Peo v. Bloom

22CA1921 Peo v Bloom 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1921

El Paso County District Court No. 21CR1788

Honorable Erin Sokol, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Laird Bloom,

Defendant-Appellant.

ORDER AFFIRMED

Division II

Opinion by JUDGE JOHNSON

Fox and Schock, JJ., concur

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

Announced November 21, 2024

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

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

Appellant

1

¶ 1 Defendant, David Laird Bloom (Bloom), appeals the district

court’s order denying his motion to withdraw his guilty pleas. On

appeal, Bloom contends the district court erred because (1) it

should have appointed him conflict-free counsel and (2) he did not

waive his right to counsel and had to represent himself. We reject

his contentions and, therefore, affirm the order.

I. Background

¶ 2 In April 2021, Bloom was charged in El Paso County District

Court Case No. 21CR1788 with two counts of first degree murder of

R.B., two counts of attempted first degree murder of K.R., two

counts of first degree assault on K.R., two counts of attempted first

degree murder of D.P., two counts of first degree assault on D.P.,

one count of attempted first degree assault on E.D., one count of

possession of a weapon by a previous offender, twenty-one crime of

violence sentence enhancers, and three habitual criminal counts.

1

1

We take judicial notice of Bloom’s separate but related appeal in

this court, Case No. 22CA1920, which includes the district court

record for El Paso District Court Case No. 20CR6100. See People v.

Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (“A court may take judicial

notice of the contents of court records in a related proceeding.”).

2

¶ 3 Approximately five months earlier, in November 2020, Bloom

had been charged in El Paso County District Court Case No.

20CR6100 with one count of first degree murder of T.B., two counts

of first degree assault on N.S., and three habitual criminal counts.

¶ 4 In August 2021, Bloom filed a motion in both cases alleging a

conflict with his public defenders. Bloom argued that the conflict

was due to his counsel not meeting with him so that they could

review discovery. Bloom withdrew the motion at a September 15,

2021, hearing after the district court instructed defense counsel to

meet with Bloom and review discovery.

¶ 5 On January 28, 2022, Bloom entered into plea agreements in

both cases. In Case No. 20CR6100, Bloom pled guilty to one count

of second degree murder of T.B. and one crime of violence sentence

enhancer. In Case No. 21CR1788, Bloom pled guilty to one count

of second degree murder of R.C. and one crime of violence sentence

enhancer. Related to both plea agreements, Bloom agreed that

charges filed against him in El Paso County District Court Case

Nos. 20CR5736 and 20CR5727 would be dismissed (but subject to

restitution, if any). And he agreed that his sentences for Case Nos.

20CR6100 and 21CR1788 could each range between thirty to forty

3

years and that they would run consecutively, which would

“functionally result in a potential total sentence of 60 to 80 years in

the Department of Corrections when considering both cases.”

¶ 6 On May 23, 2022, Bloom filed in both cases a pro se motion to

withdraw his guilty pleas before sentencing under Crim. P. 35(c) on

the ground that his counsel were ineffective.

2

He requested new

counsel.

¶ 7 The court held a hearing on May 25, 2022, to address both

motions. Bloom’s defense counsel were present. The court allowed

Bloom to read into the record a reply that he had filed before the

hearing. The court then addressed Bloom’s argument that defense

counsel had not visited him to review discovery. The court

confirmed with both Bloom and defense counsel that at the

September 15 hearing, Bloom had withdrawn the conflict motion.

3

2

Although Bloom filed his motion under Crim. P. 35(c), his counsel

on appeal acknowledges that Bloom’s request was governed by

Crim. P. 32(d).

3

The September 15, 2021, transcript is not included in the record.

But there is no doubt that Bloom confirmed at the May 25, 2022,

hearing that he withdrew his August 2021 motion at the September

hearing.

4

¶ 8 Defense counsel, however, declined to substantively address

Bloom’s request to withdraw his guilty pleas, as Bloom had raised

ineffective assistance of counsel and conflict issues. But the court

declined to appoint new counsel because it determined that Bloom’s

allegations were either refuted by the record or conclusory, and,

therefore, he had failed to prove his counsel had been ineffective or

that his pleas had not been entered knowingly, voluntarily, and

intelligently.

¶ 9 After denying Bloom’s request to withdraw his guilty pleas, the

court asked defense counsel whether they believed any conflict

existed requiring a hearing under People v. Bergerud, 223 P.3d 686

(Colo. 2010), before moving forward to sentencing. Defense counsel

did not believe any conflict existed.

¶ 10 On June 13, 2022, the court held a sentencing hearing in both

cases; Bloom was sentenced to two separate forty-year terms in the

custody of the Department of Corrections with his sentence in Case

No. 20CR6100 running consecutively to his sentence in Case No.

21CR1788, for a total sentence of eighty years.

5

II. Standard of Review and Applicable Law

¶ 11 We review a court’s denial of a motion to withdraw a guilty

plea for an abuse of discretion. People v. Lopez, 12 P.3d 869, 871

(Colo. App. 2000). 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.

¶ 12 Crim. P. 32(d) authorizes a defendant to file a motion to

withdraw a guilty plea before a sentence is imposed. Kazadi v.

People, 2012 CO 73, ¶ 21. But a defendant is not entitled to

withdraw a guilty plea as a matter of right. People v. Chavez, 730

P.2d 321, 327 (Colo. 1986). Under that rule, the defendant has the

burden to demonstrate a fair and just reason for withdrawal.

Lopez, 12 P.3d at 871. An allegation of ineffective assistance of

counsel “at the time a guilty plea is entered may constitute a fair

and just reason to withdraw the plea prior to sentencing.” Kazadi,

¶ 21; Lopez, 12 P.3d at 871.

¶ 13 The Sixth Amendment right to counsel includes the right to

effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 686 (1984). To prevail on an ineffective assistance of counsel

claim, a defendant must prove by a preponderance of the evidence

6

that (1) defense counsel’s performance was deficient and (2)

counsel’s deficient performance prejudiced the defendant. People v.

Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Strickland, 466 U.S. at

687).

¶ 14 To establish deficient performance, a defendant must prove

that counsel’s performance “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. To establish

prejudice, a defendant must prove that, but for counsel’s deficient

conduct, there is a reasonable probability that the outcome of the

proceeding would have been different. Davis v. People, 871 P.2d

769, 772 (Colo. 1994). Because a defendant must establish both

prongs, a court may resolve an ineffective assistance of counsel

claim solely on the basis that a defendant failed in either regard.

People v. Karpierz, 165 P.3d 753, 759 (Colo. App. 2006).

¶ 15 The constitutional right to effective assistance of counsel

includes the right to conflict-free counsel. People v. Martinez, 869

P.2d 519, 524 (Colo. 1994). The right can therefore be violated by

“representation that is intrinsically improper due to a conflict of

interest.” People v. Castro, 657 P.2d 932, 943 (Colo. 1983).

7

III. Analysis

¶ 16 At the May 25 hearing, relying on Lopez, 12 P.3d at 871-72,

the court denied Bloom’s request for new appointed counsel. Even

though Bloom’s current counsel did not take a substantive position

or participate at the hearing, we discern no abuse of discretion.

Similar to Lopez, Bloom did not allege a colorable claim of

ineffective assistance of counsel entitling him to a hearing and new

appointed counsel.

¶ 17 In Lopez, the defendant requested new counsel to address his

motion to withdraw his guilty plea because the defendant alleged

his plea counsel was ineffective. Id. at 870. The defendant argued

that a more lenient standard should apply when such a request is

made in connection with a motion to withdraw a guilty plea before a

conviction is final than when it is made in postconviction

proceedings. Id. at 871.

¶ 18 The division disagreed. Id. It determined that in the context of

Fed. R. Crim. P. 32(d), federal courts have held a defendant is not

entitled to a hearing on a motion to withdraw a guilty plea “if the

defendant’s allegations [of ineffective assistance of counsel] merely

contradict the record, are inherently incredible, or are simply

8

conclusory.” Lopez, 12 P.3d at 871; see also United States v.

Wilson, 828 F. Supp. 2d 679, 688 (S.D.N.Y. 2011), aff’d, 523 F.

App’x 30 (2d Cir. 2013); United States v. Shah, 263 F. Supp. 2d 10,

25 (D.D.C. 2003), aff’d and remanded, 453 F.3d 520 (D.C. Cir.

2006). Without a colorable claim, the division concluded that a

district court has discretion whether to appoint counsel related to a

Rule 32(d) motion.

¶ 19 And Bloom’s reliance on Riley v. District Court, 507 P.2d 464,

465 (Colo. 1973), is misplaced. There, the supreme court decided

that because the defendant’s counsel were likely “necessary

witnesses adverse to the interests of [the defendant] at a hearing on

[his] motion” there would be a conflict of interest. Id. at 466.

Bloom contends the court in his case held a hearing, and consistent

with Riley, counsel should have been appointed. But in our view,

the May 25 hearing was to determine whether Bloom had alleged a

colorable ineffective assistance of counsel claim. If the court had

determined Bloom had raised a colorable claim necessitating an

evidentiary hearing in which his public defenders would likely

testify, we agree that this would present a very different situation.

But absent a colorable ineffective assistance of counsel claim

9

necessitating adverse testimony from Bloom’s counsel, Riley is

inapplicable.

4

¶ 20 As framed by Bloom, he does not appeal the court’s conclusion

that he did not establish a fair and just reason to set aside his

guilty pleas. Instead, he contends that because his counsel had a

conflict and he had established a colorable ineffective assistance of

counsel claim, the district court should have appointed him

conflict-free counsel. We discern no abuse of discretion on the part

of the district court when it denied Bloom new appointed counsel

because his allegations were either refuted by the record or

conclusory.

¶ 21 As support for his claim, Bloom contends that his defense

counsel were ineffective because (1) they did not physically review

discovery with him, (2) they improperly pressured his mother and

him to enter into the plea agreement, and (3) there were

typographical errors in the plea agreement. He also alleges that

4

Although People v. Lopez, 12 P.3d 869 (Colo. App. 2000), did not

address a defendant’s waiver of counsel, it was not necessary for

the court to advise Bloom about the risks of self-representation and

obtain from him a valid waiver of counsel when he failed to allege a

colorable claim.

10

because the court asked the prosecution to respond to his pro se

motion and held a hearing, this supports a colorable claim.

5

We

address each of Bloom’s arguments in turn.

¶ 22 First, Bloom contends that defense counsel only reviewed

discovery with him after he filed his August 2021 motion and that

there is nothing in the record to support that his counsel met with

him after the September 15 hearing. We disagree.

¶ 23 As to discovery, the court verified with Bloom at the May 25

hearing that at the September 15 hearing he withdrew his August

2021 motion alleging a conflict with his counsel. The court then

verified whether defense counsel had met with Bloom after the

September 15 hearing. The court asked, “Were you able, then to

meet with [Bloom] in person?” Defense counsel responded, “I can

remember at least two meetings in person with Mr. Bloom at

different points . . . .” Defense counsel noted that the pandemic

initially made in-person meetings with Bloom difficult. The court

5

We read nothing in Bloom’s opening brief that seeks to challenge

the court’s findings that Bloom knowingly, voluntarily, and

intelligently entered into the plea agreements. We consider this

issue to be abandoned on appeal. See People v. Carr, 2016 COA

168, ¶ 14.

11

followed up, asking, “But did you have the opportunity to meet with

him? You weren’t restricted from meeting with him all that time?”

Defense counsel responded, “No, we were not restricted from

meeting with him. And then, you know, the Webex also changed. It

started off pretty rough and then got much better. So, yes, there

have been both [in person and Webex] meetings.”

¶ 24 On appeal, Bloom contends that defense counsel did not

confirm specifically whether they responded to Bloom’s later

requests to meet and review discovery. But Bloom does not identify

any specific missed meetings or provide support for the assertion

that he made additional requests to review discovery with his

counsel. Indeed, the district court said that following the

withdrawal of the August 2021 motion, “If [counsel not meeting

with Bloom] was an issue thereafter, the defendant never raised it,

and the assertion now as a basis to withdraw his plea is conclusory.

It’s unsupported by the record.” And as the Attorney General

points out, and we agree, Bloom fails the prejudice prong of

Strickland because he does not support how his review of further

discovery showed that he would not have entered into the plea

agreement. People v. Sifuentes, 2017 COA 48M, ¶ 20 (“In the

12

context of a guilty plea, the prejudice prong [of the test for

ineffective assistance of counsel] requires the defendant to ‘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.’”) (citation omitted).

¶ 25 Regardless, as the district court noted, Bloom was present at

the preliminary hearings in both cases where the prosecution

presented extensive evidence. And Bloom attended mediation on

January 21, 2022 before entering into the plea agreement, which

presumably included discussion of the prosecution’s evidence as

part of negotiations.

¶ 26 Second, Bloom contends that defense counsel coerced him to

enter into the plea agreement by telling his mother that he had “no

chance of winning,” his sentences would run concurrently rather

than consecutively, and he would be potentially eligible for a fifty

percent reduction in his sentence. But the district court concluded

that these allegations were conclusory or refuted by the record.

Specifically, it pointed to Bloom’s affidavit — submitted as part of

his motion — conceding that he gave “permission” to defense

counsel to speak to his mother. The court continued, “There is

13

nothing improper about Counsel expressing concern about the

weaknesses in defendant’s case to defendant’s mother under the

circumstances such as these.” And the court reasoned that it was

irrelevant whether Bloom’s mother “misunderstood” the terms of

the deal because the providency hearing supports that Bloom “did

understand them, and the record reveals absolutely nothing to the

contrary.”

¶ 27 The court continued that, even assuming Bloom’s mother

thought his sentences would be concurrent, Bloom’s own affidavit

also refutes this point. It said, “In the defendant’s affidavit, page 7,

the defendant, prior to entering into his plea, admits, my Public

Defenders advised me that the two pleas would run consecutively so

I would face 60 to 80 years in prison.”

¶ 28 More significantly, though, the court addressed the timing of

when defense counsel spoke with Bloom’s mother. In Case No.

20CA6100, the court found that Bloom signed the plea agreement

for Case No. 20CA6100 on January 25, 2022, four days after the

January 21 mediation and three days before the providency hearing

on January 28. The court acknowledged that Bloom was now

contesting the date he signed the agreement, but it noted that

14

Bloom’s signature, initials, and the date were all in black ink; while

his attorneys, who also signed on January 25, used blue ink; and

the prosecutor, who also used blue ink, signed on January 26.

Bloom alleged that defense counsel “coerced his mother on the

night before he entered into his guilty pleas,” so on January 27.

But the court reasoned that Bloom had already decided to enter

into the plea agreement before counsel’s alleged conversation with

his mother, “making that conversation even less material to

defendant’s voluntary entry of his guilty plea[s].”

¶ 29 We acknowledge that Bloom did not date the plea agreement

under his signature in this case. Even assuming Bloom signed this

plea agreement later than January 25, the district court’s finding

that defense counsel’s discussion with his mother was not material

to Bloom’s decision to enter into the plea agreement in Case No.

20CR6100 equally applies to this case. By agreeing to the Case No.

20CR6100 plea agreement that his sentences in both cases would

run consecutively, Bloom cannot now claim his counsel failed to

advise him as to either plea agreement or that he did not

understand the terms in each.

15

¶ 30 Third, Bloom contends the typographical error in the plea

agreement supports that counsel were ineffective. Paragraph 14(c)

of the plea agreement originally stated that if the court found

extraordinary aggravating circumstances, other than those

identified in other paragraphs, Bloom’s prison term could be greater

than the presumptive range up to double the maximum term,

“making a term as long as 3 years.” But the number three was

marked out in blue ink and replaced with a handwritten number

forty-eight.

¶ 31 At the May 25 hearing, the court highlighted that it noticed

this typographical error at the providency hearing. And the court

further indicated that defense counsel confirmed at the providency

hearing that they had advised Bloom the possible maximum

sentence was forty-eight, not three, years. This was followed up

with the court at the May 25 hearing reading from the providency

hearing transcript:

THE COURT: Sir, because you are agreeing

that this is a crime of violence, your plea is a

mandatory 16-to 48-year range for the

Department of Corrections. Do you

understand that?

THE DEFENDANT: Yes.

16

THE COURT: Okay. And you understood that

there’s a typographical error in this section of

the plea paperwork that says three years.

Actually, for extraordinary aggravating

circumstances, your sentence can be as long

as 48 years. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And do you understand that I’m

making the change in the plea paperwork as

well?

THE DEFENDANT: Yes.

The court further read from the providency hearing transcript,

confirming Bloom understood the counterpart term in the plea

agreement in Case No. 20CR6100 was also corrected to forty-eight

years. Based on the providency hearing transcript, Bloom’s reliance

on the typographical error cannot be the basis for an ineffective

assistance of counsel claim.

¶ 32 Finally, Bloom argues that his claim is colorable because the

court required the prosecution to file a response to his motion. But

Crim. P. 32(d) does not delineate specific procedures for the court to

follow when deciding such a motion. It simply states that “[a]

motion to withdraw a plea of guilty or of nolo contendere may be

made only before sentence is imposed or imposition of sentence is

suspended.” In contrast, Crim. P. 35(c)(3)(V) states that if the court

17

does not summarily deny the motion, “the court shall cause a

complete copy of said motion to be served on the prosecuting

attorney if one has not yet been served by counsel for the

defendant” and “[i]f the defendant has requested counsel be

appointed in the motion, the court shall cause a complete copy of

said motion to be served on the Public Defender.” See People v.

Higgins, 2017 COA 57, ¶5. But these provisions in Crim. P. 35

apply only to motions based on “one or more of the grounds

enumerated in section (c)(2) of this Rule,” referring to Rule 35.

Crim. P. 35(c)(3) (emphasis added). Thus, to the extent the court

orders a prosecutor to respond to a Rule 32(d) motion, the

appointment of counsel provision in Rule 35(c)(3)(V) does not apply

to relief requested under Rule 32(d). See People in Interest of

M.K.D.A.L., 2014 COA 148, ¶ 5.

IV. Conclusion

¶ 33 The order is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.