Peo v. McMillian

23CA0747 Peo v McMillian 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0747
City and County of Broomfield District Court No. 18CR116
Honorable Sharon Holbrook, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donald Lee McMillian,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Donald Lee McMillian appeals the postconviction court’s order

denying his Crim. P. 35(c) claims without an evidentiary hearing.

We affirm.

I. Background

A. The Charges, the Plea Agreement, and the Sentence

¶2 A man attacked the victim, a seventy-eight-year-old woman, in

a public park. He threatened her with a knife, stabbed her, and

attempted to sexually assault her. The man ran off after a

bystander yelled at him. Minutes after the incident, police officers

detained McMillian, and less than an hour later, the bystander

identified him as the attacker.

¶3 The prosecution charged McMillian with two counts of first

degree kidnapping, three counts of sexual assault of an at-risk

person, one count of first degree assault, and one count of

menacing.

¶4 McMillian asked his counsel “to seek out an agreement that

we could make with the district attorney.” Defense counsel did so.

McMillian and the prosecution entered into a plea agreement under

which McMillian pleaded guilty to three added counts — first degree

assault on an at-risk person with serious bodily injury and use of a

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deadly weapon, second degree kidnapping by seizing the victim with

a real or simulated weapon, and attempted sexual assault by

overcoming the victim’s will. He stipulated to a fifty-two-year prison

sentence, and the prosecution consented to dismiss the original

counts.

¶5 At the providency hearing, the court confirmed that McMillian

and his counsel understood and agreed to the plea. McMillian

affirmed that he had read the Crim. P. 11 advisement, he had been

given enough time to discuss it with his attorney, and his attorney

had answered his questions. In addition, McMillian confirmed that

he understood the potential penalties if he were convicted on the

original charges and the sentence to which he was stipulating. The

providency court accepted McMillian’s pleas, finding that they were

knowingly, voluntarily, and intelligently given.

¶6 At the sentencing hearing, defense counsel informed the court

that McMillian understood he would be required to serve

seventy-five percent of his sentence before he would be eligible for

parole, meaning that, “given [McMillian’s] age and general health

and the health of people in the Department of Corrections, it would

most likely be a life sentence.” McMillian acknowledged that he

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would die in prison, saying, “I don’t think I have 52 years in me.” In

addition, defense counsel requested that the court defer its decision

on whether McMillian should be designated a sexually violent

predator (SVP) to allow counsel time to investigate McMillian’s

intellectual functioning. The court granted defense counsel

fourteen days to file a motion on the SVP designation.

¶7 The court sentenced McMillian to fifty-two years in the custody

of the Department of Corrections, as stipulated. In concluding that

the sentence was appropriate, the court cited the crime’s violent

nature and McMillian’s lack of credibility in claiming he had

“blacked out” from alcohol use at the time of the offense.

¶8 At the later SVP designation hearing, McMillian’s counsel

argued that McMillian had developmental disabilities that affected

his “cognizant abilities” and, therefore, he could not be deemed an

SVP. The court found that the evidence did not establish that

McMillian was developmentally disabled, and it designated him an

SVP.

B. The Postconviction Proceedings

¶9 McMillian filed a pro se motion for postconviction relief under

Crim. P. 35(c), asserting that he would not have pleaded guilty if he

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had known he would have to “do that much time.” The court

appointed counsel, who filed Crim. P. 35(c) petitions challenging the

constitutionality of McMillian’s guilty plea and his competency.

¶ 10 McMillian’s counsel argued that McMillian had cognitive and

intellectual delays and struggled with reading; he had not

voluntarily made the guilty plea because he had not fully

understood the potential penalties, the constitutional rights he was

waiving, and the elements of the original charges; and he was

incompetent at the time he pleaded guilty. In addition, McMillian’s

counsel asserted that plea counsel was ineffective.

¶ 11 The postconviction court denied McMillian’s Crim. P. 35(c)

motion and his counsel’s petitions without a hearing. The

postconviction court determined that

• The record belied McMillian’s assertion that, “due to his

low intellectual functioning, he could not adequately

consult with counsel and assist in his defense.”

• McMillian fully understood the guilty plea at the time.

• McMillian’s claims — that his low intellectual functioning

prevented him from understanding the advisements of

the rights he was waiving by pleading guilty, he did not

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understand the elements of the crimes to which he

pleaded guilty, and he did not have a rational and factual

understanding of the criminal proceedings — “largely

duplicat[ed]” his previous claims that he could neither

assist in his defense nor understand the plea agreement,

and he did not overcome the facts in the record.

• McMillian failed to establish that his plea counsel

provided ineffective assistance.

II. Analysis

A. Standard of Review

¶ 12 “We review de novo a district court’s decision to deny a Crim.

P. 35(c) motion without a hearing.” People v. Higgins, 2017 COA 57,

¶ 11, 413 P.3d 298, 300. However, there is a tension “between de

novo review and the supreme court rule authorizing postconviction

courts to make some findings of fact without a hearing in deciding

Crim. P. 35(c) motions.” People v. McGlaughlin, 2018 COA 114,

¶ 26, 428 P.3d 691, 697. “To give effect to the supreme court’s

default rule, deference to a postconviction court’s factual finding by

application of the clearly erroneous standard is warranted only

when the factfinding was made using accepted procedures and

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when the record clearly establishes the fact.” Id. at ¶ 27, 428 P.3d

at 697.

B. The Validity of McMillian’s Guilty Plea

1. Controlling Law

¶ 13 A postconviction court may deny a Crim. P. 35(c) motion

without a hearing “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.”

People v. Delgado, 2019 COA 55, ¶ 8, 442 P.3d 1021, 1024. “A

defendant need not set forth the evidentiary support for his

allegations in his initial Crim. P. 35 motion; instead, a defendant

need only assert facts that if true would provide a basis for relief

under Crim. P. 35.” White v. Denver Dist. Ct., 766 P.2d 632, 635

(Colo. 1988).

¶ 14 In addition, in determining whether a defendant was mentally

competent to enter into a plea agreement, the court must

“distinguish between mental capacity, for purposes of assessing a

defendant’s competency to enter a guilty plea, and mental state, for

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purposes of assessing the knowing and voluntary nature of the

plea.” People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).

The focus of a competency inquiry is the
defendant’s mental capacity; the question is
whether he has the ability to understand the
proceedings. The purpose of the “knowing and
voluntary” inquiry, by contrast, is to determine
whether the defendant actually does
understand the significance and consequences
of a particular decision and whether the
decision is uncoerced.

Id. (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)).

¶ 15 A guilty plea is invalid if the defendant was mentally

incompetent at the time of the plea. Von Pickrell v. People, 431 P.2d

1003, 1005 (Colo. 1967). “[T]he law presumes that a defendant is

competent; thus, the burden to prove incompetency rests with the

accused.” People v. Karpierz, 165 P.3d 753, 758 (Colo. App. 2006).

2. Additional Facts

¶ 16 Following the providency hearing, Terry L. Taylor, a Sex

Offense Management Board Full Operating Level Evaluator,

conducted a presentence psychosexual evaluation of McMillian.

Taylor found that McMillian’s vocabulary and verbal abstract

reasoning were in the “Extremely Low” range and that his “abstract

reasoning was significantly higher than his vocabulary, which could

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indicate a learning disorder, lack of motivation, environmental

deprivation, or other factors that could impede his learning or

remembering.” Taylor found that McMillian was cognitively,

emotionally, and socially underdeveloped, and that he “endorsed

items consistent with Antisocial, Schizoid, and Obsessive

Compulsive personality features.” She concluded, however, that he

met the criteria for an SVP.

¶ 17 After McMillian and his postconviction counsel filed the Crim.

P. 35(c) motion and petitions, counsel engaged Valerie Sims, Psy.D.,

and Kendra Sherwood, Ph.D., to conduct a full neuropsychological

evaluation of McMillian. Drs. Sims and Sherwood opined that

McMillian’s intellectual functioning was in the low average range,

and that his reading and writing abilities were in the extremely low

range. Drs. Sims and Sherwood said he had impaired central

auditory processing, which would affect his ability to process one

idea when another is presented. They “highly recommended that

[McMillian] be asked to explain concepts back to the reader to

ensure accurate comprehension.”

¶ 18 Drs. Sims and Sherwood concluded that, because of

McMillian’s low reading level, he likely would not comprehend

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complex legal materials, such as legal documents, and may

inaccurately suggest that he understands what he has read.

Further, they said that he may struggle to comprehend complex

materials even if they are read aloud to him.

3. McMillian’s Mental Competency

¶ 19 McMillian contends on appeal that the postconviction court

erred by finding that he was competent at the time he pleaded

guilty because his low intellectual functioning affected his ability to

understand the terms of the plea agreement. McMillian’s counsel

asserted that Drs. Sims and Sherwood’s evaluation “brought to light

significant concerns about [McMillian’s] intellectual functioning.”

(Emphasis added.)

¶ 20 As noted above, Taylor found no indication that McMillian was

developmentally disabled or mentally incompetent. Similarly, Drs.

Sims and Sherwood did not opine that McMillian was incompetent.

Rather, they concluded that McMillian “presented with two learning

disorders, including significant deficits in his abilities to read and

write.” Those learning disorders did not establish that McMillian

was mentally incompetent and, therefore, did not establish that he

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lacked the ability to understand the proceedings at the providency

hearing. See Venzor, 121 P.3d at 262.

¶ 21 In sum, the court did not err because McMillian’s allegations,

even if true, did not provide a basis for relief.

4. McMillian’s Ability to Voluntarily, Knowingly, and Intelligently
Enter into the Guilty Plea

¶ 22 McMillian contends that the postconviction court erred by

concluding, without a hearing, that he made his guilty plea

knowingly, intelligently, and voluntarily because of “factual issues

over the extent of his low intellectual functioning.” Further,

McMillian argues that the court’s findings were unreliable because

they “were made without the witnesses’ assertions being subject to

the crucible of cross[-]examination.”

¶ 23 The postconviction court considered the reports that

McMillian’s counsel submitted in determining that McMillian’s low

intellectual functioning did not prevent him from knowingly,

voluntarily, and intelligently negotiating and entering into a plea

“that was favorable to him and limited his liability at trial.” The

court noted that it had “a comprehensive review of [McMillian’s]

history, status, health[,] and mental condition,” as well as

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information regarding McMillian’s “social information, his education

and past employment, his substance abuse history, and both his

physical and psychological condition.” After considering Drs. Sims

and Sherwood’s opinions, the court concluded that the facts in the

record clearly established that McMillian’s low intellectual

functioning did not support his argument that his plea agreement

should be set aside.

¶ 24 McMillian asserts that the postconviction court’s findings are

unreliable because the court did not grant McMillian’s lawyer the

opportunity to cross-examine the witnesses. The test for

determining whether, without a hearing, the postconviction court

erred by determining that a defendant knowingly, intelligently, and

voluntarily entered into a guilty plea requires us to consider

whether “the motion, files, and record clearly establish[ed] that the

defendant [was] not entitled to relief; . . . the allegations, even if

true, d[id] [not] provide a basis for relief; or . . . the claims [were]

bare and conclusory in nature and lack[ed] supporting factual

allegations.” Delgado, ¶ 8, 442 P.3d at 1024. The postconviction

court acknowledged that McMillian had low intellectual functioning

but nonetheless determined that the record clearly established that

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McMillian’s level of intellectual functioning did not impact his

mental capacity or his ability to knowingly, intelligently, and

voluntarily enter into the plea agreement.

¶ 25 The only words that McMillian spoke during the providency

hearing to confirm that he understood the plea agreement were

“Yes,” “No,” and “Guilty.” However, there is no evidence that

anyone influenced McMillian’s answers to the court’s questions at

the providency hearing. More significantly, the providency court

asked McMillian open-ended questions and gave him the

opportunity to speak up if he did not understand the information

provided to him about the plea agreement. The fact that the

providency court did not ask McMillian to repeat every term of the

guilty plea to confirm he understood it does not mean that

McMillian did not comprehend the terms of the plea agreement.

Because McMillian’s statements at the sentencing hearing, noted

above, demonstrated his understanding of the length of the

stipulated sentence, we disagree with McMillian that the brevity of

his responses to the providency court’s questions is a sufficient

basis for invalidating his guilty plea.

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¶ 26 Thus, the postconviction court did not err by denying

McMillian a hearing on his challenge to his guilty plea.

C. The Effectiveness of Plea Counsel

1. Controlling Law

¶ 27 A postconviction court may deny, without an evidentiary

hearing, a Crim. P. 35(c) claim that counsel was ineffective “if the

record directly refutes the defendant’s claims or if the motion, files,

and existing record clearly establish that the defendant’s

allegations, even if proven true, would fail to satisfy one or the other

prong” of Strickland v. Washington, 466 U.S. 668 (1984). People v.

Phipps, 2016 COA 190M, ¶ 19, 411 P.3d 1157, 1162. “Bare and

conclusory allegations are insufficient to entitle a defendant to an

evidentiary hearing on his postconviction motion.” Id. at ¶ 18, 411

P.3d at 1162.

¶ 28 “A defendant’s right in a criminal proceeding to receive the

reasonably effective assistance of an attorney acting as his diligent

and conscientious advocate is guaranteed by the United States and

Colorado Constitutions.” Davis v. People, 871 P.2d 769, 772 (Colo.

1994). A defendant’s conviction must be reversed based on the

ineffectiveness of counsel if the defendant meets his burden of

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showing that “counsel’s performance was deficient” and “the

deficient performance prejudiced the defense.” Strickland, 466 U.S.

at 687. The two-part Strickland test “applies to challenges to guilty

pleas based on ineffective assistance of counsel.” Hill v. Lockhart,

474 U.S. 52, 58 (1985).

¶ 29 Strickland’s first prong is the same whether a defendant

challenges his guilty plea or presents other arguments regarding

the ineffectiveness of counsel. Hill, 474 U.S. at 58-59. The

defendant must show “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

¶ 30 In challenges to guilty pleas based on the alleged

ineffectiveness of counsel, Strickland’s “prejudice” prong focuses on

“whether counsel’s constitutionally ineffective performance affected

the outcome of the plea process.” Hill, 474 U.S. at 59. Thus, to

satisfy the “prejudice” requirement in such cases, “the defendant

must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Id. Further, the defendant “must

convince the court that a decision to reject the plea bargain would

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have been rational under the circumstances.” Padilla v. Kentucky,

559 U.S. 356, 372 (2010).

¶ 31 “Some objective evidence must corroborate the defendant’s

testimony that he would have made a different decision about the

plea if he had been properly advised.” People v. Sifuentes, 2017

COA 48M, ¶ 20, 410 P.3d 730, 736. The Sifuentes division

described different types of such objective evidence — the strength

of the prosecution’s case, the plea deal’s attractiveness, and the

risks of going to trial. Id. at ¶¶ 21-22, 410 P.3d at 736.

2. Deficient Performance

¶ 32 As noted above, McMillian contends that his plea counsel’s

performance was deficient because counsel failed to thoroughly

investigate McMillian’s competency and mental health, consult an

expert, raise competency as an issue, and investigate the charges

before advising McMillian to accept the plea offer. In addition,

McMillian alleges that plea counsel failed to obtain the records

necessary to investigate McMillian’s mental health and

developmental history. Indeed, the record does not indicate that

plea counsel arranged for an independent professional to evaluate

McMillian for competency before he entered his guilty plea.

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McMillian argues that the court would not have accepted the guilty

plea if plea counsel had challenged his competency through the

results of such an evaluation.

¶ 33 The postconviction court, however, found that the record

showed that McMillian “brought the plea bargain to the prosecution

because, although it was a long sentence, it was favorable when

compared with the alternative sentence that could have resulted

from conviction at trial.” It said that McMillian failed to sufficiently

establish that his counsel’s performance was deficient, noting that

counsel “sufficiently litigated [McMillian’s] case by having his

conditions assessed and addressing them in full” and concluding

that counsel’s “performance was well within the range of reasonable

competence demanded of attorneys in criminal cases.”

¶ 34 The record does not support the postconviction court’s finding

that plea counsel had McMillian’s intellectual functioning assessed

and fully addressed the issue. However, we agree with the

postconviction court that McMillian’s deficiency claim is vague,

conclusory, and lacks supporting factual allegations. For example,

McMillian fails to indicate what additional information an

investigation into his competency would have revealed or the

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specific information that plea counsel could have presented to the

court to establish that McMillian was incompetent to enter into the

plea agreement. In a case with analogous facts, a division of this

court held that plea counsel was not deficient by not investigating

whether the defendant’s child died in utero, despite evidence

showing the child was born alive, because “the mere possibility that

additional investigation would have revealed useful information

does not establish ineffective assistance.” People v. Pendleton, 2015

COA 154, ¶ 34, 374 P.3d 509, 516. “Such conclusory allegations

are insufficient to demonstrate that [the defendant] may be entitled

to postconviction relief and that the record might contain specific

facts that would substantiate his claim.” People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007).

¶ 35 For these reasons, McMillian failed to meet his burden of

establishing his claim under Strickland’s deficient performance

prong.

3. Prejudice

¶ 36 McMillian contends that plea counsel’s failure to investigate

competency, raise competency, and investigate the case

demonstrates “a reasonable probability that, but for counsel’s

17
errors, [McMillian] would not have pleaded guilty and would have

insisted on going to trial.” (quoting Hill, 474 U.S. at 59). The

record undercuts this argument, however.

¶ 37 McMillian argues that the second Sifuentes factor — the plea

offer’s attractiveness — provides objective evidence that he could

have rationally chosen to proceed to trial instead of stipulating to a

fifty-two-year sentence. He asserts that the result under the

worst-case scenario at trial would have been no worse than the

result under the plea agreement.

¶ 38 As McMillian acknowledges in his opening brief, the

worst-case scenario that McMillian faced if convicted on all counts

was a life sentence without parole on the first degree kidnapping

charge and lengthy consecutive sentences on the first degree

assault and the sexual assault counts. McMillian argues that his

determinate fifty-two-year sentence is effectively the same sentence

he would have received if a jury had convicted him on the original

charges — a life sentence. For this reason, McMillian contends that

the plea deal was not attractive and that his risk of going to trial

was low. He asserts this is objective evidence that it would have

18
been rational for him to reject the guilty plea if his plea counsel had

properly advised him. See Sifuentes, ¶¶ 20-21, 410 P.3d at 736.

¶ 39 For three reasons, the record does not support McMillian’s

assertion that there was a reasonable probability that, but for plea

counsel’s allegedly deficient performance, he would have insisted on

going to trial. First, McMillian himself initiated the plea

negotiations when he asked his counsel “to seek out an agreement”

with the prosecution. Second, the prosecution’s case was strong.

At least two reliable witnesses could have testified at trial — the

victim and the bystander who identified McMillian as the attacker.

Third, contrary to McMillian’s assertion, “the end result under the

worst[-]case scenario at trial” was indeed worse than the sentence

to which he stipulated. McMillian acknowledges that, if a jury

convicted him on all seven counts, he would have been sentenced to

life without parole, followed by lengthy consecutive sentences on the

sexual assault and first degree assault counts. By pleading guilty,

McMillian received a determinate fifty-two-year sentence with the

possibility of parole.

¶ 40 Rejecting the plea agreement would not have been rational

under the circumstances. Therefore, the postconviction court did

19
not err by denying McMillian’s prejudice argument without a

hearing.

¶ 41 (In addition, we note that, to support his argument under

Strickland’s prejudice prong, McMillian’s counsel attached a U.S.

Census Bureau publication regarding life expectancy in the United

States to the opening brief. The publication does not appear in the

record, however. Similarly, in their answer brief, the People

referenced a website that also does not appear in the record — the

Colorado Department of Corrections Offender Search site.

McMillian also mentions this site in his opening brief. We will not

consider the publication or the website, however, because they were

not presented to the postconviction court. We remind counsel that

“[w]e are limited to the record presented and may consider only

arguments and assertions supported by the evidence in the record.”

Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004).)

¶ 42 For the above reasons, we reject McMillian’s claim that his

plea counsel was ineffective.

III. Disposition

¶ 43 The order is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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