Peo v. Manzanares

23CA1383 Peo v Manzanares 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1383
Pueblo County District Court No. 05CR928
Honorable Amiel Markenson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Duane Manzanares,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Duane Manzanares, appeals the postconviction

court’s order denying his motion for relief under Crim. P. 35(c). We

affirm.

I. Background

¶2 According to the evidence presented at trial, Manzanares took

all of his possessions and moved out of the Pueblo home he shared

with his wife, Erica Manzanares,1 and her children. Several days

later, at about 3:30 a.m., Manzanares and his brother-in-law,

“Bam,” broke through the home’s front door. The two men then

forced open the locked door to Erica’s bedroom, where Erica and

her male friend, David Bryant, were sleeping. Manzanares pulled

out a gun, and Erica exclaimed something like “No, Duane, don’t do

it.” Manzanares fired two gunshots, killing Erica and seriously

injuring Bryant. Manzanares and Bam fled.

¶3 Manzanares was arrested seven weeks later in a Denver hotel.

Police found a document describing the heat of passion defense

among his possessions.

1 Because Erica shares a last name with Manzanares, we refer to

her as Erica to avoid confusion. We mean no disrespect in doing
so.

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¶4 The People charged Manzanares with one count of first degree

murder – after deliberation and one count of first degree assault. At

trial, defense counsel Michael Emmons’s opening statement focused

on a general denial defense, alerting the jury to a lack of either

physical evidence or credible testimony placing Manzanares at the

house that night. The prosecution’s case included testimony from

eyewitness Bam; three teenaged earwitnesses who were in the home

and testified that they heard “No, Duane . . .”; and Manzanares’s

cellmate, to whom Manzanares confessed to the shootings. In

closing, Emmons attempted to poke holes in the prosecution’s case

and argued that Bam had been the gunman.

¶5 The jury was instructed on the lesser included offense of

second degree murder in addition to the charged crimes, but it

found Manzanares guilty as charged. The trial court sentenced him

to consecutive terms of life without the possibility of parole and

thirty years in the custody of the Department of Corrections (DOC).

A division of this court affirmed the convictions on direct appeal.

See People v. Manzanares, slip op. at 5, (Colo. App. No. 08CA1427,

May 19, 2011) (not published pursuant to C.A.R. 35(f)) (concluding

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that “there was overwhelming evidence of Manzanares’s guilt”). The

convictions became final in December 2011.

II. Postconviction Proceedings

¶6 In November 2019, Manzanares filed a pro se Crim. P. 35(c)

motion. The district court appointed postconviction counsel, who

filed a supplemental motion arguing that Emmons had provided

ineffective assistance by (1) asserting a general denial/alternate

suspect theory of defense instead of pursuing a heat of passion

mitigator to the lesser included offense of second degree murder

and (2) advising Manzanares to decline the prosecution’s offer of a

guilty plea in exchange for a twenty-year prison sentence. The

court ruled that the motion was untimely as to Manzanares’s first

degree assault conviction, denied the claims set forth in the pro se

motion, and ordered the prosecution to respond to the two

ineffective assistance claims raised by postconviction counsel.

¶7 The district court held an evidentiary hearing on those two

claims. It heard testimony from Emmons, Manzanares, three of

Manzanares’s current and prior relatives, and an expert in criminal

defense. Among many other factual findings, the court found that

• Emmons testified credibly.

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• Emmons spoke with Manzanares before trial about the

heat of passion document Manzanares had when he was

arrested.

• Emmons made a strategic decision not to pursue a heat

of passion mitigation defense based on various

weaknesses in the prosecution’s evidence and to avoid

conceding that Manzanares was in the bedroom when

Erica was murdered.

• Before trial, the prosecution offered a plea deal in

exchange for a sentence of between sixteen and forty-

eight years in the DOC, but Manzanares did not accept it.

• Emmons did not remember a twenty-year plea offer,

there was no physical evidence of such an offer, and the

witnesses who testified that there had been a twenty-year

offer were not credible.

¶8 The district court ultimately found that Manzanares had failed

to establish a right to postconviction relief and denied his Crim. P.

35(c) motion. On appeal, Manzanares generally challenges the

court’s denial of his ineffective assistance claims. We perceive no

error.

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III. Standard of Review and Applicable Law

¶9 In a Crim. P. 35(c) proceeding, we presume the validity of a

conviction, and the defendant bears the burden of proving, by a

preponderance of the evidence, that he is entitled to postconviction

relief. Dunlap v. People, 173 P.3d 1054, 1061 (Colo. 2007). When a

district court’s ruling follows an evidentiary hearing, we review the

denial of a Crim. P. 35(c) motion as a mixed question of fact and

law. People v. Corson, 2016 CO 33, ¶ 25.

¶ 10 We defer to the court’s assessment of the weight and

credibility of witness testimony. Dunlap, 173 P.3d at 1061-62; see

also Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567 (Colo.

1991) (“It is . . . the province of the court, as the trier of fact, to

determine the credibility of the witnesses and the weight to be given

their testimony.”). And we defer to the court’s factual findings

unless “they are so clearly erroneous as to find no support in the

record.” People v. Beauvais, 2017 CO 34, ¶ 22. But we review de

novo the court’s ultimate legal conclusions. Dunlap, 173 P.3d at

1063.

¶ 11 To establish ineffective assistance of counsel, a defendant

must satisfy the two-prong test set forth in Strickland v.

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Washington, 466 U.S. 668, 687 (1984). First, the defendant must

show that counsel’s acts or omissions fell outside the wide range of

professionally competent assistance. Id. at 687-89. Judicial

scrutiny is highly deferential on this prong — we must “evaluate

particular acts and omissions from counsel’s perspective at the

time.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). Second, a

defendant must show that they suffered prejudice from counsel’s

deficient performance, such that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694.

IV. Discussion

A. Assault Conviction

¶ 12 First, we agree with the district court that Manzanares’s

motion is untimely as to his first degree assault conviction. Section

16-5-402(1), C.R.S. 2024, provides that postconviction challenges to

non-class 1 felony convictions must be brought within three years

of the conviction becoming final. Manzanares did not file his

motion until almost eight years after his convictions became final —

nearly five years too late to challenge his class 3 felony assault

conviction. Accordingly, we address his claims only as to his first

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degree murder conviction. See People v. Stovall, 2012 COA 7M,

¶ 37.

B. Murder Conviction

¶ 13 Turning to Manzanares’s challenge to his murder conviction,

we agree with the district court that Manzanares failed to prove his

two ineffective assistance claims. We discuss each claim in turn.

1. Choice of Defense

¶ 14 Heat of passion is a partial defense that mitigates second

degree murder from a class 2 felony to a class 3 felony.

§ 18-3-103(3), C.R.S. 2024. This mitigating circumstance occurs if

the act causing the death is “performed upon a sudden heat of

passion caused by a serious and highly provoking act of the

intended victim, affecting the defendant sufficiently to excite an

irresistible passion in a reasonable person.” § 18-3-103(3)(b); see

also § 18-3-202(2)(a), C.R.S. 2024.

¶ 15 The district court found, with record support, that Emmons

reasonably chose a general denial/alternate suspect defense after

looking at all the evidence, including that (1) the prosecution had

no physical evidence pointing to Manzanares as the shooter; (2) the

only eyewitness, Bam, “had credibility issues”; and (3) the

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prosecution could have used Manzanares’s pre-arrest possession of

heat of passion research to undermine that mitigator. The court

further observed that to concede culpability for the shootings in

pursuit of a heat of passion mitigator — exposing Manzanares to an

aggregate sentence of twelve-and-a-half to forty years on both

crimes — offered a negligible benefit and significant risk relative to

the rejected plea offer of sixteen to forty-eight years. The court

ultimately concluded that Emmons’s strategic choice of defense did

not amount to deficient representation. We agree.

¶ 16 The defendant’s burden is particularly high when defense

strategy is questioned. If there is a reasonable basis for defense

counsel’s strategic decision, “the decision enjoys a strong

presumption of correctness.” Dunlap, 173 P.3d at 1075. Indeed,

“strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690 (emphasis added).

¶ 17 For the reasons articulated by the district court, we conclude

that there was a reasonable basis for Emmons’s choice of defense.

Moreover, we note that a heat of passion mitigator is inapplicable

when, as could have been demonstrated in this case, a defendant

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“intentionally put himself in the provoking situation.” See People v.

Valdez, 183 P.3d 720, 723 (Colo. App. 2008). Because Manzanares

did not establish that Emmons’s defense strategy fell outside the

professionally competent range, we conclude that the district court

properly denied this ineffective assistance claim.

2. Plea Advice

¶ 18 The district court found, with record support, that (1) Emmons

did not remember a twenty-year plea offer; (2) there was no physical

evidence of such an offer; (3) the witnesses who testified that there

had been a twenty-year offer were not credible; and, ultimately,

(4) Manzanares had failed to demonstrate that a twenty-year plea

offer ever existed. We defer to the district court’s factual findings.

See Dunlap, 173 P.3d at 1061-62; Beauvais, ¶ 22. Because

Manzanares did not establish the existence of a twenty-year plea

offer — a factual ground for his claim of deficient plea advice

regarding such an offer — his ineffective plea advice claim cannot

succeed. We conclude that the district court properly denied this

claim.

V. Disposition

¶ 19 The order is affirmed.

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JUDGE PAWAR and JUDGE SCHUTZ concur.

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