Peo v. Mendoza

23CA0334 Peo v Mendoza 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0334

City and County of Denver District Court No. 20CR2589

Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Philipp Mendoza,

Defendant-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE YUN

Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Philipp Mendoza appeals the district court’s order denying,

without a hearing, his motion to withdraw his guilty plea under

Crim P. 32(d). We affirm the order.

I. Background

¶ 2 Mendoza shot a man twice in the arm and torso. Some twenty

minutes after the shooting, Mendoza called the police and admitted

to shooting the victim but claimed that he acted in self-defense.

The victim survived after undergoing surgery.

¶ 3 The People charged Mendoza with attempted first degree

murder and first degree assault. Mendoza retained private counsel

and, more than two years after the charges were filed, entered into

a plea agreement. The agreement provided that Mendoza would

plead guilty to an added count of attempt to commit second degree

assault in exchange for dismissal of the charged offenses.

¶ 4 At the providency hearing, the court addressed Mendoza

personally “to make sure you understand what you’re doing today,

[and] make sure you understand the consequences of your

decision.” Mendoza acknowledged the written plea agreement and

confirmed that he had initialed each paragraph and signed the last

page. He said his signature indicated that he had gone through the

2

agreement with this attorney “line for line” and that his attorney

had answered any questions he had. One of the paragraphs that

Mendoza signed stated that

[t]he decision to plead guilty is my decision

and it has been made freely and voluntarily.

There has been no threat, coercion, undue

influence, or force used to make me plead

guilty. I know that I do not have to follow my

lawyer’s advice and that I do not have to plead

guilty. This is my decision to plead guilty.

Finally, Mendoza acknowledged that he understood all of the rights

he was foregoing by pleading guilty, including the right to present

evidence in his defense.

¶ 5 But immediately after the prosecutor set out the factual basis

for the plea — that “[Mendoza] had an altercation with [the victim],

during which [Mendoza] was in possession of a firearm,” and that

“[h]e fired a number of times at [the victim,] causing serious bodily

injury” — the district court judge and Mendoza had the following

colloquy:

THE COURT: And is that what happened, sir?

. . . .

[MENDOZA]: That’s what happened. It’s not

all of it, but it is what happened.

3

THE COURT: All right. Well, if there’s more,

that’s what trials are for. Otherwise, if you tell

me that’s what happened, then I’m going to

accept this plea.

[THE PROSECUTOR]: Judge, I’m — I’m

perfectly comfortable acknowledging there —

the trial would’ve been about self-defense. I

mean, and so I think I understand

Mr. Mendoza’s hesitation there . . . .

. . . .

THE COURT: Well, self-defense is an issue for

the jury. You have the right to present that

defense. And I’m sure you’ve spoken about

this with your attorney, whether they think it’s

applicable or they think — they’ve given you

advice about it. The bottom line is if you’re

telling me you’re guilty, it means I’m going to

find you guilty, and you’re not going to come

back to me later and say I didn’t do it. So, you

know, self-defense is a claim for a jury. . . .

[MENDOZA]: I understand I’m pleading to a

lesser charge, Your Honor, and with the advice

of my attorneys . . . I’m moving forward. I’m

moving forward with a guilty plea. I

understand that.

Mendoza confirmed that he understood that he was “giving up the

right to claim self-defense by pleading guilty.”

¶ 6 At the sentencing hearing two months later, plea counsel

informed the district court that he had presented the facts of the

case, including Mendoza’s claim of self-defense, to mock jurors and

4

“were coming out with about fifty percent” that liked the

self-defense argument and “fifty percent that didn’t.” As such, plea

counsel determined that “it was just simply too risky to take a

fifty-fifty self-defense argument to” trial.

¶ 7 Nevertheless, during allocution, Mendoza had a change of

heart about his decision to plead guilty:

THE COURT: Do you want to take this plea?

This is your last chance.

. . . .

[MENDOZA]: You said, if you’re not guilty . . . .

If you’re not guilty don’t plead guilty in my

court. I’m not guilty, Your Honor.

THE COURT: You told me before that you

were, and you wanted this plea.

[MENDOZA]: I . . . did because — out of

duress.

THE COURT: Do you want to withdraw your

plea?

[MENDOZA]: I would like to withdraw my plea.

The prosecutor asked that Mendoza be required to file a motion to

withdraw his plea, and the court agreed.

¶ 8 Instead of filing the motion, Mendoza’s private attorneys filed a

motion to withdraw as counsel. They claimed that, because

5

Mendoza now wished to withdraw his plea, “the interests of counsel

and client [became] implicitly adverse.” The district court allowed

plea counsel to withdraw, and the public defender took over

representing Mendoza and filed a Rule 32(d) motion to withdraw a

guilty plea.

¶ 9 In the motion, Mendoza contended that his plea was

involuntary and he should be allowed to withdraw it because (1) the

fact that he “has repeatedly and persistently claimed an affirmative

theory of innocence demonstrates that he has not actually accepted

a factual basis required to support the current plea”; (2) “his prior

counsel pressured him to take a plea that he never wanted” by

“falsely advis[ing] him that [the victim] . . . was likely to succumb to

his injuries sustained during this incident,” and if that happened,

“Mendoza would face a capital offense, so it was in his best interest

to enter a plea to avoid that scenario”; and (3) plea counsel

“mishandled his case and negotiations.” The People responded by

arguing that Mendoza did not meet his burden to establish a fair

and just reason to withdraw his plea. They also noted that the case

had been “delayed multiple times to allow for full investigation by

the defense and continuing negotiations,” and during this period,

6

“one of the primary witnesses to the shooting passed away, severely

damaging the People’s case and conferring a tremendous windfall

upon” Mendoza.

¶ 10 The district court denied Mendoza’s motion to withdraw his

plea because of his admissions at the providency hearing and given

“[t]he fact that a, if not the, key prosecution witness has died and is

now unavailable to testify.” The court explained that “but for this

fact” it “would probably allow [Mendoza] to withdraw his plea.” But

it concluded that, under the circumstances, ignoring “Mendoza’s

knowing, intelligent, voluntary plea and his admission of the facts

underlying his plea of guilty would not lead to the ‘fair and just’ end

sought by Crim. P. 32(d).”

¶ 11 Ultimately, the district court sentenced Mendoza to four years

in the custody of the Department of Corrections.

II. Analysis

¶ 12 Mendoza contends that the district court reversibly erred by

denying his Rule 32(d) motion to withdraw his guilty plea.

Specifically, he asserts that the court erred by (1) failing to hold a

hearing on his allegation that plea counsel provided ineffective

assistance by misadvising Mendoza that the shooting could become

7

a capital offense and (2) misapplying the non-exhaustive factors

used to evaluate a Rule 32(d) motion.

1

We perceive no reversible

error.

A. Governing Law and Standard of Review

¶ 13 Crim. P. 32(d) allows a defendant to file a motion to withdraw

a guilty plea before sentence is imposed. Kazadi v. People, 2012 CO

73, ¶ 14. However, to warrant such a withdrawal, a defendant has

the burden of establishing a “fair and just reason” for it. Id.

(quoting People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988)). Fair

and just reasons can include

instances where a defendant was surprised or

influenced into a plea of guilty to which the

person had a defense; where a plea of guilty

was entered by mistake or under a

misconception of the nature of the charge;

where such plea was entered through fear,

fraud, or official misrepresentation; where it

was made involuntarily; or where ineffective

assistance of counsel occurred in the process.

Id.

1

On appeal, Mendoza does not address the other assertions in his

Crim. P. 32(d) motion, including that plea counsel “mishandled his

case and negotiations.” Accordingly, they are deemed abandoned

and will not be addressed here. See People v. Brooks, 250 P.3d 771,

772 (Colo. App. 2010).

8

¶ 14 When a Rule 32(d) motion rests on a claim of ineffective

assistance of counsel, a defendant has the burden of establishing

that (1) his counsel performed deficiently and (2) a reasonable

probability exists that, but for counsel’s deficient performance, he

would have pleaded not guilty and insisted on going to trial. See

People v. Corson, 2016 CO 33, ¶ 35 (citing Hill v. Lockhart, 474 U.S.

52, 60 (1985)); People v. Madera, 112 P.3d 688, 692 (Colo. 2005)

(concluding that a Rule 32(d) motion premised on ineffective

assistance of counsel must meet the standards both for ineffective

assistance of counsel and for withdrawal of a guilty plea). Failure to

prove either prong is fatal to an ineffective assistance of counsel

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

Corson, ¶ 35 (if a defendant has failed to show prejudice, a court

may resolve an ineffective assistance of counsel claim on that basis

and need not address whether counsel’s performance was deficient).

¶ 15 The district court has broad discretion to determine whether

the defendant has established a fair and just reason to withdraw a

guilty plea. Crumb v. People, 230 P.3d 726, 730 (Colo. 2010).

Therefore, we will not reverse the court’s denial of a Rule 32(d)

9

motion unless the court abused its discretion.

2

Kazadi, ¶ 15. A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it applies an incorrect legal

standard. People v. Rodriguez, 2022 COA 98, ¶ 12.

B. Ineffective Assistance of Counsel

¶ 16 In his Rule 32(d) motion, Mendoza alleged that his plea

counsel “falsely advised him that [the victim] . . . was likely to

succumb to his injuries sustained during this incident,” and if that

happened, “Mendoza would face a capital offense, so it was in his

best interest to enter a plea to avoid that scenario.” (Emphasis

added.) Mendoza contends that, because the death penalty was

abolished in Colorado shortly after this case was filed, he

sufficiently alleged ineffective assistance of counsel and the district

court erred by failing to hold an evidentiary hearing on it. The

People concede that “[t]here is no suggestion in the record that this

2

Mendoza suggests that, under People v. Lopez, 12 P.3d 869 (Colo.

App. 2000), our review should be de novo. But the division in Lopez

reviewed for an abuse of discretion. Id. at 872 (“[W]e conclude that

the trial court did not abuse its discretion . . . .”).

10

case would ever be a death penalty case.”

3

We will therefore

assume that Mendoza adequately alleged deficient performance. We

turn then to whether Mendoza alleged sufficient facts to show that

he was prejudiced by the deficient performance.

¶ 17 Even assuming, as Mendoza argues, that Crim. P. 35(c)

standards regarding when a court may deny relief without a hearing

apply to Rule 32(d) motions, a court may summarily deny a motion

alleging ineffective assistance if the defendant’s allegations are

conclusory, vague, or lacking in detail. People v. Castillo, 2022 COA

20, ¶ 14; see also People v. Lopez, 12 P.3d 869, 871-72 (Colo. App.

2000) (conclusory allegations were not sufficient to warrant a

hearing on a Rule 32(d) claim); People v. DiGuglielmo, 33 P.3d 1248,

1250 (Colo. App. 2001) (district court properly denied relief without

a hearing where the defendant failed to assert facts demonstrating a

fair and just reason for withdrawal).

3

The People submit that Mendoza “never alleged that his attorney

told him he could face the death penalty” before the district court

and therefore we should not consider the argument. But we agree

with Mendoza that he raised this contention by using the term

“capital offense” in his motion. See People v. Smith, 2023 CO 40,

¶ 23 (“[T]he phrase ‘capital offenses’ plainly and unambiguously

refers to offenses for which the General Assembly has statutorily

authorized the imposition of the death penalty.”).

11

¶ 18 In his Rule 32(d) motion, Mendoza asserted that his plea was

involuntary because “he suffered undue pressure from his attorneys

to plead, [and] . . . they inaccurately advised him about the

likelihood of being charged with a capital offense.” But nowhere did

he allege that but for his attorney’s misstatement about the

potential nature of the offense he would have pleaded not guilty and

proceeded to trial. See Corson, ¶ 35. He did not allege that the

potential for the death penalty versus the potential for a sentence to

life in prison without the chance of parole (both contingent on the

victim passing away) affected his decision to plead guilty. See

§ 18-1.3-401(1)(a)(V)(A.1), (V.5)(A), C.R.S. 2023. Nor did he allege

that his counsel’s suggestion that the victim was “likely to succumb

to his injuries” from the shooting affected his decision to plead

guilty over two years after the charges were filed. See People v.

Lopez, 2015 COA 45, ¶ 12 (allegations of ineffective assistance of

counsel that lack sufficient specificity are properly rejected);

People v. Villanueva, 2016 COA 70, ¶ 68 (a conclusory allegation of

prejudice is insufficient under Strickland).

¶ 19 Instead, Mendoza suggested that plea counsel’s reference to a

capital offense contributed to the “pressure” for him to plead guilty.

12

But that is not the same as alleging that but for counsel’s statement

he would have gone to trial on two greater charges — attempted

first degree murder and first degree assault — that would have

exposed him to significantly increased penalties. See Corson,

¶¶ 42-43 (defendant did not demonstrate a reasonable probability

that he would have rejected plea agreement but for counsel’s

deficient advice where defendant received significant benefits from

the agreement). In any event, pressure does not necessarily

invalidate a guilty plea. See, e.g., People v. McCormick, 881 P.2d

423, 427 (Colo. App. 1994) (explaining that the pressure to accept

the certainty of a lesser penalty rather than face the possibility of a

lengthy sentence does not render a guilty plea invalid). But see

Brady v. United States, 397 U.S. 742, 750 (1970) (A guilty plea is

involuntary and therefore invalid if it is obtained by “actual or

threatened physical harm or by mental coercion overbearing the will

of the defendant.”). And Mendoza did not allege in his motion that

plea counsel threatened him or took any action that overbore his

will. See Lopez, ¶ 12; Villanueva, ¶ 68.

¶ 20 As such, we conclude that Mendoza did not sufficiently allege

in his Rule 32(d) motion that he was prejudiced by plea counsel’s

13

performance. Thus, the district court was not required to hold an

evidentiary hearing. Castillo, ¶ 14.

C. Crim P. 32(d) Factors

¶ 21 Mendoza also contends that the district court misapplied the

non-exhaustive factors used to evaluate a Rule 32(d) motion by

considering prejudice to the prosecution — the death of a key

witness — that existed before the plea agreement was executed and

by failing to address whether his motion was prompt. We are not

persuaded.

¶ 22 In determining whether a defendant has met the burden of

establishing a fair and just reason to withdraw a guilty plea, a

district court should consider a non-exhaustive list of factors

including whether (1) the defendant promptly moved to withdraw

the guilty plea; (2) the prosecution would be prejudiced by the

withdrawal of the guilty plea; and (3) the defendant has shown that

justice will be subverted if the motion is denied. See Crumb,

230 P.3d at 730.

¶ 23 Even if the district court erred by considering prejudice that

occurred before the plea agreement and by failing to expressly

consider whether the motion was prompt, Mendoza did not meet his

14

burden to show — given, as we discussed above, that his allegation

of ineffective assistance of counsel was insufficient — that justice

would be subverted were his motion denied. Our supreme court

and numerous divisions of this court have emphasized that there

must be some showing that justice will be subverted “[t]o warrant

the exercise of discretion favorable to a defendant concerning a

change of plea.” Maes v. People, 155 Colo. 570, 575, 396 P.2d 457,

459 (1964); see, e.g., Kazadi, ¶ 14; People v. Boling, 261 P.3d 503,

504 (Colo. App. 2011); People v Weed, 830 P.2d 1095, 1098 (Colo.

App. 1991).

¶ 24 Accordingly, the district court did not abuse its discretion by

ultimately concluding that, given “Mendoza’s knowing, intelligent,

voluntary plea and his admission of the facts underlying his plea of

guilty,” allowing Mendoza to withdraw his plea “would not lead to

the ‘fair and just’ end sought by Crim. P. 32(d).”

III. Disposition

¶ 25 The order is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.