Peo v. Welborne

25CA1070 Peo v Welborne 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1070 Larimer County District Court No. 13CR1167 Honorable Stephen J. Jouard, Judge The People of the State of Colorado, Plaintiff-Appellant, v. Christopher Wesley Welborne, Defendant-Appellee. ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE GOMEZ Harris and Lipinsky, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Gordon P. McLaughlin, District Attorney, Russell B. Connelly, Deputy District Attorney, Fort Collins, Colorado, for Plaintiff-Appellant Lauretta A. Martin Hillier, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellee ¶1 In this postconviction case, the People appeal the court’s order granting the Crim. P. 35(c) motion filed by defendant, Christopher Wesley Welborne, and ordering a new trial based on ineffective assistance of counsel arising from trial counsel’s joint representation of Welborne and his codefendant. Because we conclude that Welborne knowingly, voluntarily, and intelligently waived his right to conflict-free counsel, we reverse the order without deciding whether a conflict existed or adversely affected counsel’s representation and remand the case for reinstatement of Welborne’s original judgment of conviction and sentence. I. Background ¶2 Welborne and his mother, Kellie Jean Lawson, were charged separately with the same four offenses arising from a fire at their rented home: first degree arson, criminal mischief, theft, and attempted theft. The People alleged that the pair intentionally set the fire to collect insurance proceeds. Welborne and Lawson denied the allegations and maintained that they were together, away from the home, when the fire began. ¶3 Welborne and Lawson retained attorney Joseph Fonfara to represent them both and ultimately proceeded to a joint trial. In 1  Welborne’s case, the trial court addressed the potential conflict arising from the joint representation five separate times before trial. Welborne also executed a written waiver. ¶4 The jury convicted Welborne of all four charges. As a result of Welborne’s direct appeal, his criminal mischief conviction was merged into his arson conviction. ¶5 Welborne timely sought postconviction relief based, in part, on Fonfara’s alleged ineffective assistance of counsel relating to the joint representation. By then, Fonfara had died, and his file on this case could not be located. The postconviction court denied most of Welborne’s claims without a hearing. The court then conducted an evidentiary hearing to consider • “[w]hether there was an actual conflict that adversely affected trial counsel’s representation and whether . . . Welborne made a knowing, voluntary and intelligent waiver of the conflict”; • “[w]hether defense counsel rendered ineffective assistance by proceeding to a joint trial and whether . . . Welborne was properly advised and made a knowing, 2  intelligent and voluntary waiver of his right to a separate trial”; and • “[w]hether defense counsel was ineffective by failing to seek a limiting instruction with regard to [CRE] 404(b) evidence submitted at trial.” ¶6 After the hearing, the postconviction court entered an order concluding that Fonfara had labored under a conflict of interest adversely affecting his representation of Welborne and that Welborne hadn’t validly waived his right to conflict-free counsel. The court therefore vacated Welborne’s convictions and ordered a new trial. This appeal followed. II. Welborne’s Waiver of His Right to Conflict-Free Counsel ¶7 The People contend that the postconviction court erred by concluding that Welborne didn’t validly waive his right to conflict- free counsel. Specifically, they argue that the court applied an erroneously heightened standard for waiver and that, applying the correct standard, Welborne effectuated a valid waiver. We agree. A. Standard of Review and Legal Standards ¶8 We review a postconviction court’s ruling on a Crim. P. 35(c) motion following an evidentiary hearing as a mixed question of fact 3  and law. People v. Corson, 2016 CO 33, ¶ 25. We defer to the postconviction court’s factual findings if they are supported by the record, but we review its legal conclusions de novo. West v. People, 2015 CO 5, ¶ 11. ¶9 The Sixth Amendment right to the effective assistance of counsel includes the right to conflict-free representation. People v. Martinez, 869 P.2d 519, 524 (Colo. 1994). But a defendant may waive that right so long as the waiver is voluntary, knowing, and intelligent. Dunlap v. People, 173 P.3d 1054, 1070 (Colo. 2007). ¶ 10 The prosecution bears the burden of showing that the defendant understood any conflict of interest and its likely effect on counsel’s ability to provide effective representation and that, thereafter, the defendant voluntarily, knowingly, and intelligently relinquished the right to conflict-free representation. Martinez, 869 P.2d at 525. ¶ 11 A valid waiver forecloses a later claim of ineffective assistance of counsel based on the waived conflict. Dunlap, 173 P.3d at 1070. B. Additional Facts ¶ 12 The trial court initially addressed the potential conflict arising from Fonfara’s joint representation when Fonfara first appeared 4  before the court on behalf of Welborne and Lawson. At that time, Fonfara told the trial court, in Welborne’s presence, We have discussed this extensively, and they’re well aware of the possibility, although we all believe not a likelihood, of a conflict of interest. I’ve explained to them that if that happens, I most likely would not be able to represent either one of them and they would have to get independent attorneys. ¶ 13 Fonfara explained that Welborne and Lawson sought joint representation for two reasons. First, he described their defenses as “very parallel” and “essentially . . . identical” in that they both denied setting the fire and maintained that they were together, away from the home, when it started. Second, he cited “economical and financial” considerations, explaining that neither of them qualified for a public defender and that they were unlikely to be able to afford hiring a second attorney. ¶ 14 The trial court then addressed both defendants directly. Welborne confirmed that he understood his right to independent counsel, including appointed counsel if he couldn’t afford to hire counsel. Welborne also confirmed that he had heard Fonfara’s description of the potential conflict, that it accurately reflected his understanding, and that he nevertheless wanted Fonfara to 5  represent both him and Lawson. The court found that Welborne understood his right to conflict-free counsel and chose to proceed with the joint representation, and it directed Fonfara and Welborne to memorialize the waiver in writing. ¶ 15 Shortly thereafter, defense counsel filed a waiver form signed by Welborne. By signing that form, Welborne acknowledged that he “ha[d] been fully and adequately advised regarding the possibilities of a conflict of interest arising through the dual representation of himself and [Lawson]” and that he “[wa]s willing to accept such risk under the particular circumstances of his case.” ¶ 16 The trial court continued to revisit Welborne’s waiver as the case proceeded. At an appearance a few months into the case, the court again asked Welborne whether he understood the potential for a conflict of interest in the joint representation and whether he wanted to continue to waive that potential conflict. Welborne answered, “[Y]es,” to both questions. A month later, before accepting both defendants’ not guilty pleas, the court again addressed the potential conflict, and Welborne again confirmed his decision to proceed with joint representation. 6 ¶ 17 The court returned to the issue once again at the pretrial conference. At that time, the court addressed both Welborne’s right to conflict-free counsel and his related decision to proceed to trial jointly with Lawson: THE COURT: You understand that you have the right to have your own attorney? WELBORNE: Yes, I do. THE COURT: Okay. And in this case you have the right — in any criminal case, you have the right to conflict-free counsel. WELBORNE: Yes, ma’am. THE COURT: And that an example of a conflict that counsel may have is representing a codefendant, in this case Ms. Lawson. WELBORNE: Yes. THE COURT: Okay. And do you understand that you have the right to have an attorney who is not representing a codefendant, who’s representing just you in this case? WELBORNE: Yes, ma’am. THE COURT: Okay. And, Mr. Welborne, are you giving up or waiving your right to have an independent attorney? WELBORNE: Yes. THE COURT: To have someone other than Mr. Fonfara, who’s representing Ms. Lawson? 7  WELBORNE: Yes. .... THE COURT: . . . [D]o you understand that you are requesting a joint trial in this case, that you’re requesting that your case be tried with Ms. Lawson? WELBORNE: Yes, ma’am. THE COURT: Okay. And you understand you have the right to have your own trial in this matter? WELBORNE: Yes, I do. THE COURT: Okay. And that by having a joint trial, you are giving up certain rights? WELBORNE: Yes, ma’am. THE COURT: You’re giving up certain defenses that you may otherwise have if you were to go forward with your own trial in this case? WELBORNE: Yes, ma’am. THE COURT: Do you also understand that you are giving up the right to have the full individual number of peremptory challenges? WELBORNE: Yes. ¶ 18 Welborne also confirmed that he was choosing to proceed with both joint representation and a joint trial of his own free will, not based on any threats or coercion. Fonfara, in turn, confirmed that he had advised Welborne of his right to conflict-free counsel and 8  believed that Welborne’s waiver was knowing, voluntary, and based on complete information. ¶ 19 The court addressed the matter one final time on the morning the trial started. Fonfara expressed that he had discussed the issue with his clients individually “numerous times.” The court then questioned Welborne: THE COURT: Do you understand that you have the right to conflict-free counsel here? WELBORNE: Yes. THE COURT: In other words, you have the right to have your own attorney if you would like. WELBORNE: Yes, ma’am. THE COURT: And do you also understand that if you cannot afford to hire an attorney you can request the appointment of an attorney to represent you? WELBORNE: Yes, ma’am. THE COURT: All right. Mr. Fonfara is representing both you and Ms. Lawson in this case. WELBORNE: Yes, ma’am. THE COURT: And do you understand, Mr. Welborne, the fact that he is representing both of you has the potential for creating a conflict here? 9  WELBORNE: Yes, ma’am. .... THE COURT: Mr. Welborne, do you understand you have the right to have your own independent trial? WELBORNE: Yes, ma’am. THE COURT: That you — that by having a joint trial with Ms. Lawson you are giving up certain rights that you would have if you had an independent trial? WELBORNE: Yes, ma’am. THE COURT: Do you understand that you are giving up the right to present certain defenses, certain arguments, and to select a jury independently with the number of peremptory challenges you would be entitled to as an individual? WELBORNE: Yes, ma’am. .... THE COURT: Have you discussed these issues with Mr. Fonfara, both the issue of independent conflict-free counsel and the choice of going forward with a separate trial? WELBORNE: Yes, ma’am. ¶ 20 After also confirming that Welborne was making his choices voluntarily, without threats or coercion, and that Fonfara believed Welborne understood the rights he was waiving, the court accepted 10  the waivers. The court observed that it had addressed the matter “a number of times” and found that Welborne understood his rights and was making the choices voluntarily. C. Analysis ¶ 21 In assessing whether Welborne validly waived his right to conflict-free counsel, the postconviction court separately considered Fonfara’s disclosures and the trial court’s inquiries. As to Fonfara’s disclosures, the court acknowledged that the record reflected discussions of possible conflicts but found no indication that Fonfara had given Welborne “any specific advisement of a specific conflict” relating to “specific evidence” or “possible defenses.” Because Fonfara had died and his file couldn’t be located, the court was left with what it described as a “limited” record and Welborne’s unrebutted testimony — which it characterized as “self-serving” — that Fonfara hadn’t adequately advised him. The court therefore found that nothing in the record established that Fonfara had given Welborne a “specific advisement,” had explained exactly how a conflict might arise at trial, or had discussed the specific evidence that might be offered in a joint trial. 11 ¶ 22 The postconviction court similarly found the trial court’s inquiries insufficiently specific. Although the trial court had repeatedly addressed the potential conflict, the postconviction court determined that its inquiries didn’t address “specific conflicts based upon the evidence or specific defenses that might be asserted by each defendant.” In particular, it found that the trial court hadn’t advised Welborne about “specific evidence that might be offered at trial” or “how . . . a clear conflict of interest may manifest at trial.” ¶ 23 Based on those perceived deficiencies, the postconviction court concluded that the People had not established a valid waiver because the record didn’t show that Welborne had been adequately advised of “the specific nature of the conflicts,” including how particular evidence supported separate trials and the need to limit or exclude certain other acts evidence relating to Lawson. ¶ 24 The postconviction court correctly recognized that, to effectuate a valid wavier, Welborne had to fully understand the nature of the conflict and its effect on Fonfara’s representation. But the court’s application of that standard required the record to establish something more: the specific contents of Fonfara’s private advisements and a detailed description in the earlier proceedings of 12  the precise ways in which the potential conflict might manifest during trial. Neither is the measure of a valid waiver. ¶ 25 Colorado law imposes related obligations on counsel and the trial court when a potential conflict becomes reasonably apparent. Counsel must inform the defendant of the nature of the conflict and explain, in plain terms, the specific ways it may affect counsel’s ability to effectively represent the defendant. People v. Curren, 228 P.3d 253, 258 (Colo. App. 2009). But “[t]o protect the client-attorney relationship, such consultations need not be presented on the record or in open court.” People v. Edebohls, 944 P.2d 552, 557 (Colo. App. 1996), overruled on other grounds by People v. Lopez, 2024 CO 50. Instead, counsel must place the potential conflict on the record and inform the court that the necessary disclosures have been made. Id. at 556. Thus, what counsel must disclose to the defendant differs from what counsel must disclose to the court on the record. ¶ 26 The trial court has a separate obligation. To ensure a valid waiver, the record must affirmatively show that the court “fully explained the nature of the conflict and the difficulties defense counsel faced in his effective advocacy for the defendant.” Tyson v. 13  Dist. Ct., 891 P.2d 984, 990 (Colo. 1995) (quoting Martinez, 869 P.2d at 525). The defendant must be “fully apprised . . . of the nature of the conflict and the specific ways in which the conflict may affect the ability of [the] attorney to advocate on behalf of [the] defendant at various stages of the pending litigation.” Id. at 991. ¶ 27 The required inquiry, however, is not as expansive as the postconviction court seemed to assume. Tyson requires a knowing waiver of “all conflicts that are reasonably foreseeable under the circumstances.” 891 P.2d at 991. The inquiry requires adequate advisement for an informed choice, not an exhaustive catalog of every way in which a conflict might ultimately manifest. See United States v. Lowry, 971 F.2d 55, 61 (7th Cir. 1992) (asking whether the defendant possessed sufficient information to make a rational choice, “not whether every facet of every potential problem was detailed for him”); United States v. Brown, 202 F.3d 691, 698 (4th Cir. 2000) (asking whether the defendant understood the “crux of the conflict” and its implications, not whether he knew “each detail concerning the conflict”). ¶ 28 There is no prescribed formula for assessing the adequacy of a court’s advisements. Rather than isolating a particular colloquy, we 14  consider the totality of the circumstances, including the substance of the court’s advisements, the defendant’s responses, and whether the exchanges consisted of just “pro forma answers to pro forma questions.” People v. Arguello, 772 P.2d 87, 95 (Colo. 1989); see Edebohls, 944 P.2d at 557; United States v. Migliaccio, 34 F.3d 1517, 1527-28 (10th Cir. 1994). The question, then, is whether the record as a whole establishes that Welborne understood the nature of the potential conflict and its material implications sufficiently to make an informed choice to proceed with the joint representation. See Arguello, 772 P.2d at 94-96; Edebohls, 944 P.2d at 557. ¶ 29 We conclude that it does. The trial court identified the nature of the potential conflict and explained how it could affect Fonfara’s representation of Welborne. And the court questioned Welborne about the joint representation on five separate occasions between the beginning of the case and the start of trial. Considered together, those inquiries established that Welborne understood the source of the potential conflict, his right to avoid it, and the material ways in which proceeding jointly could affect his defense. Each time, Welborne unequivocally chose to proceed with joint 15  representation. The written waiver provided an additional memorialization of that choice. ¶ 30 Nor did the court’s exchanges with Welborne consist merely of “pro forma answers to pro forma questions.” Arguello, 772 P.2d at 95. As the trial approached, the court’s inquiries became increasingly specific. In particular, as part of its questioning at the pretrial conference and on the first day of trial, the court advised Welborne that by proceeding to a joint trial with the same attorney as Lawson, he was relinquishing certain rights — for instance, the right to have an attorney represent him alone, to have his own separate trial (which would inherently mean a trial with evidence specific to him), to present “certain defenses,” to make “certain arguments,” and to select a jury independently. Welborne confirmed that he understood and voluntarily chose both joint representation and a joint trial. Although the right to conflict-free counsel and the right to a separate trial are distinct, the court’s joint trial advisements bore directly on the conflict: They identified concrete ways in which a single attorney’s simultaneous representation of both defendants at a combined trial could 16  constrain the defense — the very consequences a knowing waiver of the conflict must encompass. ¶ 31 The trial court’s repeated inquiries established that Welborne understood the material consequences of the joint representation. Rather than obtaining a single assent to joint representation, the court returned to the issue over and over again throughout the proceedings, confirmed Welborne’s understanding, and repeatedly gave him the opportunity to choose independent counsel. ¶ 32 To the extent that the postconviction court may have expected a more extensive record concerning Fonfara’s discussions, Fonfara wasn’t required to disclose the substance of his attorney-client privileged consultations with Welborne in open court. See Edebohls, 944 P.2d at 557. And to the extent that it may have expected more detailed discussions before the trial court, the trial court was required to ensure only that Welborne understood the nature of the conflict and the reasonably foreseeable ways it could affect Fonfara’s representation — not to catalogue every item of evidence or strategic consequence through which the conflict might ultimately manifest. See Tyson, 891 P.2d at 990-91; Lowry, 971 F.2d at 61; Brown, 202 F.3d at 698; see also People v. Waddell, 24 17  P.3d 3, 8 (Colo. App. 2000) (finding a valid waiver despite the abbreviated nature of the discussion of the conflict and its potential effect on defense counsel’s representation). ¶ 33 Accordingly, we conclude, based on the totality of the circumstances, that Welborne knowingly, voluntarily, and intelligently waived his right to conflict-free counsel. Because that waiver forecloses his ineffective assistance claim based on the conflict, see Dunlap, 173 P.3d at 1070, we needn’t decide whether a conflict existed or adversely affected Fonfara’s representation. III. Disposition ¶ 34 The order is reversed, and the case is remanded for the postconviction court to reinstate Welborne’s original convictions and sentence. JUDGE HARRIS and JUDGE LIPINSKY concur. 18