19CA1377 Peo v Ray 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1377
Adams County District Court Nos. 13CR2104, 13CR3054 & 14CR2609
Honorable Priscilla J. Loew, Judge
Honorable Donald S. Quick, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dexter Keith Ray,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE HARRIS
Navarro and Freyre, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant
1
¶ 1 Dexter Keith Ray appeals the district court’s summary denial
of his Crim. P. 35(c) motions. We affirm.
I. Background
¶ 2 In 2013 and 2014, Ray was charged with committing the
following offenses in three separate criminal cases in which his wife
was the primary victim:
• 13CR2104 – July 2013: sexual assault, third degree assault,
child abuse, violation of a protection order, and obstruction of
a telephone or telegraph service;
• 13CR3054 – October 2013: tampering with a witness or victim
and violation of a protection order; and
• 14CR2609 – September 2014: second degree burglary, third
degree assault, three counts of child abuse, and violation of a
protection order.
¶ 3 The parties agreed to a global disposition of all three cases.
Pursuant to that agreement, Ray pleaded guilty in the 2013 cases
(which had previously been joined) to one count of attempted sexual
assault and one count of conspiracy to commit witness or victim
tampering, both class 5 felonies, and, in the 2014 case, to one
2
count of first degree criminal trespass, a class 5 felony, and three
counts of misdemeanor child abuse.
¶ 4 The case proceeded to sentencing in March 2015. Because
Ray had pleaded guilty to a sex offense, the court ordered that an
offense specific psychological evaluation be conducted in addition to
a presentence investigation report (PSI). The offense specific
evaluation does not appear to be in the record, but the court
discussed it at the sentencing hearing. The court specifically noted
that Ray had provided a lengthy statement in which he
“acknowledge[d] that there was a sexual assault” and “g[ave] an
explanation for it.” As a result, the court discounted the victim’s
statement at the hearing that Ray had not sexually assaulted her:
“No matter how much [the victim] stands here repeatedly and says
it didn’t happen, the fact is Mr. Ray says it did.” The court also
recognized that Ray had “mental health issues” that were “no
doubt” connected to “a horrific childhood.” After carefully
considering all of the circumstances, the court sentenced Ray to
concurrent three-year terms of imprisonment in the 2013 cases,
and a consecutive three-year term of imprisonment in the 2014
case.
3
¶ 5 Through counsel, Ray then filed a Crim. P. 35(b) motion for
reconsideration of his sentences. The motion reiterated that Ray
had admitted to the assault, had acknowledged that he “could
benefit from ‘sexual misconduct’ treatment,” and had endured a
traumatic childhood resulting in mental health issues. The court
denied the motion, finding that it had considered all relevant
information at the sentencing hearing and that the original
sentence was appropriate.
¶ 6 In October 2017 and August 2018, Ray filed two pro se Crim.
P. 35(c) motions.
1
The first motion, submitted on a preprinted form,
alleged only that “[at the sentencing hearing, the] alleged victim told
the court that I did not commit [the] crimes of 13CR2104,
13CR3054, and 14CR2609.” In response to the question, “If you
did not appeal, briefly explain why you did not,” Ray wrote,
1
The district court initially denied Ray’s Crim. P. 35(c) motions as
untimely, but later rescinded that order after realizing that Ray had
filed his initial motion within the three-year deadline for challenging
a felony conviction. The court did not address the fact that Ray
appeared to be challenging the validity of his misdemeanor child
abuse convictions as well. A collateral attack on a misdemeanor
conviction must be filed within eighteen months of the entry of
judgment — or, in Ray’s case, by September 3, 2016. See § 16-5-
402(1), C.R.S. 2021. Accordingly, we construe Ray’s Rule 35(c)
motions to challenge only his felony convictions.
4
“Because I took a plea deal before the victim addressed the court on
03/03/15.”
¶ 7 The second motion raised additional claims as follows:
• Counsel failed to “admit evidence” of a notarized letter
written by the victim in which she recanted her earlier report to
police and asserted that while Ray had hit her, he had not sexually
assaulted her.
• Counsel failed to take some unspecified action with respect
to a 911 call in which the victim recanted accusations related to the
charges in 14CR2609.
• The victim’s letter constituted newly-discovered evidence.
• At some point during the pendency of the case, the victim
appeared at counsel’s office and acted “belligerent and threatening,”
thereby creating “an actual conflict of interest.”
• Counsel failed to inform Ray that he could appeal the trial
court’s denial of the Rule 35(b) motion.
• Counsel failed to inform Ray that he could directly appeal his
conviction.
5
• Counsel instructed Ray not to deny the sexual assault
accusations during his PSI interview or he would “definitely be
denied any possibility of community corrections or probation.”
• Counsel coerced Ray into accepting the plea deal by advising
him that if he went to trial and lost, he could face up to sixty-four
years in prison.
¶ 8 Later, appointed counsel filed a supplemental Rule 35(c)
motion, alleging that Ray “was coerced into pleading guilty to
attempted sexual assault” because his public defender failed to
“provide exculpatory evidence” — the letter from the victim — to the
prosecutor during plea negotiations. As postconviction counsel
explained, Ray “expected his public defender to show the . . . letter
from [the victim] to [the prosecutor] in order to secure a dismissal of
the sexual assault count.” But when the public defender did not
use the letter during plea negotiations, “in his mind,” Ray believed
that counsel would not use the letter at trial either, and so he had
to plead guilty or “risk going to trial without an adequate defense.”
¶ 9 The postconviction court summarily denied Ray’s
postconviction motions. With respect to the primary claim — that
counsel was ineffective for failing to use the victim’s letter during
6
plea negotiations — the court concluded that trial counsel had
made a reasonable strategic decision to forgo using the letter
because it had “little to no exculpatory value” and, in fact, might
support the theory that Ray was controlling and abusive in his
relationship with the victim. As for the remaining claims, the court
found that the allegations were conclusory or that, even if true, they
did not state a claim for relief.
II. Discussion
¶ 10 On appeal, Ray contends that the district court erred by
denying his postconviction motions without a hearing. We disagree.
Though our reasoning differs in certain respects from that of the
App. 2011) (appellate court may affirm district court’s ruling on any
ground supported by the record), we agree with the court’s
conclusion that Ray’s motions fail to state a claim for postconviction
relief.
A. Legal Principles and Standard of Review
¶ 11 To prevail on a claim of ineffective assistance of counsel, the
defendant must show that (1) counsel’s performance was deficient,
meaning it fell below an objective standard of reasonableness; and
7
(2) the deficient performance prejudiced the defendant, meaning
there is a reasonable probability that, but for counsel’s errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984). To establish prejudice after a guilty
plea, the defendant must show that if counsel had performed
competently, he would have rejected the plea offer and insisted on
going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). If a
defendant fails to establish either prong of the Strickland test, he is
not entitled to relief. People v. Osorio, 170 P.3d 796, 800 (Colo.
App. 2007).
¶ 12 A postconviction motion alleging ineffective assistance of
counsel may be denied without a hearing if the defendant’s
allegations are bare and conclusory; the allegations, even if true, do
not establish deficient performance or prejudice; or the record
refutes the defendant’s claims directly. People v. Duran, 2015 COA
141, ¶ 9.
¶ 13 We review de novo the summary denial of a Rule 35(c) motion.
People v. Lopez, 2015 COA 45, ¶ 68.
8
B. The Postconviction Motions Fail to State a Claim
¶ 14 On appeal, Ray reasserts five of the claims raised in his Rule
35(c) motions. (Any claims raised in the motions but not reasserted
on appeal are deemed abandoned. See People v. Delgado, 2019
COA 55, ¶ 11 n.3.) He contends that counsel was ineffective for (1)
failing to use the victim’s letter during plea negotiations; (2)
coercing him to plead guilty by advising him of his sentencing
exposure; (3) failing to advise him that he had a right to appeal his
convictions; (4) failing to advise him that he had a right to appeal
the denial of his Rule 35(b) motion; and (5) representing him despite
an actual conflict of interest.
1. Failure to Use the Victim’s Letter
¶ 15 Ray argues, as he did in his supplemental Rule 35(c) motion,
that counsel’s performance was deficient because she failed to
“utilize available exculpatory evidence during plea negotiations or
formulation of a theory of defense showing Mr. Ray did not sexually
assault his wife.” Counsel’s failure to use the letter prejudiced him,
Ray says, because it “caused [him] to lose all confidence in his
attorney and plead guilty.”
9
¶ 16 We discern at least two problems with this claim. First, Ray’s
allegation is that counsel’s deficient performance caused him to lose
confidence in counsel’s commitment to “unveil[ing] the truth,”
which, in turn, caused him to plead guilty. But under Strickland’s
test, the lawyer’s deficient performance must itself cause the
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding”; instead, the
defendant must show that “but for counsel’s unprofessional errors,”
the outcome would have been different”).
¶ 17 Ray’s allegation of prejudice, which turns on his own
subjective beliefs about his lawyer’s commitment to the case, is
simply too attenuated from the lawyer’s alleged deficient
performance. See, e.g., Soto-Beltran v. United States, 946 F. Supp.
2d 312, 318 (S.D.N.Y. 2013) (counsel’s alleged deficient
performance in failing to secure a plea offer allowing for cooperation
was too attenuated from defendant’s claim of prejudice that he
failed to get a cooperator’s sentencing benefit). There is direct and
logical prejudice that flows from an allegation that counsel failed to
share exculpatory evidence with the prosecutor during plea
10
negotiations: that the plea offer was not as favorable as it should
have been and, if counsel had performed competently, the
defendant would have accepted an offer of a shorter sentence. But
Ray does not make that argument because it does not satisfy the
prejudice requirement that goes with his claim. He has to show
that in the absence of counsel’s error, he would have rejected any
plea offer and gone to trial. As a result, he is forced to devise a
theory of prejudice that simply fails to connect sufficiently to
counsel’s alleged deficient performance.
¶ 18 Second, the claim amounts to an allegation that counsel had a
contrary view of the utility of the victim’s letter and, as a result, Ray
felt compelled to plead guilty. But disagreements about defense
strategy alone do not support a claim of ineffective assistance of
counsel. See People v. Apodaca, 998 P.2d 25, 29 (Colo. App. 1990).
We must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” and
the defendant “must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
Ray did not allege any facts that, if true, would overcome the
11
presumption. For example, he did not allege that counsel’s failure
to use exculpatory evidence was based on a lack of investigation.
See Fisher v. Gibson, 282 F.3d 1283, 1296 (10th Cir. 2002) (where
counsel has utterly failed to prepare or investigate, she cannot rely
on a claim of strategy to show that her conduct was not deficient).
To the contrary, he acknowledged that his lawyer directed an
investigator to interview the victim, and counsel then shared the
letter and the notes of the interview with Ray at the jail.
¶ 19 In his reply brief, Ray argues that even if the victim’s recanting
letter was so unreliable as to be useless, counsel was nonetheless
ineffective for failing to sufficiently explain her reasons for not
presenting it to the prosecutor. This argument depends on the
same attenuated theory of prejudice: without a sufficient
explanation, a defendant might feel so ignored by his lawyer that he
would feel compelled to plead guilty. But the merits of an
ineffective assistance of counsel claim cannot turn on the
psychological fortitude of a particular defendant. A lawyer’s
performance is only deficient if it is objectively unreasonable. See
People v. Terry, 2019 COA 9, ¶ 25. In any event, Ray did not allege
in any of his postconviction motions that counsel was ineffective for
12
failing to communicate her reasons for not using the victim’s letter,
so we do not consider that argument on appeal. See People v.
Stovall, 2012 COA 7M, ¶ 3 (allegations not raised in the Rule 35(c)
motion or during a hearing on the motion are not properly
preserved and may not be raised for the first time on appeal).
¶ 20 Accordingly, we conclude that the district court properly
denied this claim without a hearing.
2. Advisement Regarding Possible Sentence
¶ 21 Next, Ray argues that he was coerced into pleading guilty
because counsel warned him that he could face a sixty-four-year
sentence if he were convicted of the original charges after a trial.
Because Ray has failed to allege deficient performance, this claim
fails.
¶ 22 Counsel has a duty to inform a client about the risks of going
to trial, which includes advice about the maximum potential
sentence. See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009)
(counsel’s performance was deficient where counsel failed to inform
his client that he would face indeterminate life sentences if he
proceeded to trial). Ray does not allege that counsel’s advisement
was inaccurate. Instead, in his motions, he implied only that the
13
threat of a long sentence induced his guilty plea, rendering it
involuntary. The Supreme Court, however, has “rejected the
argument that a guilty plea is invalid whenever motivated by the
defendant’s desire to accept the certainty or probability of a lesser
penalty rather than face a wider range of possibilities extending
from acquittal to conviction of a more serious crime.” People v.
McCormick, 881 P.2d 423, 427 (Colo. App. 1994) (citing Brady v.
719 S.W.2d 479, 481 (Mo. Ct. App. 1986) (“For counsel to predict
the possibility of a lengthy sentence following a jury trial does not
amount to a coerced and involuntary plea.”).
¶ 23 On appeal, Ray therefore raises a new argument,
hypothesizing that counsel’s “demeanor, tone of voice, or method of
communication” may have placed “undue pressure” on him to plead
guilty. True, a guilty plea is involuntary and therefore invalid if it is
obtained “by actual or threatened physical harm or by mental
coercion overbearing the will of the defendant.” Brady, 397 U.S. at
750; see also Sanchez-Martinez v. People, 250 P.3d 1248, 1255
(Colo. 2011) (A guilty plea is not valid if it is the product of “such
factors as misunderstanding, duress, or misrepresentation by
14
others.” (quoting Blackledge v. Allison, 431 U.S. 63, 75 (1977)). But
in his motions, Ray did not allege that his lawyer’s demeanor, tone
of voice, or manner of communication overbore his will. A
defendant is not entitled to an evidentiary hearing to try to develop
new theories or claims; he is entitled to a hearing only if he
“allege[s] facts that, if proven, would entitle him to postconviction
relief.” White v. Denver Dist. Ct., 766 P.2d 632, 636 (Colo. 1988).
¶ 24 Moreover, the record refutes any suggestion that counsel
threatened or coerced Ray into accepting the global plea deal that
greatly reduced his sentencing exposure. During the providency
hearing, Ray unequivocally affirmed that he was entering his guilty
pleas “knowingly and voluntarily.” He told the court that no one
had “forc[ed] [him] or put[] any pressure upon” him to enter his
pleas. While a defendant’s colloquy with the court at the
providency hearing is not necessarily dispositive of the validity of
his or her guilty plea, see, e.g., People v. Morones-Quinonez, 2015
COA 161, ¶ 17, the appellate court can consider the defendant’s
statements at the providency hearing in determining whether an
evidentiary hearing is warranted, see People v. Canody, 166 P.3d
218, 220 (Colo. App. 2007).
15
¶ 25 Based on the lack of factual allegations in the motions and
Ray’s statements at the providency hearing, we conclude that the
court properly denied the claim of coercion without a hearing.
3. Right to Direct Appeal
¶ 26 Third, Ray argues that counsel was ineffective for failing to
advise him of his right to a direct appeal. Here, too, he has failed to
allege deficient performance or prejudice with sufficient specificity.
¶ 27 Counsel’s failure to file a notice of appeal is not necessarily
deficient so long as counsel has not disregarded specific
instructions from a defendant. Roe v. Flores-Ortega, 528 U.S.470,
478 (2000). When counsel receives no instruction from the
defendant on whether to file or forgo an appeal, the question is
whether counsel has a duty to consult with the defendant about his
appeal rights. Id. That duty arises only when counsel has a reason
to think that (1) a rational defendant would want to appeal
(because, for example, there are nonfrivolous grounds for appeal) or
(2) the particular defendant is interested in appealing. Id. at 480.
¶ 28 Thus, it is not enough for Ray to state only that his lawyer did
not advise him of his right to appeal. On its own, that failure does
not constitute deficient performance. To sufficiently allege deficient
16
performance, Ray had to assert that his lawyer had a duty to
consult with him about his appeal rights, either because there were
nonfrivolous grounds for a direct appeal despite his guilty plea, see
Laycock v. State, 880 F.2d 1184, 1188 (10th Cir. 1989) (“Normally,
when a defendant pleads guilty, he has foreclosed his right to
appeal.”), or because he indicated some interest in appealing. He
has asserted neither.
¶ 29 Nor has he alleged any prejudice from counsel’s failure to
advise him of his rights. To establish prejudice, a defendant must
demonstrate “that, but for counsel’s deficient conduct, he would
alleged that if counsel had consulted with him, he would have
directly appealed his convictions. In fact, on his preprinted
postconviction form, he explained that he did not file a direct appeal
not because he was unaware of his rights, but because he pleaded
guilty before the victim addressed the court at sentencing.
¶ 30 Thus, Ray’s allegations, even if true, are insufficient to state a
claim for relief, and the district court properly denied this claim
without a hearing.
17
4. Right to Appeal Crim. P. 35(b) Motion
¶ 31 In his next claim, Ray alleges that counsel was ineffective for
failing to advise him of his right to appeal the denial of his Rule
35(b) motion. This claim fails on the prejudice prong.
¶ 32 Defendants have only a limited right to appeal the denial of a
motion for reconsideration of a sentence. See People v. Barnett,
2020 COA 167, ¶ 31. The propriety of the sentence is not subject to
review; rather, the order is reviewed to “determine if the
postconviction court failed to exercise its judicial discretion by
refusing to consider any information in mitigation.” Id.
¶ 33 Ray did not allege that he was entitled to a review of the order
denying his Rule 35(b) motion because the court had failed to
properly exercise its discretion or refused to consider mitigating
evidence. Nor did he allege that he would have filed an appeal of
the order if his lawyer had advised him of his appeal rights. And
the record shows that the Rule 35(b) motion advanced arguments
expressly considered by the court at sentencing.
¶ 34 Thus, this claim, too, was properly denied without a hearing.
5. Conflict of Interest
18
¶ 35 Finally, Ray argues that counsel was ineffective because she
“labor[ed] under a conflict of interest.” The allegations with respect
to this claim are conclusory.
¶ 36 In his motions, Ray alleged that a conflict of interest arose
after the victim showed up at counsel’s office and acted in a
belligerent and threatening manner. But he did not explain the
nature of the conflict or how it supposedly affected counsel’s
performance.
¶ 37 On appeal, it is not even clear what kind of a conflict Ray
contends is at issue — whether counsel had an actual conflict of
interest based on divided loyalties, see, e.g., West v. People, 2015
CO 5, ¶ 16, or whether counsel had a conflict with Ray that
resulted in a complete breakdown in communication, see People v.
Bergerud, 223 P.3d 686, 694 (Colo. 2010) (differentiating between a
conflict of interest and complete breakdown in communication
between counsel and the defendant).
¶ 38 In any event, his motions did not allege any facts that would
establish either kind of conflict. Without additional factual
allegations, the claim is too conclusory to warrant a hearing.
19
¶ 39 For the first time on appeal, Ray asserts that the victim’s
conduct “raises the concern” that counsel might have “wished to
end representation of Mr. Ray in order to prevent future
disturbances,” and would have been “predisposed to seeking a plea
agreement.” That argument is still insufficient. For one thing, it is
hypothetical — Ray does not allege that his lawyer was so affected
by the victim’s conduct that she wanted to end the representation.
Instead, he says that the circumstances raise this concern. The
argument also lacks any allegation that counsel’s wish to “end [the]
representation” and “seek[] a plea agreement” prejudiced Ray. Ray
ultimately accepted the plea offer, so the existence of prejudice is
not obvious.
¶ 40 Accordingly, we agree with the district court that Ray’s claim
of a conflict of interest is vague and conclusory and therefore does
not warrant a hearing.
III. Conclusion
¶ 41 The order is affirmed.
JUDGE NAVARRO and JUDGE FREYRE concur.
