Peo v. Chalchi-Sevilla

22CA1892 Peo v Chalchi-Sevilla 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1892

El Paso County District Court No. 10CR1604

Honorable Robin Chittum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ricardo Chalchi-Sevilla,

Defendant-Appellant.

ORDER AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Pawar and Johnson, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

William Holzer, Alternate Defense Counsel, Littleton, Colorado, for Defendant-

Appellant

1

¶ 1 Defendant, Ricardo Chalchi-Sevilla, appeals the district court’s

order denying his postconviction motion alleging that he received

ineffective assistance of counsel at trial. We affirm.

I. Factual and Procedural History

¶ 2 In April 2010, Esteban Garcia, his two granddaughters, and

an employee were closing Garcia’s restaurant for the night when

Bertha Melo knocked on the door. Garcia informed Melo that the

restaurant was closed, but he eventually allowed her inside when

she said she only needed to purchase a calling card (which the

restaurant also sold). Melo purchased the calling card and left the

store, returning to a pickup truck where Chalchi-Sevilla waited.

Chalchi-Sevilla left the truck and went to the restaurant. As Garcia

was locking the door, Chalchi-Sevilla pointed a gun at him and

yelled (in Spanish), “Where is the money?” When Garcia attempted

to pull out his own gun, Chalchi-Sevilla fired, hitting Garcia six

times. Chalchi-Sevilla fled the scene, and Garcia died at the

hospital.

¶ 3 Chalchi-Sevilla was convicted of first degree felony murder,

conspiracy to commit aggravated robbery, attempted aggravated

robbery, accessory to murder, and crime of violence counts. The

2

trial court imposed a sentence of life in prison without the

possibility of parole on the murder conviction and shorter,

concurrent sentences on the other convictions. In 2015, a division

of this court affirmed Chalchi-Sevilla’s convictions on direct appeal.

See People v. Chalchi-Sevilla, (Colo. App. No. 12CA0202, Feb. 19,

2015) (not published pursuant to C.A.R. 35(f)).

¶ 4 In 2016, Chalchi-Sevilla filed a pro se petition for

postconviction relief under Crim. P. 35(c), asserting that he received

ineffective assistance of trial counsel. The district court denied the

petition without appointing counsel or holding a hearing. In 2019,

a division of this court reversed the district court’s ruling and

directed that court to appoint postconviction counsel for Chalchi-

Sevilla, to allow counsel to supplement his pro se petition, and to

conduct an evidentiary hearing. See People v. Chalchi-Sevilla, 2019

COA 75, ¶ 27.

¶ 5 In May 2021, Chalchi-Sevilla, through counsel, filed a

supplemental petition for postconviction relief, again asserting that

he received ineffective assistance of trial counsel. Following the

evidentiary hearing, the district court denied the petition.

3

II. Analysis

¶ 6 Chalchi-Sevilla contends that his trial attorneys did not

provide effective assistance because they (1) failed to properly

advise him of the potential parole impact on his prison sentence if

he had accepted the prosecution’s plea offer; and (2) improperly

advised him about his ability to assert a duress defense, thereby

causing him to waive his right to testify rather than testify in

support of such a defense.

A. General Principles

¶ 7 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). To demonstrate ineffective assistance of counsel, a

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

Washington, 466 U.S. 668 (1984). The defendant must show that

(1) their attorney’s performance was deficient and (2) the deficient

performance prejudiced them. Id. at 687; Dunlap v. People, 173

P.3d 1054, 1062 (Colo. 2007). To obtain relief, the defendant must

prove both prongs of this test. People v. Russell, 36 P.3d 92, 95

(Colo. App. 2001); see Dunlap, 173 P.3d at 1063 (“Only where both

the performance prong and the prejudice prong have been proven

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will a defendant be entitled to postconviction relief because of the

ineffective assistance of counsel.”).

¶ 8 In postconviction proceedings, the legality of the judgment and

regularity of the proceedings leading up to the judgment are

presumed, and the defendant bears the burden to establish by a

preponderance of the evidence the allegations in the postconviction

motion. People v. Firth, 205 P.3d 445, 449 (Colo. App. 2008).

Because the ineffectiveness of counsel inquiry involves mixed

questions of fact and law, we defer to the district court’s findings of

fact if they are supported by the record and review legal conclusions

de novo. Dunlap, 173 P.3d at 1063. In resolving issues of fact, the

district court determines the weight and credibility to be given the

testimony of witnesses. People v. Gandiaga, 70 P.3d 523, 526 (Colo.

App. 2002).

B. Plea Offer

¶ 9 Chalchi-Sevilla first contends that his trial attorneys were

ineffective because they failed to adequately advise him about his

opportunity for parole if he accepted the prosecution’s offer of a

stipulated sixty-year prison sentence. We disagree because the

5

record supports the district court’s finding that the prosecution

never made such a plea offer.

1. Additional Facts

¶ 10 In September 2011, Chalchi-Sevilla and the prosecution began

plea negotiations through a mediator. The prosecution offered

Chalchi-Sevilla a stipulated sentence of seventy-five years for the

crimes of second degree murder and attempted aggravated robbery.

Chalchi-Sevilla’s counsel proposed a counteroffer of thirty to forty

years if he pleaded guilty to second degree murder. Ultimately, the

parties failed to reach an agreement, and this case went to trial.

¶ 11 In Chalchi-Sevilla’s pro se and supplemental Rule 35(c)

petitions, he alleged that the prosecution extended a plea offer of

sixty years and that his counsel recommended that he reject the

deal because an offer of sixty years was “essentially equivalent to a

life sentence.” He also alleged that at no point during the mediation

did his attorneys ever discuss the possibility of being paroled or

parole eligibility dates.

¶ 12 Three witnesses testified during the postconviction hearing:

Jared Grabski, who represented Chalchi-Sevilla as second-chair

counsel from the beginning of the case through trial; Todd Johnson,

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who represented Chalchi-Sevilla as first-chair counsel from October

2011 through the trial; and Chalchi-Sevilla himself.

¶ 13 Grabski testified that the plea negotiations occurred at

mediation in September 2011. He indicated that — due to his role

as second chair — it was unlikely that he led any discussions with

Chalchi-Sevilla regarding the plea negotiations or the potential of

parole. Grabski also said that Chalchi-Sevilla’s defense team would

have advised him about the penalties and potential benefits of any

plea offers but that he did not personally recall any such

conversation with Chalchi-Sevilla.

¶ 14 Grabski remembered that the prosecution’s plea deal offered

seventy-five years in prison, consisting of consecutive sentences for

second degree murder and aggravated robbery. He also recalled

that the defense proposed a counteroffer of thirty to forty years if

Chalchi-Sevilla agreed to plead guilty to second degree murder.

Grabski further testified that he did not remember the defense

receiving any offers from the prosecution other than the seventy-

five-year deal. Grabski explained that no agreement was reached

and that, at the end of mediation, the defense was “left with an offer

of [seventy-five] years from the district attorney.”

7

¶ 15 Grabski was asked if he recalled the mediator telling the

defense team to not “bother calling the DA’s office with anything

less than [sixty years]?” Grabski responded, “I don’t remember

that.” When later asked, “is that figure of [sixty] years one that was

raised in negotiations,” Grabski said, “it sounds familiar, but I can’t

be certain.”

¶ 16 Johnson testified that he became involved in Chalchi-Sevilla’s

case in October 2011, shortly before the trial began. Johnson said

that he did not have any recollection of plea negotiations occurring

after he became involved and that “to a certain extent by the time I

came on it was a trial case.”

1

¶ 17 Chalchi-Sevilla testified that his attorneys told him that he

was charged with homicide and that, if he was convicted, he could

face the penalty of life in prison without the possibility of parole.

He said his attorneys did not discuss a plea deal with him until

mediation. He said he offered to plead guilty if there was a

1

Two other attorneys — Tamra Bowman and Tracy Eubanks —

represented Chalchi-Sevilla as first-chair counsel before Todd

Johnson. Neither Chalchi-Sevilla nor the prosecution offered the

testimony of Bowman or Eubanks at the postconviction hearing.

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guarantee of between thirty to forty years in prison but that the

prosecution rejected the offer, saying that it “had to be [seventy-five

years].”

¶ 18 Chalchi-Sevilla also testified that, after mediation, he had

several conversations with his attorneys. He confirmed that his

attorneys said the prosecution had offered a plea of seventy-five

years. Then, Chalchi-Sevilla claimed that his attorneys said the

offer was for sixty years but that they advised him to reject a sixty-

year offer because it was practically a life sentence without parole.

¶ 19 In its written order, the district court found that the testimony

of the attorneys was credible, and that Chalchi-Sevilla’s testimony

was not. The court also found that the prosecution never made an

offer of sixty years to Chalchi-Sevilla and that he would not have

taken such an offer in any event. Therefore, the court determined

that, “[a]s there was no [sixty-year] offer, trial counsel was not

deficient in failing to discuss potential parole on such an offer.”

2. Analysis

¶ 20 Deficient performance is that which falls outside “the wide

range of professionally competent assistance.” People v.

Washington, 2014 COA 41, ¶ 18 (quoting People v. Cole, 775 P.2d

9

551, 554 (Colo. 1989)). An attorney’s failure to present a defendant

with the opportunity to make a reasonably informed decision

whether to accept a plea offer constitutes deficient representation.

Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009) (holding that

attorney’s “failure to appropriately counsel his client regarding the

attractiveness of the plea bargain in relation to the risks of going to

trial was constitutionally deficient performance”); People v. Delgado,

2019 COA 55, ¶ 17 (holding that an attorney’s failure to properly

advise a defendant about his sentencing exposure deprives that

defendant of the opportunity to make an informed decision whether

to accept or reject an offer).

¶ 21 To establish prejudice where the defendant rejected a plea

offer, the defendant must show a reasonable probability that, but

for counsel’s deficient performance, the defendant would have

accepted the offer. Carmichael, 206 P.3d at 807; Delgado, ¶ 21.

The defendant must also demonstrate a reasonable probability that

the prosecution would not have withdrawn the offer and that the

court would have accepted it. Delgado, ¶ 21; see also Lafler v.

Cooper, 566 U.S. 156, 164 (2012).

10

¶ 22 We conclude that the evidence presented at the hearing —

specifically, the testimony of Grabski and Johnson detailed above —

supports the district court’s finding that the prosecution did not

offer a plea deal of sixty years in prison. See Delgado, ¶ 29 (The

threshold question for an ineffective assistance of counsel claim

based on the defendant’s rejection of an alleged plea offer is, “Did

the prosecutor offer defendant a plea agreement before the first

trial? If not, the claim fails.”).

¶ 23 To the extent Chalchi-Sevilla’s testimony about a sixty-year

offer conflicted with others’ recollection, we must defer to the

district court’s resolution of the conflict. See People v. Corson, 2016

CO 33, ¶ 32 (deferring to the district court’s findings because the

court’s credibility determination had support in the record);

Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011)

(“[A]ssessing the credibility of witnesses is a trial court function.”).

Notably, Grabski recalled only a seventy-five-year offer from the

prosecution, and he testified that any other offer would have been

documented in the defense’s case file. While Grabski also testified

that the mediator’s comment about a sixty-year sentence sounded

familiar, he could not be certain the comment was made.

11

¶ 24 Nonetheless, Chalchi-Sevilla relies heavily on the mediator’s

alleged comment that defense counsel should “not bother giving a

counteroffer of less than [sixty years].” Chalchi-Sevilla says the

mediator’s statement “should be sufficient to establish an offer of

[sixty] years.” But even assuming the mediator made this comment

to the defense, it does not suggest — much less, conclusively

establish — that the prosecution made a sixty-year offer. The

prosecution, not the mediator, was vested with the discretion to

engage in, or abstain from, plea negotiations. See People v. Justice,

2023 CO 9, ¶¶ 24-25 (holding that the “decision to have or forgo

plea discussions is the People’s and the People’s alone” and that the

defendant cannot “enlist the court’s assistance via an order for

mediation to try to force the People to extend an offer or to consider

a more favorable offer”).

¶ 25 In sum, because evidence in the record supports the district

court’s factual finding that the prosecution did not offer Chalchi-

Sevilla a sixty-year plea deal, we affirm the court’s decision that his

counsel could have not performed deficiently with respect to such a

plea deal.

12

¶ 26 Finally, to the extent Chalchi-Sevilla raises issues with respect

to the seventy-five-year plea offer, we will not address them. In his

Crim. P. 35(c) petitions, he alleged that his trial counsel performed

deficiently as to the prosecution’s alleged sixty-year plea offer. He

did not claim that his counsel rendered ineffective assistance as to

the plea offer of seventy-five years. Likewise, his postconviction

counsel’s arguments at the hearing focused on the alleged sixty-

year plea offer.

¶ 27 On appeal, however, Chalchi-Sevilla now claims that his trial

counsel also rendered ineffective assistance as to the prosecution’s

plea offer of seventy-five years. He says this claim was preserved at

the hearing by his postconviction counsel’s two-sentence allusion to

why he rejected the seventy-five-year plea offer. Even assuming

(without deciding) that a defendant can raise new postconviction

claims at an evidentiary hearing, we conclude that counsel’s fleeting

assertion did not sufficiently alert the district court to the claim

13

now raised on appeal. Not surprisingly, then, the court did not rule

on such a claim.

2

¶ 28 And we will not entertain the new claim on appeal. To allow

Chalchi-Sevilla to use his appellate briefs “to fortify” issues

“inadequately raised or supported by his motion” would “effectively

grant [him] a successive 35(c) motion without also burdening him

with the harsher standard of review appropriate to a successive

motion.” People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996);

DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not

raised before the district court in a motion for postconviction relief

will not be considered on appeal of the denial of that motion.”);

People v. Stovall, 2012 COA 7M, ¶ 3 (“Defendant has asserted three

claims of ineffective assistance of plea counsel that were not

sufficiently presented to the trial court and, therefore, are not

properly before us.”).

2

In his reply brief, Chalchi-Sevilla says “the court’s rejection of the

petition was a ruling on the claim” related to the seventy-five-year

plea offer. As noted, however, his Crim. P. 35(c) petitions did not

raise such a claim.

14

¶ 29 Given all this, we affirm the district court’s order that Chalchi-

Sevilla did not receive ineffective assistance of counsel with respect

to plea negotiations.

C. Duress Defense and the Right to Testify

¶ 30 Chalchi-Sevilla also contends that his attorneys provided

ineffective assistance because, based on their misunderstanding of

the law, they advised him not to testify that he was under duress at

the time of the crimes. We disagree because he did not prove that

his attorneys gave him such advice.

1. Additional Facts

¶ 31 At the postconviction hearing, Chalchi-Sevilla testified that,

the week before the trial, he told his attorneys that he acted under

duress during the crimes (because Melo forced him to commit the

crimes). He asserted that, after his attorneys learned that he

wanted to testify about this duress, they advised him not to testify

and that duress could be a defense to the theft charge but not to

the homicide charge.

3

Based on this information, Chalchi-Sevilla

alleged, he decided not to testify at trial.

3

Chalchi-Sevilla was not charged with theft.

15

¶ 32 Grabski testified at the postconviction hearing that he did not

remember having any conversations with Chalchi-Sevilla about

Melo forcing him to participate in the crimes. Grabski also pointed

out that Chalchi-Sevilla never mentioned that he acted under

duress when he gave his statement to the police; rather, Chalchi-

Sevilla denied being at the scene of the crime. Based on this

information, Grabski believed that the best trial strategy for

Chalchi-Sevilla’s defense was to attack the credibility of the

witnesses who had identified Chalchi-Sevilla as the culprit.

¶ 33 Similarly, Johnson did not recall having conversations with

Chalchi-Sevilla about a duress defense. Johnson said he was

confident that he spoke with Chalchi-Sevilla about the nature of the

defense before trial. Johnson, however, was less confident about

whether any of those conversations addressed duress. He testified

that he did not recall having that specific conversation with

Chalchi-Sevilla. Although Johnson recalled having conversations

during his career about duress not being a defense to felony

murder, he could not “specifically say it was tied to this case.”

¶ 34 When Johnson was later asked if he believed that “duress

would have been something you would have discussed with

16

[Chalchi-Sevilla],” he replied, “Yes, I believe so.” Subsequently,

however, Johson reiterated that he had no “independent

recollection” of such a conversation with Chalchi-Sevilla.

2. Analysis

¶ 35 To establish ineffective assistance of counsel regarding a

waiver of the right to testify, the defendant must prove by a

preponderance of the evidence that (1) defense counsel’s advice fell

below the professional level of competence demanded of attorneys

practicing in criminal law at the time of the trial and thereby

deprived the defendant of the ability to make an informed and

voluntary decision on whether to exercise the right to testify; and

(2) a reasonable probability exists that, but for defense counsel’s

deficient performance, the result of the trial would have been

different. People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).

¶ 36 Chalchi-Sevilla contends that he elected not to testify that he

was under duress when he participated in the crimes because his

counsel advised him that duress was not a defense to felony

murder. He says this advice was erroneous in light of the decision

in Doubleday v. People, 2016 CO 3, which was announced five years

after his trial. In that case, our supreme court held that duress can

17

be a defense to felony murder where duress is a defense to the

predicate offense of the felony murder charge. See id. at ¶¶ 24-27.

¶ 37 Chalchi-Sevilla, however, failed to prove to the fact finder’s

satisfaction that his counsel gave him erroneous advice about

duress. To reiterate, a defendant must establish each Strickland

prong by a preponderance of the evidence. See Naranjo, 840 P.2d

at 325. Thus, the defendant bears the burden to convince the

district court that the existence of the pertinent fact is “more

probable than its nonexistence.” People v. Taylor, 618 P.2d 1127,

1135 (Colo. 1980) (quoting Page v. Clark, 197 Colo. 306, 318, 592

P.2d 792, 800 (1979)). Put differently, proof by a preponderance of

the evidence requires that the evidence must “preponderate over, or

outweigh, evidence to the contrary.” City of Littleton v. Indus. Claim

Appeals Off., 2016 CO 25, ¶ 38 (citation omitted).

¶ 38 Neither of Chalchi-Sevilla’s attorneys who testified at the

hearing recalled any conversation with him about a duress defense.

While Chalchi-Sevilla testified that such a conversation took place,

the court generally found his testimony incredible. As a result, the

court found that “the evidence on this issue is blurred. The Court

is not convinced a discussion about duress did not take place. The

18

Court is not convinced a discussion did take place.” Consequently,

because Chalchi-Sevilla did not convince the court that the alleged

discussion about duress took place, he failed to carry his burden to

prove that his counsel performed deficiently.

¶ 39 Therefore, we will not disturb the court’s denial of his claim.

III. Conclusion

¶ 40 The order is affirmed.

JUDGE PAWAR and JUDGE JOHNSON concur.