Peo v. Hagos

22CA1723 Peo v Hagos 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1723
City and County of Denver District Court No. 00CR3603
Honorable Christopher J. Baumann, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abraham Hagos,

Defendant-Appellant.

ORDERS AFFIRMED

Division I
Opinion by JUDGE J. JONES
Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant-
Appellant
¶1 Defendant, Abraham Hagos, appeals the postconviction court’s

orders denying his pro se Crim. P. 35(c) motion for postconviction

relief (as supplemented by counsel), his Crim. P. 35(c) motion for a

proportionality review, and his Crim. P. 35(a) motion to correct an

illegal sentence. We affirm the orders.1

I. Background

¶2 In 2002, a jury convicted Hagos of first degree kidnapping,

first degree burglary, felony menacing, and conspiracy to commit

second degree kidnapping, first degree burglary, and felony

menacing. The trial court sentenced him to life in the custody of

the Department of Corrections without the possibility of parole.

¶3 Hagos appealed his conviction, and a division of this court

affirmed. See People v. Hagos, (Colo. App. No. 03CA0315, Dec. 8,

2005) (not published pursuant to C.A.R. 35(f)) (Hagos I).

1 Hagos’s counsel improperly formatted citations to the record in

the opening brief by removing spaces, artificially lowering the word
count. This violated C.A.R. 28(e) and the Court of Appeals Policy on
Citation to the Record, https://perma.cc/NU53-ZBFQ. We
explicitly disapprove of that practice and expect that it won’t
happen again.
1
¶4 In 2006, Hagos filed a pro se Crim. P. 35(c) motion for

postconviction relief. He asserted, among other things, that the

prosecution presented insufficient evidence to sustain his first

degree kidnapping conviction and that inconsistencies between the

first degree kidnapping and felony menacing verdicts resulted in an

infirm conviction. The postconviction court summarily denied the

motion, and Hagos appealed through counsel. Postconviction

appellate counsel raised four arguments on appeal, none of which

challenged the evidence’s sufficiency or the first degree kidnapping

and felony menacing verdicts’ consistency. A division of this court

affirmed. See People v. Hagos, (Colo. App. No. 07CA0902, May 13,

2010) (not published pursuant to C.A.R. 35(f)), aff’d, 2012 CO 63.

¶5 In 2019, Hagos filed another pro se Crim. P. 35(c) motion for

postconviction relief. Through new counsel, he filed a supplemental

Crim. P. 35(c) motion two years later, asserting that postconviction

appellate counsel provided ineffective assistance by failing to argue,

in the appeal of the postconviction court’s denial of Hagos’s first

Crim. P. 35(c) motion, that the prosecution presented insufficient

evidence to sustain Hagos’s first degree kidnapping conviction and

2
that inconsistencies between the first degree kidnapping and felony

menacing verdicts and between the first degree kidnapping and

conspiracy to commit second degree kidnapping verdicts resulted in

an infirm conviction for first degree kidnapping. Counsel also

moved for (1) an abbreviated and extended proportionality review

under Crim. P. 35(c), asserting that Hagos’s life without parole

sentence is grossly disproportionate to his first degree kidnapping

conviction; and (2) correction of an illegal sentence under Crim. P.

35(a), asserting that Colorado law doesn’t authorize Hagos’s

sentence.

¶6 In separate orders, the postconviction court summarily denied

the supplemental Crim. P. 35(c) motion regarding postconviction

appellate counsel, the Crim. P. 35(c) motion for a proportionality

review, and the Crim. P. 35(a) motion to correct an illegal sentence.

Hagos appeals all three orders.

II. Standard of Review and Applicable Law

¶7 We review de novo a postconviction court’s summary denial of

a Crim. P. 35(c) motion. People v. Higgins, 2017 COA 57, ¶ 11. A

court may deny a Crim. P. 35(c) motion without a hearing when (1)

3
the motion, files, and record clearly establish that the defendant

isn’t entitled to relief; (2) the allegations, even if true, don’t provide a

basis for relief; or (3) the claims are bare and conclusory in nature

and lack supporting factual allegations. Id. at ¶ 4; see also Crim.

P. 35(c)(3)(IV).

¶8 We also review de novo the postconviction court’s summary

denial of a Crim. P. 35(a) motion to correct an illegal sentence. See

People v. Bassford, 2014 COA 15, ¶ 20. “A sentence that is

inconsistent with the statutory sentencing scheme outlined by the

General Assembly is illegal.” People v. Hard, 2014 COA 132, ¶ 46.

III. Postconviction Appellate Counsel

¶9 Hagos first contends that the postconviction court erred by

summarily denying his supplemental Crim. P. 35(c) motion

regarding postconviction appellate counsel. We disagree.

A. Applicable Law

¶ 10 A defendant has a limited statutory right to effective

assistance of postconviction counsel. Silva v. People, 156 P.3d

1164, 1168-69 (Colo. 2007). To succeed on an ineffective

assistance of counsel claim concerning trial, appellate, or

postconviction counsel, the defendant must show by a
4
preponderance of the evidence that (1) his counsel’s performance

was deficient and (2) the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Dunlap v.

People, 173 P.3d 1054, 1061-62 (Colo. 2007); Silva, 156 P.3d at

1169. If the defendant doesn’t satisfy both prongs, the claim fails.

Strickland, 466 U.S. at 697.

B. Analysis

¶ 11 In his motion, Hagos asserted that postconviction appellate

counsel provided ineffective assistance by failing to argue, in the

appeal of the denial of Hagos’s first Crim. P. 35(c) motion, that the

prosecution presented insufficient evidence to sustain his first

degree kidnapping conviction, and that inconsistencies between the

first degree kidnapping and felony menacing verdicts and between

the first degree kidnapping and conspiracy to commit second degree

kidnapping verdicts resulted in an infirm conviction for first degree

kidnapping.

¶ 12 The postconviction court ruled that these claims are

procedurally barred under Crim. P. 35(c)(3)(VII), which provides that

“[t]he court shall deny any claim that could have been presented in

5
an appeal previously brought or postconviction proceeding

previously brought.”

¶ 13 Hagos asserts that the court’s ruling is “nonsensical” because

“[i]t is impossible to assert ineffective postconviction counsel claims

until the conclusion of the postconviction proceedings.” See People

v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002). But even if he were

correct on the issue of successiveness as it applies to postconviction

appellate counsel, that would only get him so far. He fails to grasp

that, had postconviction appellate counsel raised these claims,

Crim. P. 35(c)(3)(VII) would have barred them as successive because

Hagos could have raised them on direct appeal. See People v.

Vondra, 240 P.3d 493, 494 (Colo. App. 2010) (under Crim.

P. 35(c)(3)(VII), a court must deny any claim that could have been

raised in a prior appeal).

¶ 14 Hagos’s argument might carry more weight if he had claimed

that postconviction appellate counsel failed to argue that trial

counsel — or even appellate counsel on direct appeal — provided

ineffective assistance by not challenging the evidence’s sufficiency

and the verdicts’ consistency. See Crim. P. 35(c)(3)(VIII)

6
(“Notwithstanding [Crim. P. 35(c)(3)(VII)], the court shall not deny a

postconviction claim of ineffective assistance of trial counsel on the

ground that all or part of the claim could have been raised on direct

appeal.”). But Hagos didn’t make such a claim. He merely claimed

that postconviction appellate counsel failed to challenge the

evidence’s sufficiency and the verdicts’ consistency in the appeal of

the denial of his first Crim. P. 35(c) motion. As noted, had

postconviction appellate counsel raised such challenges, this court

would have found them barred under Crim. P. 35(c)(3)(VII).

Therefore, postconviction appellate counsel couldn’t have provided

ineffective assistance by failing to raise them.

¶ 15 We reject Hagos’s argument that, because Crim. P.

35(c)(3)(VII)’s procedural bar didn’t take effect until two months

after he had directly appealed his conviction, this allowed him to

wait until a postconviction proceeding to assert his claims. As the

People point out, the Colorado Supreme Court adopted the relevant

amendments to Crim. P. 35 four months before Hagos’s counsel

filed the opening brief on direct appeal. See Rule Change 2004(2),

Colorado Rules of Criminal Procedure (Amended and Adopted by

7
the Court En Banc, Jan. 29, 2004), https://perma.cc/R9YQ-CT55.

Counsel thus could reasonably have believed when filing the

opening brief on direct appeal that Crim. P. 35, as amended, would

preclude Hagos from waiting until a postconviction proceeding to

raise claims that he could have raised in his direct appeal. See

People v. Walton, 167 P.3d 163, 167 (Colo. App. 2007) (concluding

that Crim. P. 35(c)(3)(VII) barred the defendant’s postconviction

claim because he didn’t raise it on direct appeal, even though the

opening brief in his direct appeal had been filed more than one year

before Crim. P. 35’s changes took effect). And postconviction

appellate counsel could therefore have reasonably decided that any

claim of ineffective assistance on this basis would go nowhere.

¶ 16 In any event, even if it was unclear whether Crim. P.

35(c)(3)(VII) would have barred Hagos’s claims, Hagos can’t

demonstrate that postconviction appellate counsel’s failure to raise

them amounted to ineffective assistance because the claims are

meritless.

¶ 17 In support of his insufficient evidence claim, Hagos argues

that the prosecution presented insufficient evidence to prove that

8
he forcibly seized and carried the victim and the victim suffered

bodily injury. See § 18-3-301(1)(a), C.R.S. 2024 (a person commits

first degree kidnapping by “[f]orcibly seiz[ing] and carr[ying] any

person from one place to another” with the requisite intent); § 18-3-

301(2), C.R.S. 2024 (“Whoever commits first degree kidnapping is

guilty of a class 1 felony if the person kidnapped shall have suffered

bodily injury.”).

¶ 18 Reviewing this issue de novo, see People v. Harrison, 2020 CO

57, ¶ 31, we conclude that substantial evidence in the record

supports Hagos’s first degree kidnapping conviction. The

prosecution presented sufficient evidence to prove that Hagos,

either personally or as a complicitor, forcibly seized and carried the

victim from one place to another.2 That a division of this court

concluded that the trial court erroneously instructed the jury that it

could find Hagos guilty of first degree kidnapping if he “forcibly, or

otherwise, seized and carried any person from one place to

another,” doesn’t render the evidence of force insufficient, as Hagos

2 The trial court instructed the jury that it could find Hagos guilty of

first degree kidnapping as a complicitor.
9
suggests. Rather, the division reasoned that the erroneous jury

instruction wasn’t plain error because the evidence of force was

overwhelming:

[T]he record contains overwhelming,
undisputed evidence that B.L. was seized and
carried from his apartment by force. He was
beaten, hit with a gun, threatened with a gun,
handcuffed, and ordered to walk to a car,
which took him away from his apartment at
gunpoint. It is also undisputed that the goal of
these acts was to obtain B.L.’s cooperation in
locating his brother, R.L. Further, the record
shows that this entire scenario was planned
and directed by [Hagos]. Testimony from a
number of witnesses shows that [Hagos]
organized the raid on B.L.’s apartment and
offered others a reward to help him locate his
missing money and drugs. . . .

Accordingly, because the record contains
overwhelming and undisputed evidence of
[Hagos]’s participation in the forcible removal
of B.L. from his apartment, we conclude the
addition of the language “or otherwise” did not
so undermine the fundamental fairness of the
trial as to cast serious doubt on the reliability
of the conviction.

Hagos I, slip op. at ¶¶ 17-18.

¶ 19 The prosecution also presented sufficient evidence to prove

that the victim suffered bodily injury as a result of the kidnapping.

The jury heard testimony that Hagos and his friend took a gun and

10
leather whip into a bathroom, where they hit and whipped the

victim. Afterwards, the victim looked “beat up” and “bruised,” and

blood covered “his eyes, nose, and . . . head.”

¶ 20 Hagos asks us to disregard this evidence because “such

testimony came from witnesses who were either co-defendants or

uncharged participants testifying for immunity, leniency, and self-

preservation” and the record contains exculpatory evidence. But

“the determination of the credibility of witnesses is solely within the

province of the jury[,] . . . [and] the trial court may not serve as a

thirteenth juror and determine what specific weight should be

accorded to various pieces of evidence or by resolving conflicts in

the evidence.” People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999);

see Harrison, ¶ 33 (in reviewing a sufficiency of the evidence

challenge, we may not consider whether we might have reached a

different conclusion than that of the jury or invade the jury’s

province by second-guessing any findings that are supported by the

evidence).

¶ 21 Because the prosecution presented sufficient evidence to

sustain his first degree kidnapping conviction, Hagos can’t prove

11
that counsel provided ineffective assistance by not challenging the

sufficiency of the evidence in the appeal of the denial of his first

postconviction motion.

¶ 22 Hagos raises two arguments in support of his inconsistent

verdicts claim: (1) the first degree kidnapping and felony menacing

verdicts are inconsistent; and (2) the first degree kidnapping and

conspiracy to commit second degree kidnapping verdicts are

inconsistent.

¶ 23 We review de novo whether verdicts are inconsistent. People v.

Delgado, 2019 CO 82, ¶ 13. Although it isn’t necessary for a guilty

verdict and a not guilty verdict to be consistent, two legally and

logically inconsistent guilty verdicts can’t stand. Id. at ¶¶ 14, 20.

Verdicts are legally and logically inconsistent where an element of

one offense negates a necessary element of the other. Id. at ¶ 20.

In making this determination, we review the evidence presented at

trial and ask “whether the jury had to rely on identical evidence in

producing two apparently inconsistent conclusions.” People v. Frye,

872 P.2d 1316, 1318 (Colo. App. 1993), aff’d, 898 P.2d 559 (Colo.

1995).

12
¶ 24 The jury convicted Hagos of first degree kidnapping as a class

1 felony, which, as discussed, required the jury to find beyond a

reasonable doubt that the victim suffered bodily injury. See § 18-3-

301(2); see also People v. Hines, 572 P.2d 467, 470 (Colo. 1977) (“To

support a finding of bodily injury the prosecution must prove that

at least some physical pain, illness or physical or mental

impairment, however slight, was caused by the kidnapper.”). The

jury also convicted Hagos of felony menacing, a lesser included

offense of second degree assault. While a person commits second

degree assault by causing bodily injury to another person by means

of a deadly weapon and with intent to cause such injury, § 18-3-

203(1)(b), C.R.S. 2024, a person commits felony menacing “if, by

any threat or physical action, he or she knowingly places or

attempts to place another person in fear of imminent serious bodily

injury,” § 18-3-206, C.R.S. 2024. The trial court instructed the jury

to determine Hagos’s guilt as to second degree assault (the charged

offense) before considering his guilt as to felony menacing (the

lesser included offense).

13
¶ 25 Hagos’s argument goes as follows. The key difference between

second degree assault and felony menacing is causation of bodily

injury; by finding Hagos guilty of felony menacing but not guilty of

second degree assault, the jury determined that he hadn’t caused

bodily injury to the victim. This determination creates ambiguity in

the first degree kidnapping verdict because, by finding Hagos guilty

of first degree kidnapping, the jury determined that he had caused

bodily injury to the victim.

¶ 26 This argument fails for several reasons. First, no element of

first degree kidnapping negates a necessary element of felony

menacing, so the verdicts are legally and logically consistent. See

Delgado, ¶ 20. Conceivably, one may commit both offenses by

knowingly placing a person in fear of serious bodily injury, see § 18-

3-206, while forcibly seizing and carrying the person from one place

to another, see § 18-3-301(1)(a), and, in doing so, cause bodily

injury to the person, see § 18-3-301(2). And contrary to Hagos’s

argument, the elements of first degree kidnapping and felony

menacing don’t conflict merely because one offense requires

causation of bodily injury and the other doesn’t. See Margerum v.

14
People, 2019 CO 100, ¶ 29 (“[T]he crimes of assault and menacing

have different elements and address different forms of harm that,

significantly, are not inconsistent. A person could commit both

crimes, and implicate both harms, in the same physical action

without an inconsistent finding by the fact finder. In other words, a

consistent factual basis can establish that someone caused bodily

injury to another while also knowingly placing the person in fear of

serious bodily injury.”); cf. Delgado, ¶¶ 27-28 (The defendant’s

robbery and theft convictions were inconsistent because the jury

found that he committed robbery by “tak[ing] anything of value from

the person or presence of another by the use of force, threats, or

intimidation” and that he committed theft “from the person of

another by means other than the use of force, threat, or

intimidation.”) (citations omitted).

¶ 27 Second, we aren’t convinced that, by acquitting Hagos of

second degree assault before convicting him of felony menacing, the

jury necessarily determined that Hagos didn’t cause the victim

bodily injury. Acquittals tell us very little about the jury’s thought

process. The jury could have found that Hagos caused the victim

15
bodily injury but that, instead of having intended to cause bodily

injury, he had intended only to place the victim in fear of imminent

serious bodily injury. Or the jury could have acquitted Hagos of

second degree assault as a result of lenity, which only inures to his

benefit. See id. at ¶ 25 (Inconsistent guilty and not guilty verdicts

may be upheld “because the verdicts could have been the result of

‘mistake, compromise, or lenity[.]’ In other words, ‘[t]he most that

can be said . . . is that the verdict shows that either in the acquittal

or the conviction the jury did not speak their real conclusions, but

that does not show that they were not convinced of the defendant’s

guilt.’” (quoting United States v. Powell, 469 U.S. 57, 63, 65 (1984))).

¶ 28 Third, the jury may have convicted Hagos of first degree

kidnapping and felony menacing based on different evidence. In

closing argument, the prosecutor argued that Hagos menaced the

victim with a gun in the bedroom of the victim’s apartment. Hagos

and his friends then carried the victim to another apartment. In

the bathroom of this other apartment, Hagos beat the victim while

demanding to know the money’s location. Therefore, the jury could

have found Hagos guilty of felony menacing based on what occurred

16
at the victim’s apartment and of first degree kidnapping based on

what occurred later. See People v. Corpening, 837 P.2d 249, 251-52

(Colo. App. 1992) (the defendant’s contributing to the delinquency

of a minor and second degree forgery verdicts weren’t inconsistent

because different evidence supported them); see also People v.

Scearce, 87 P.3d 228, 232 (Colo. App. 2003) (“If the verdicts are

consistent in any view of the evidence, the presumption is that the

jury took that view.”).

¶ 29 In sum, we aren’t convinced that Hagos’s first degree

kidnapping and felony menacing verdicts are inconsistent,

warranting reversal. Therefore, Hagos can’t show that

postconviction appellate counsel’s failure to raise this argument

amounted to ineffective assistance under Strickland.

¶ 30 Hagos also argues that the first degree kidnapping and

conspiracy to commit second degree kidnapping verdicts are

inconsistent. Because he didn’t make this argument in his first

Crim. P. 35(c) motion, postconviction appellate counsel can’t have

been ineffective by not raising it in the appeal of the postconviction

court’s denial of that motion. See People v. Stovall, 2012 COA 7M,

17
¶ 3 (ineffective assistance claims not raised in a Crim. P. 35(c)

motion aren’t properly preserved and can’t be raised for the first

time on appeal).

IV. Proportionality Review

¶ 31 Hagos next contends that the postconviction court erred by

summarily denying his Crim. P. 35(c) motion for an abbreviated and

extended proportionality review of his sentence. Again, we disagree.

¶ 32 As discussed, Crim. P. 35(c)(3)(VII) bars any claim that could

have been presented in a previous appeal or postconviction

proceeding. Because Hagos could have challenged his sentence on

direct appeal or in a previous postconviction motion, Crim. P.

35(c)(3)(VII) bars this claim.

¶ 33 We reject Hagos’s argument that his proportionality review

claim warrants review under Crim. P. 35(c)(3)(VII)(c), which carves

out an exception to Crim. P. 35(c)’s procedural bar for “[a]ny claim

based on a new rule of constitutional law that was previously

unavailable, if that rule should be applied retroactively to cases on

collateral review.” In his request for a proportionality review, Hagos

asserted that his life without parole sentence is grossly

18
disproportionate to his first degree kidnapping conviction under

Wells-Yates v. People, 2019 CO 90M, which the Colorado Supreme

Court announced after the trial court sentenced Hagos. He also

cited People v. Clark, (Colo. App. No. 18CA2293, Aug. 26, 2021) (not

published pursuant to C.A.R. 35(e)), in which a division of this

court conducted an abbreviated proportionality review under Wells-

Yates and concluded that the defendant’s life without parole

sentence for first degree kidnapping raised an inference of gross

disproportionality because, among other reasons, the victim lived.

Id., slip op. at ¶¶ 37-40. But a division of this court has held in a

published opinion that Wells-Yates doesn’t apply retroactively.

People v. McDonald, 2023 COA 23, ¶ 24 (cert. granted Nov. 14,

2023); see id. (“[T]o the extent [Wells-Yates] announced new rules as

suggested by McDonald, those rules are procedural, not

substantive. As a result, the exceptions to Crim. P. 35(c)’s

procedural bars don’t apply to McDonald’s 2020 claims regarding

19
the proportionality of his sentence, and they were properly

denied.”).3

¶ 34 We agree with McDonald’s holding and therefore follow it.

Because Hagos’s motion for a proportionality review is procedurally

barred, the postconviction court didn’t err by summarily denying it.

V. Legality of Hagos’s Sentence

¶ 35 Lastly, Hagos contends that the postconviction court erred by

summarily denying his Crim. P. 35(a) motion to correct an illegal

sentence. We perceive no error.

¶ 36 In his motion, Hagos asserted that Colorado law doesn’t

authorize his life without parole sentence because the erroneous

jury instruction for first degree kidnapping invalidates his

conviction for that offense. But Hagos’s claim isn’t cognizable

under Crim. P. 35(a), which asks only whether a defendant’s

sentence is consistent with the General Assembly’s sentencing

scheme. See People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005);

3 This issue — whether Wells-Yates v. People, 2019 CO 90M,

announced a new, substantive rule of constitutional law that
applies retroactively — is currently pending before the Colorado
Supreme Court in McDonald v. People, No. 23SC381, 2023 WL
8009016 (Colo. Nov. 14, 2023) (unpublished order).
20
Hard, ¶ 46. (Indeed, Hagos concedes that Colorado’s sentencing

statute, § 18-1.3-401, C.R.S. 2024, authorizes a life without parole

sentence upon conviction of a class 1 felony.)

¶ 37 His claim challenges the constitutionality of his conviction,

which instead falls under Crim. P. 35(c)(2)(I). See People v. Dunlap,

222 P.3d 364, 369 (Colo. App. 2009) (“[T]here is a significant

difference between a true illegal sentence claim under Crim. P. 35(a)

that the sentence is inconsistent with the statutory scheme, and the

assertion of a claim that a sentence was imposed in violation of the

constitution, which can involve a claim that the conviction itself is

defective.”) (citations omitted); see also Rockwell, 125 P.3d at 422

(Coats, J., concurring in the judgment) (“[T]he defendant’s challenge

to the factual basis for his offense only secondarily implicates the

legality of his sentence. . . . Were Crim. P. 35(a) to extend so far,

virtually any challenge to a defendant’s conviction could be couched

in terms of its secondary effect on his sentence, obliterating any

distinction between Crim. P. 35(a) and Crim. P. 35(c), and the

separate purposes and limitations of each.”); People v. Collier, 151

P.3d 668, 670 (Colo. App. 2006) (the substance of a postconviction

21
motion determines whether it falls under Crim. P. 35(a) or Crim. P.

35(c)).

¶ 38 Because the division affirmed Hagos’s first degree kidnapping

conviction in Hagos I, the postconviction court properly rejected

Hagos’s attempt to relitigate his conviction. See Crim. P. 35(c)(3)(VI)

(the court must deny any claim that was raised and resolved in a

prior appeal); Dunlap, 222 P.3d at 369 (“Because defendant would

seek to attack his conviction, not just his sentence, we decline to

allow a new appeal, which would effectively open his entire case to

relitigation, contrary to finality principles.”).

VI. Disposition

¶ 39 The postconviction court’s orders are affirmed.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.

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