Peo v. Pressler

22CA1376 Peo v Pressler 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1376
Garfield County District Court No. 12CR240
Honorable Denise K. Lynch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Erin Pressler,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND APPEAL DISMISSED IN PART

Division V
Opinion by JUDGE GROVE
Lum and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 7, 2024

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

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Erin Pressler, appeals the postconviction court’s

order denying her Crim. P. 35(c) motion alleging that she received

ineffective assistance of counsel at trial. Pressler also contests the

postconviction court’s partial denial of her challenge to an order

requiring her to pay restitution. We affirm the portion of the order

that denied Pressler’s ineffective assistance claim but dismiss the

portion of Pressler’s appeal that concerns restitution because that

question is not ripe for appellate review.

I. Background

¶2 Pressler was a part-time bookkeeper for a small business,

Designer Door Hardware (DDH). She left that job and then, after

the termination of her employment, entered the DDH offices without

permission and deleted the business’s accounting software. Once

the software had been restored, DDH’s new bookkeeper found debit

card purchases and checks written from the company’s account to

accounts owned by Pressler and her husband. Further

investigation revealed that, while she worked for DDH, Pressler was

also collecting Social Security disability benefits, and was reporting

her DDH salary as part of her husband’s income rather than her

own.

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¶3 After a jury trial, Pressler was found guilty of one count each

of theft from DDH and the Social Security Administration (SSA),

four counts of filing a false tax return, and one count of computer

crime. The trial court sentenced Pressler to an aggregate sentence

of four years in the custody of the Department of Corrections and

ordered her to pay restitution to DDH, the SSA, and the Colorado

Department of Revenue.

¶4 On direct appeal, a division of this court reversed Pressler’s

conviction and sentence for theft from DDH. People v. Pressler,

(Colo. App. Nos. 16CA0647 & 16CA1172, May 2, 2019) (not

published pursuant to C.A.R. 35(e)). The division also concluded

that Pressler was entitled to retroactive application of the 2013

amendment to the theft statute and that the evidence presented at

trial would only support a class 4 felony conviction. The division

therefore remanded the case for resentencing. On remand, the

prosecution dismissed the charge alleging that Pressler stole money

from DDH and the trial court amended its restitution order to

reflect the dismissal of that charge. The court also resentenced

Pressler for class 4 felony theft.

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¶5 Pressler then filed a timely motion for postconviction relief,

asserting that she received ineffective assistance of counsel at trial.

She also argued that the amended restitution order, which was

issued after the conclusion of her direct appeal, created an illegal

sentence because it was untimely under the holding of People v

Weeks, 2021 CO 75. The postconviction court (1) found that trial

counsel was not ineffective at trial; (2) found that trial counsel was

ineffective at the restitution phase; and (3) rejected Pressler’s claim

that the restitution order was untimely and therefore illegal.

Therefore, the postconviction court vacated the restitution order

and ordered that a new hearing should be held to re-establish the

appropriate amount.

¶6 However, Pressler appealed the order before the court could

hold a new restitution hearing. While this appeal was pending, the

People requested the postconviction court to hold another

restitution hearing, but the court concluded that Pressler’s appeal

had deprived it of jurisdiction to do so. To date, no hearing has yet

occurred nor has any restitution amount been set.

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II. Ineffective Assistance of Trial Counsel

¶7 Pressler contends that the postconviction court erroneously

denied her claim that she received ineffective assistance of counsel

at trial. We disagree.

A. Applicable Law and Standard of Review

¶8 A defendant’s right to effective assistance of counsel is

guaranteed by the United States and Colorado Constitutions. U.S.

Const. amend. VI, XIV; Colo. Const. art. II, § 16. To obtain relief on

an ineffective assistance of counsel claim, a defendant must satisfy

the two-pronged test adopted by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland’s first prong, a defendant must first show the acts or

omissions of counsel fell outside the range of professionally

competent assistance. People v. Rodriguez, 914 P.2d 230, 294

(Colo. 1996). Under the second prong, a defendant must prove she

suffered prejudice as a result of counsel’s deficient performance. Id.

¶9 The postconviction court determines the weight and credibility

to be given to the testimony of witnesses in a Crim. P. 35(c) hearing.

People v. Washington 2014 COA 41, ¶ 17. When the evidence in the

record supports the court’s findings, we will not disturb those

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findings on review. Id. But we review the court’s conclusions of law

de novo. Id. Those legal conclusions to which we do not defer

include “the ultimate determinations on Strickland’s performance

and prejudice prongs.” People v. Sifuentes, 2017 COA 48M, ¶ 16;

see People v. Newmiller, 2014 COA 84, ¶ 18.

B. Analysis

¶ 10 In her postconviction motion and at the hearing, Pressler

claimed that her trial counsel (two attorneys from the Office of the

Public Defender) were ineffective for several reasons, only one of

which she pursues on appeal.1 Specifically, she asserted that trial

counsel’s approach to the charges for filing false tax returns and for

theft from the SSA — which focused in part on discrediting DDH’s

owner and in part on asserting that Pressler was kept off the books

to protect the owner from workers’ compensation liability in the

event that Pressler injured herself on the job — was constitutionally

deficient. She asserts that trial counsel should have instead

pursued a strategy built on the theory that Pressler was not a DDH

1 Any arguments that Pressler raised in her postconviction motion

and at the hearing but does not assert on appeal are abandoned,
and we do not address them further. People v. Osorio, 170 P.3d
796, 801 (Colo. App. 2007).

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employee. (As the trial court explained in its order denying the

postconviction motion, Pressler maintained that charges for theft

from the SSA and for failing to file tax returns both depended on

her status as an employee of DDH. We express no opinion as to

whether this is true.)

¶ 11 The postconviction court rejected Pressler’s claim because

Pressler did not establish that “defense counsel’s conduct in not

pursuing a defense surrounding Defendant’s employment status

was deficient,” or that pursuing such a defense “would have made a

difference in the outcome of the convictions on the charges of filing

false tax returns and the[ft from the] SSA.” In other words, the

court found that Pressler had not satisfied either prong of

Strickland.

¶ 12 Although the postconviction court found that Pressler failed to

establish either prong of the Strickland test, we need consider only

whether trial counsel’s performance was deficient. See People v.

Villanueva, 2016 COA 70, ¶ 66 (“If a court determines that a

defendant has failed to prove either prong of the Strickland analysis,

it may deny an ineffective assistance claim without addressing the

other prong.”).

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¶ 13 In determining whether counsel’s performance was deficient,

we evaluate the representation from counsel’s perspective at the

time of the representation, and we “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003).

¶ 14 To prove deficient performance, the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be sound trial strategy. Davis v. People, 871 P.2d 769,

772 (Colo. 1994) (citing Strickland, 466 U.S. at 689); People v.

Lopez, 2015 COA 45, ¶ 59. With regard to trial strategy, defense

counsel has final authority to make strategic or tactical decisions,

including “what strategy should be employed in the defense of the

case.” Arko v. People, 183 P.3d 555, 558 (Colo. 2008) (quoting

Steward v. People, 498 P.2d 933, 934 (Colo. 1972)). Our review of

reasonable professional assistance and sound trial strategy must

not be clouded by the effects of hindsight. Strickland, 466 U.S. at

689.

¶ 15 To overcome the presumption of effective counsel, the

defendant must show that counsel “made one or more errors that

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were so flagrant that they more likely resulted from neglect or

ignorance rather than from informed professional deliberation.”

People v. Wardell, 2020 COA 47, ¶ 29. In applying this standard,

courts have recognized that an attorney’s “strategic choices made

after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, 466 U.S. at 690.

¶ 16 “[S]trategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” People v. Ray,

2015 COA 92, ¶ 14 (quoting Ardolino, 69 P.3d at 76); see also

Strickland, 466 U.S. at 690-91. An investigation is reasonable if it

“is sufficient to reveal potential defenses and the facts relevant to

guilt.” Newmiller, ¶ 45 (citation omitted).

¶ 17 Pressler argues her trial counsel’s performance fell below an

objective standard of reasonableness because counsel failed to

investigate and present a defense that Pressler was not a DDH

employee. Pressler contends she, her spouse, and others were key

witnesses who could have attested to Pressler’s employment status

and that trial counsel ignored her request to investigate and pursue

this angle of defense at trial. Instead, trial counsel chose a theory

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of defense that Pressler was paid through her husband so DDH’s

owner could avoid liability from a potential workers’ compensation

claim. Pressler argues that this theory failed to rebut necessary

elements of the charges related to tax filings and theft from the

SSA, and as a result should not be afforded any presumption of

reasonability.

¶ 18 We do not know exactly why trial counsel pursued the trial

strategy that they did because neither Pressler nor the prosecution

called them as witnesses at the postconviction hearing.2

Nonetheless, our examination of the record supports several

plausible inferences. See People v. Luong, 2016 COA 13M, ¶ 20

(“[I]n applying the presumption that counsel’s conduct was

reasonable, courts are ‘required not simply to give [the] attorneys

the benefit of the doubt, but to affirmatively entertain the range of

possible reasons . . . counsel may have had for proceeding as they

did.’”) (citation omitted).

2 We note that because Pressler carried the burden of establishing

ineffective assistance of counsel, People v. Houser, 2020 COA 128,
¶ 31, any gaps in the evidence that resulted from Pressler’s decision
not to call trial counsel as witnesses weigh against her claim.

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¶ 19 First, trial counsel told the Presslers why they were not

centering their defense around Mr. Pressler, who Pressler argues on

appeal was the “most compelling postconviction witness.” Mr.

Pressler testified at the hearing that trial counsel told him it was

“probably best for [Mr. Pressler] not to testify” because he was at

risk of being arrested if he appeared in court. Mr. Pressler went on

to explain that trial counsel told him that his arrest could lead to

the Presslers’ minor child being taken into child protective services.

Pressler herself testified similarly, explaining that trial counsel

opted not to prepare Mr. Pressler to appear at trial because of

“threats from the D.A.”

¶ 20 Without Mr. Pressler, the remaining evidence relating to

Pressler’s employment status was flawed or nonexistent. For

example, Pressler did not testify in her own defense, but if she had,

the court found, “it would likely have come to light that she never

told any of the investigating officers that she was not an employee

of [DDH] when she had the opportunity to do so.” And perhaps

even more problematically, Pressler admitted in a recorded

interview with a police investigator that she worked for DDH.

Moreover, while Pressler argues that testimony from other witnesses

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at the postconviction hearing established her employment status,

the postconviction court found this testimony unpersuasive.

¶ 21 Second, because Pressler faced more than just the SSA and

tax charges, we cannot assess the reasonableness of counsel’s

strategy regarding those charges in isolation. To the contrary, the

fact that Pressler was also charged with stealing a large amount of

money from DDH meant that trial counsel had to employ an

approach that could plausibly defend against that charge without

undermining the rest of the defense’s case. Counsel may have

determined that focusing on Pressler’s employment status was a

technicality that would not aid the broader strategy of trying to cast

doubt on the credibility and motivations of DDH’s owner.

¶ 22 Given these possibilities, we are not persuaded by Pressler’s

argument that her counsel’s trial strategy was manifestly

unreasonable. Contrary to Pressler’s arguments on appeal, a

theory that DDH’s owner paid Pressler through her husband to

avoid a potential workers compensation claim could have negated

the mens rea element for both charges. See § 18-4-401(1)(f), C.R.S.

2024 (providing that a person commits theft when she

“[i]ntentionally misrepresents or withholds a material fact for

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determining eligibility for a public benefit and does so for the

purpose of obtaining or retaining public benefits for which the

person is not eligible”); § 39-21-118(4), C.R.S. 2024 (providing that

a person is guilty of a class 5 felony if she “willfully makes and

subscribes any [tax] return, statement or other document, . . .

which . . . she does not believe to be true and correct as to every

material matter . . . ”). The strategy that trial counsel employed had

the potential to negate Pressler’s mens rea by showing that she

relied on the business acumen of DDH’s owner in structuring her

employment, and therefore that she never intentionally misled the

SSA, misrepresented her circumstances, or willfully filed false tax

returns.

¶ 23 In sum, the record supports the postconviction court’s

conclusion that trial counsel’s decision not to pursue Pressler’s

preferred theory of defense was well within the range of

professionally competent assistance. Pressler therefore failed to

meet her burden under Strickland’s first prong, and we need not

inquire into whether Pressler suffered prejudice as a result of

counsel’s strategic decisions.

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III. Restitution

¶ 24 Pressler also contends that the amended restitution order is

illegal under the holding in Weeks. We decline to address the

merits of this argument because it is not ripe for appellate review.

A. Standard of Review

¶ 25 Whether an issue is ripe for review is a legal question that we

review de novo. Youngs v. Indus. Claim Appeals Off., 2012 COA

85M, ¶ 16.

B. There is No Restitution Order to Appeal

¶ 26 “A court lacks subject matter jurisdiction to decide an issue

that is not ripe for adjudication.” DiCocco v. Nat’l Gen. Ins. Co., 140

P.3d 314, 316 (Colo. App. 2006). “Ripeness tests whether an issue

is real, immediate, and fit for adjudication.” Zook v. El Paso County,

2021 COA 72, ¶ 9. And we generally “refuse to consider uncertain

or contingent future matters that suppose speculative injury that

may never occur.” Bd. of Dirs., Metro Wastewater Reclamation Dist.

v. Nat’l Union Fire Ins. Co. of Pittsburgh, 105 P.3d 653, 656 (Colo.

2005).

¶ 27 Here, there is currently no restitution order to vacate. To put

it another way, any injury Pressler suffers from relating to her 2020

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amended restitution order is presently speculative. The

postconviction court has already vacated Pressler’s amended

restitution and remanded it for a hearing to redetermine the

amount of restitution owed. The outcome of this hearing is not

certain. It is entirely possible that the parties may reach an

agreement before it occurs, or the People could fail to meet their

burden of proof. Either outcome would render inconsequential the

postconviction court’s application of Weeks.

¶ 28 As a result, because the restitution order that Pressler

attempts to appeal has been vacated and Pressler only currently

suffers from a speculative injury, this matter is not ripe for

adjudication.

IV. Disposition

¶ 29 We affirm the postconviction court’s order denying Pressler’s

claim that she received ineffective assistance of counsel at trial. We

dismiss that portion of Pressler’s appeal that challenges the court’s

2020 amended restitution order and the postconviction court’s

application of Weeks and order for a new restitution hearing.

JUDGE LUM and JUDGE BERNARD concur.

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