth Amendment and is cognizable under Crim. P. 35(c). People v. Castillo, 2022 COA 20, ¶ 38. With exceptions not applicable here, a court must deny a Crim. P. 35(c) claim that could have been presented in a prior appeal or postconviction proceeding. See Crim. P. 35(c)(3)(VII); People v. Taylor, 2018 COA 175, ¶ 17 (The language directing a court to deny successive postconviction claims is “mandatory rather than permissive.”); see also People v. McDonald, 2023 COA 23, ¶¶ 7- 9  8, 24 (a postconviction request for proportionality review is subject to Crim. P. 35(c)’s successiveness bar), aff’d, 2024 CO 75. ¶ 21 Because Martinez could have argued that his sentence was grossly disproportionate in his direct appeal, but did not, his claim is successive. See People v. Isom, 2015 COA 89, ¶¶ 31-32 (determining that a constitutional claim that could have been raised on direct appeal is appropriately denied as successive), aff’d on other grounds, 2017 CO 110. We are not persuaded by Martinez’s contention that he could not have brought his proportionality challenge in his direct appeal because his claim depends on facts not developed in the district court. Other divisions of this court have reviewed a proportionality challenge on direct appeal notwithstanding the lack of preservation (and thus the lack of any development of a factual record) in the trial court. See, e.g., People v. Walker, 2022 COA 15, ¶¶ 54-60 (reviewing an unpreserved proportionality challenge for plain error). Alternatively, had Martinez raised his proportionality challenge on direct appeal, the division could have remanded the case to the district court if it believed that further factual development was necessary. Indeed, the court in Wells-Yates did just that. See Wells-Yates, ¶ 75. 10 ¶ 22 Martinez asserts that we should follow the lead of the division in Castillo and conduct a proportionality review for the first time in a postconviction appeal. See Castillo, ¶¶ 36-44. But Martinez’s reliance on Castillo is unavailing. Unlike here, there is no indication that the People in that case challenged the defendant’s claim as successive. In any event, divisions of this court are not bound by one another. People v. Martinez, 2022 COA 142, ¶ 24. ¶ 23 Finally, we reject Martinez’s assertion that Wells-Yates created a new rule of constitutional law that should be applied retroactively to cases on collateral review pursuant to Crim. P. 35(c)(3)(VII)(c). Our supreme court has determined that Wells-Yates does not apply retroactively because the new rules it announced are procedural, not substantive. McDonald v. People, 2024 CO 75, ¶ 34. ¶ 24 Accordingly, we conclude that Martinez’s proportionality claim is barred as successive under Crim. P. 35(c)(3)(VII). III. Disposition ¶ 25 The order is affirmed in part and reversed in part, and the case is remanded for an evidentiary hearing on Martinez’s claim that trial counsel provided ineffective assistance in the plea- bargaining process. 11 JUDGE TAUBMAN and JUDGE ASHBY concur. 12