Peo v. Nardi

22CA0436 Peo v Nardi 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0436
Pitkin County District Court No. 13CR33
Honorable Christopher G. Seldin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Peter Bruno Nardi,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Peter Bruno Nardi, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion after an evidentiary

hearing. We affirm.

I. Background

¶2 According to the evidence at trial, Nardi and J.B. were in a

romantic relationship for eight months. J.B. called 911 and

reported that Nardi had physically and sexually assaulted her the

night before. J.B. received a sexual assault examination, which

revealed DNA evidence consistent with J.B.’s story.

¶3 Nardi was charged with sexual assault, attempted second

degree assault, two counts of third degree assault, and false

imprisonment. The prosecution later added a violation of bail bond

conditions charge after Nardi missed a court date.

¶4 Nardi, who did not qualify as indigent, was initially

represented by private defense counsel John P. Van Ness. Nardi

signed a fee agreement providing that Van Ness would represent

Nardi in exchange for a $10,000 retainer, $2,500 to be paid on a

specific date, and $1,000 to be paid every two weeks starting on a

later date. The agreement, which was secured by a lien on Nardi’s

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car, specified that Van Ness would bill Nardi $250 per hour against

the retainer, and expenses greater than $30 were Nardi’s

responsibility, including expert witness fees.

¶5 A few months after Van Ness began representing Nardi, he told

Nardi that he would likely need to hire co-counsel for the trial, as

well as retain an investigator and expert witnesses. Nardi could not

afford these costs, and Van Ness moved to withdraw from the case.

¶6 A few weeks later, before the trial court acted on the

withdrawal request, Van Ness and Nardi signed an amended fee

agreement. They agreed that the current bill for legal services,

which exceeded the initial retainer, would be satisfied by the money

Nardi had already paid in addition to Nardi signing over title to two

vehicles. The amended fee agreement also provided, “In exchange

for 70% of any settlement or collected judgment against [J.B.], I

agree to provide legal services including defense of your four

criminal cases, and prosecution of a civil claim against [J.B.].” In

addition, Nardi and Van Ness agreed that if co-counsel was needed,

Van Ness would be responsible for paying them, but Nardi would be

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responsible for the likely required expert witness expenses, among

other expenses.

¶7 Van Ness later enlisted Colleen Scissors as co-counsel.

¶8 Approximately two weeks before the jury trial began, Van Ness

filed a motion requesting that the trial court order the state to pay

for the cost of expert witness fees pursuant to Chief Justice

Directive (CJD) 04-04, Appointment of State-Funded Counsel in

Criminal Cases and for Contempt of Court, § V(D) (amended July

2024). This CJD gives a trial court discretion to authorize state-

paid defense experts if “[t]he defendant is receiving private counsel

but becomes indigent during the course of the case, and the court

has determined that the defendant lacks sufficient funds to pay for

court costs, and that it would be too disruptive to the proceedings

to assign the Public Defender or Alternate Defense Counsel to the

case.” CJD 04-04, § V(D)(1)(c). The motion stated that Nardi had

been able to pay Dr. Robert Lantz, a serology expert,1 to date but

that Dr. Lantz’s estimated fee for testifying at trial was $7,000,

which Nardi was unable to pay.

1 Serology is the study of bodily fluids.

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¶9 The day before the jury trial began, Nardi filed an affidavit of

financial condition, in which he asserted he had been employed for

forty hours a week since the end of the previous year but because

the ski season had just ended his hours had dropped to twenty per

week. He requested that the state pay for the cost of the expert

witness fees at trial. The same day, the trial court found that Nardi

was indigent and was therefore eligible to have the state pay his

expert fees pursuant to CJD 04-04, but the court denied the motion

without prejudice to renew, noting that Nardi requested an amount

much greater than the maximum permitted under CJD 12-03,

which at the time set the maximum amount for state-paid expert

fees at $1,000. See CJD 12-03, Directive Concerning Court

Compensation of Expert Witnesses and Professionals Conducting

Mental Health Evaluations, Sanity Evaluations, and Competency

Evaluations, § I(D) (effective until July 1, 2015). Ten days into the

trial, after Nardi filed a renewed motion, the trial court ordered the

state to pay a total of $2,000 for Dr. Lantz’s expert fees, again

finding that Nardi was indigent but that it would be too disruptive

to appoint a public defender or alternate defense counsel to the

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case. Ultimately, Dr. Lantz did not testify on behalf of Nardi at trial

because he was unwilling to accept the state rate. No other expert

witness testified for Nardi.

¶ 10 The jury convicted Nardi on all counts. The court sentenced

him to an indeterminate term of eleven years to life for the sexual

assault conviction and three years for the attempted second degree

assault conviction in the custody of the Department of Corrections

with an additional one-year consecutive sentence on the bail bond

violation conviction. (On the remaining convictions, the court

imposed jail sentences to run concurrently with the attempted

assault sentence.)

¶ 11 Nardi’s conviction was affirmed on direct appeal, though the

division concluded that the trial court had used an incorrect

sentencing range for the sexual assault conviction and remanded

the matter for resentencing. People v. Nardi, (Colo. App. No.

14CA1643, Mar. 8, 2018) (not published pursuant to C.A.R. 35(e)).

After Nardi was resentenced, he filed a timely pro se Crim. P. 35(c)

motion, which was later supplemented by appointed counsel.

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Following an evidentiary hearing, the postconviction court denied

the motion.

¶ 12 Nardi appeals.

II. Standard of Review and Applicable Law

¶ 13 A postconviction court’s ruling on a Rule 35(c) motion after a

hearing presents a mixed question of fact and law. People v. Sharp,

2019 COA 133, ¶ 12. “We defer to the court’s findings of fact if they

have record support, but we review any legal conclusions de novo.”

Id. 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. Hardin, 2016 COA 175, ¶ 39.

¶ 14 When evaluating most claims of ineffective assistance of trial

counsel, we apply the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Ardolino v. People, 69 P.3d 73,

76 (Colo. 2003); People v. Long, 126 P.3d 284, 286 (Colo. App.

2005). To prevail on such a claim, a defendant must show that

(1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced him. Strickland, 466 U.S. at 686.

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¶ 15 To establish deficient performance, a defendant must prove

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

reasonableness.” Id. at 688. “[A] court must indulge a strong

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

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at

689 (citation omitted). To establish prejudice, a defendant must

show that there is a reasonable probability that, absent the errors,

“the result of the proceeding would have been different.” Id. at 694.

A postconviction court may reject an ineffective assistance of

counsel claim if the defendant fails to demonstrate either deficient

performance or prejudice. People v. Aguilar, 2012 COA 181, ¶ 9.

¶ 16 Strickland’s familiar standard, however, does not always

govern an ineffective assistance of counsel claim. In United States

v. Cronic, 466 U.S. 648, 658-61 (1984), the Supreme Court

identified three situations in which a defendant can prove

ineffective assistance of counsel without having to establish

prejudice: (1) there is a complete denial of counsel; (2) “counsel

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entirely fails to subject the prosecution’s case to meaningful

adversarial testing”; or (3) “although counsel is available to assist

the accused during trial, the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is so small that a

presumption of prejudice is appropriate.” See also Bell v. Cone, 535

U.S. 685, 695-96 (2002).

¶ 17 Another scenario in which prejudice is presumed is when a

defendant’s counsel labored under an actual conflict of interest.

West v. People, 2015 CO 5, ¶ 57; see also Cronic, 466 U.S. at 662

n.31 (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)). An

actual conflict is one that adversely affected counsel’s performance.

Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002).

[T]o show an adverse effect, a defendant must
(1) identify a plausible alternative defense
strategy or tactic that counsel could have
pursued, (2) show that the alternative strategy
or tactic was objectively reasonable under the
facts known to counsel at the time of the
strategic decision, and (3) establish that
counsel’s failure to pursue the strategy or
tactic was linked to the conflict.

West, ¶ 57.

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III. Analysis

¶ 18 Nardi contends that he established his ineffective assistance

claim under all three theories — an actual conflict of interest under

West, a prejudicial substandard performance under Strickland, and

the failure to subject the prosecution’s case to meaningful

adversarial testing under Cronic. We address and reject each claim.

A. West: Actual Conflict of Interest

¶ 19 Nardi claims that the contingency fee agreement created a

conflict of interest for his counsel. Specifically, he argues that

under the amended fee agreement, Van Ness would only get paid if

Nardi was acquitted and then recovered a judgment against J.B. in

a civil matter Nardi planned to file based on her purportedly false

allegations. Because Van Ness’s ability to get paid relied entirely on

Nardi’s exoneration, he argues, his counsel could not take any steps

— or advise Nardi to take any action — that might result in a

conviction even for a lesser offense. We discern no actual conflict of

interest.

¶ 20 As a threshold matter, we note that the postconviction court

found that Scissors, not Van Ness, was lead trial counsel. Nardi

does not challenge that finding. Recall that Van Ness was
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responsible for paying Scissors. There is nothing in the record to

suggest that Scissors would not get paid unless Nardi recovered a

civil judgment against J.B. Indeed, at the postconviction hearing,

Scissors testified that she did not learn of the contingent fee

agreement between Van Ness and Nardi until the commencement of

the postconviction proceedings. Thus, because Scissors was the

captain of the ship regarding trial strategies (including the decision

whether to tender a lesser included offense instruction) and she did

not labor under any conflict flowing from Nardi’s fee agreement with

Van Ness, Nardi’s claim that the failure to tender a lesser included

offense instruction ran afoul of West fails.

¶ 21 As to Nardi’s claim that Van Ness labored under an actual

conflict, we follow the postconviction court’s lead and assume,

without deciding, that the amended fee agreement created a conflict

of interest for Van Ness. We therefore turn to whether Nardi

showed an adverse effect resulting from that purported conflict.

¶ 22 Nardi identifies what he asserts are two plausible alternative

defense strategies that Van Ness could have, but did not, pursue:

(1) seeking a plea deal or conviction on lesser charges and

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(2) invoking Nardi’s indigency earlier to facilitate either Van Ness’s

replacement with a public defender or state funds to pay for an

expert witness.

¶ 23 The postconviction court found that it was not objectively

reasonable for Van Ness to initiate plea negotiations because Nardi

steadfastly maintained his innocence and even provided statements

to a newspaper proclaiming as much.

¶ 24 Relying on Carmichael v. People, 206 P.3d 800, 806 (Colo.

2009), Nardi argues that his innocence claims do not relieve his

counsel from the obligation to seek a plea agreement. But Nardi

ignores significant differences between Carmichael and this case.

There, notwithstanding the defendant’s protestation of innocence,

the defendant instructed his counsel to seek a plea agreement, and

his counsel and the prosecution were actively negotiating.

Carmichael, 206 P.3d at 807. To the contrary, here, no plea offer

was extended, and there is no evidence that Nardi ever instructed

Van Ness to pursue a plea offer.

¶ 25 Thus, Carmichael does not stand for the proposition to which

Nardi’s argument would inexorably lead: that an attorney must

11
always solicit a plea bargain or offer instructions on a lesser

included offense. Indeed, as the postconviction court noted, the law

in Colorado appears to be the opposite — defense counsel has no

duty to initiate plea negotiations when the defendant adamantly

maintains his innocence. See People v. Sherman, 172 P.3d 911,

913 (Colo. App. 2006).

¶ 26 The record supports the postconviction court’s finding that,

under the circumstances, counsel’s decision to forego pursuing a

plea bargain was objectively reasonable. Further, we note that the

postconviction court did not explicitly address Nardi’s argument

regarding Van Ness failing to offer a lesser included offense

instruction (most likely because it had concluded that Scissors, not

Van Ness, was responsible for the decision not to do so). But even

assuming it was Van Ness’s decision, the logic underpinning the

court’s resolution of the plea bargain issue — that pursuing that

path was objectively unreasonable in light of Nardi’s steadfast

claims of innocence — applies equally to the pursuit of a lesser

included offense conviction.

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¶ 27 As to Van Ness’s efforts to invoke Nardi’s indigency, the

postconviction court found that Van Ness pursued experts and

sought state funds to obtain an expert at trial. The court further

found that Nardi was not indigent until right before trial, implicitly

finding that it would not have been reasonable to try to replace Van

Ness with a public defender or obtain a state-funded expert before

that point.

¶ 28 Because the record supports the postconviction court’s factual

findings, we will not disturb them. And based on those findings, we

see no basis to disturb the postconviction court’s determination

that any conflict that might have flowed from the fee agreement did

not have an adverse effect on the representation. Thus, Nardi’s

West claim fails.

B. Strickland: Prejudicial Subpar Performance

¶ 29 In the alternative, Nardi contends that, even if there was no

actual conflict of interest, Van Ness and Scissors provided

ineffective assistance of counsel under the Strickland standard in

two ways: (1) the fee agreement fell below the standard of conduct,

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and (2) counsel failed to present expert testimony in serology and

DNA. Again, we disagree.

1. The Fee Agreement

¶ 30 Nardi argues that, because the fee agreement was in

derogation of Van Ness’s ethical obligations, it necessarily fell below

the standard of conduct. Even assuming this were true, however,

Nardi would need to establish prejudice to satisfy the Strickland

standard. But other than his argument that the agreement created

an actual conflict — which we have rejected — Nardi does not

explain how there is a reasonable probability that, but for the

existence of that agreement, the result of the proceeding would have

been different. See Strickland, 466 U.S. at 695. Thus, Nardi has

failed to establish prejudice on this claim.

¶ 31 Further, Nardi contends that the nature and effect of the fee

agreement caused him to be “prejudiced by the lack of effective

assistance of counsel because he was not able to make fully

informed decisions.” As we noted above, however, this conclusory

contention is belied by the fact that there was no decision to make

because no plea deal was offered. See People v. Villanueva, 2016

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COA 70, ¶ 68 (a conclusory allegation of prejudice is insufficient

under Strickland); cf. People v. Sudduth, 991 P.2d 315, 317 (Colo.

App. 1999) (concluding that the record belied the defendant’s

allegation that he was insufficiently advised and that the trial court

properly rejected the claim without a hearing).

¶ 32 Thus, the postconviction court did not err by denying this

claim.

2. Experts

¶ 33 The postconviction court concluded that the decision not to

present testimony from a DNA expert at trial was not deficient

performance. The court also found that defense counsel consulted

with a serology expert. And the court concluded that Nardi was not

prejudiced.

¶ 34 Defense counsel has final authority to make decisions that are

regarded as strategic or tactical in nature. Arko v. People, 183 P.3d

555, 558 (Colo. 2008). Such decisions include whether to consult

or retain an expert. People v. Smith, 2022 COA 56, ¶ 30, rev’d,

2024 CO 3. And the postconviction court found, with record

support, that the crux of the defense was the presence or absence

15
of saliva, not DNA. Thus, prioritizing a serology expert over a DNA

expert was a reasonable strategic choice.

¶ 35 As to the serology expert, Nardi contends that Van Ness was

unwilling to pay for Dr. Lantz’s services out of pocket or to advance

funds. We agree with the postconviction court that this was not

ineffective assistance of counsel. And Nardi does not cite any

authority, nor are we aware of any, suggesting that a private

defense attorney must pay for an expert witness when the

defendant cannot.

¶ 36 Nardi next contends that Van Ness failed to withdraw from the

case or timely request state funds to pay for a serology expert, even

though Van Ness had information that Nardi would be unable to

pay for the expert himself. Again, the district court found, with

record support, that Nardi did not become indigent until shortly

before trial and that Van Ness requested that the state pay for the

serology expert at that time.

¶ 37 Nardi next contends that even after filing the motion

requesting a state-funded expert, Van Ness failed to request a

hearing on an expedited basis in order to find an available expert to

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work for the amount authorized by the court. And he contends that

Phillip Danielson, an expert in “forensic biology DNA,” had relevant

expertise and was willing to work for the state rate.

¶ 38 Even assuming, without deciding, that this was ineffective

assistance of counsel, Nardi does not show how he was prejudiced.

Nardi contends that Dr. Danielson would have testified that there

was DNA from at least one male other than Nardi in the areas that

J.B. said Nardi had touched or spit on her: J.B.’s eyelid, neck, and

genitalia. At the postconviction hearing Dr. Danielson testified that

the vaginal swab had DNA from only one male on it, and this DNA

profile matched Nardi’s. And Dr. Danielson testified that it was not

uncommon to find people’s DNA on exposed parts of the body, such

as the neck and eyelids. Not only is part of Nardi’s allegation belied

by the record, but Nardi does not explain how admitting testimony

about the presence of DNA from someone other than Nardi on J.B.’s

neck and eyelids — both exposed body parts — would have changed

the outcome of the trial. See People v. Phipps, 2016 COA 190M,

¶ 36; People v. McDowell, 219 P.3d 332, 340 (Colo. App. 2009); see

also Villanueva, ¶ 67 (“At this stage in the proceedings, [the

17
defendant] must do more than simply allege that other evidence

could have aided his defense; he must identify the evidence and

demonstrate that it would have advanced his defense.”).

¶ 39 Thus, the postconviction court did not err by denying this

claim.

C. Cronic: Meaningful Adversarial Testing

¶ 40 Finally, relying on Cronic, Nardi contends that prejudice

should be presumed because counsel did not subject the

prosecution’s case to meaningful adversarial testing. In particular,

Nardi argues that counsel failed to (1) hire an investigator; (2) file a

CRE 404(b) motion (or warn co-counsel about the lack of filing one);

(3) request a continuance when Nardi was sick at the time he was

supposed to testify; and (4) understand the consequences of not

getting an expert (and not getting an expert to testify). We disagree.

¶ 41 As discussed, the Cronic presumption applies when counsel

completely fails to subject the prosecution’s case to meaningful

adversarial testing, thereby making the adversary process itself

presumptively unreliable. Cronic, 466 U.S. at 659; see also

Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009) (preventing

18
defendant from presenting evidence caused a failure of the

adversarial process); Bell, 535 U.S. at 697 (Under Cronic, “the

attorney’s failure [to test the prosecutor’s case] must be complete.”).

In contrast, a claim relying on trial counsel’s specific errors must be

reviewed under Strickland’s two-prong test. Cronic, 466 U.S. at 666

n.41.

¶ 42 Nardi’s argument is not that Van Ness failed to oppose the

prosecution’s case throughout the case; instead, he challenges

specific instances of counsels’ allegedly deficient performance. See

Bell, 535 U.S. at 697. Such claims are governed by Strickland not

Cronic. Cronic, 466 U.S. at 666 n.41. Indeed, in its oral ruling, the

postconviction court correctly noted that the thrust of Nardi’s claim

was properly characterized as a Strickland claim.

¶ 43 To the extent Nardi attempts to assert a Cronic claim, there is

no basis on this record to conclude that either Van Ness or Scissors

entirely failed to subject the prosecution’s case to meaningful

adversarial testing. And to the extent his claim actually falls under

the Strickland rubric, Nardi is required to establish prejudice. But

his assertions of how these specific purported failings by counsel

19
prejudiced him are conclusory and insufficient. See Villanueva,

¶ 68. Thus, the postconviction court did not err by denying this

claim.

IV. Disposition

¶ 44 The order is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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