19CA1043 Peo v Najera 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1043
Jefferson County District Court No. 15CR2261
Honorable Tamara S. Russell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Onesia Ann Najera,
Defendant-Appellant.
ORDER AFFIRMED
Division VII
Opinion by JUDGE GROVE
Navarro and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Onesia Ann Najera, Pro Se
1
¶ 1 Defendant, Onesia Ann Najera, appeals the postconviction
court’s order denying her Crim. P. 35(c) motion. We affirm.
I. Background
¶ 2 In 2015, Najera was charged with two counts of child abuse
resulting in death after her disabled grandchild, who was in her
care, drowned in a bathtub. As part of a plea agreement with the
prosecution, she pleaded guilty to an added count of child abuse
resulting in death pursuant to section 18-6-401(1)(a), (7)(a)(II),
C.R.S. 2021. The original counts were dismissed.
¶ 3 The presumptive sentencing range for Najera’s conviction was
four to sixteen years, but as part of the plea agreement she
stipulated to an aggravated range sentence with a twenty-year
sentencing cap. The trial court sentenced her to a term of twenty
years in the custody of the Department of Corrections.
¶ 4 Najera did not directly appeal her conviction, but she
subsequently filed the timely Crim. P. 35(c) motion that is the
subject of this appeal. The postconviction court denied the motion
in a written order without appointing counsel, serving the motion
on the prosecuting attorney, or holding a hearing. See Crim. P.
35(c)(3).
2
II. Analysis
¶ 5 Najera’s opening brief identifies seven issues for our review.
As we discuss further below, we decline to consider one of them
(Issue 6) because Najera did not raise it in her postconviction
motion. We group Najera’s remaining arguments into four main
categories: (1) arguments related to whether the trial judge should
have recused herself (Issue 1); (2) arguments related to her sentence
(Issues 2-4); (3) arguments related to the voluntariness of her plea
(Issue 5); and (4) arguments related to defense counsel’s
investigation (Issue 7). To the extent that Najera raises sub-issues,
we address them as part of the main category where the argument
appears in the opening brief.
A. Standard of Review and Applicable Law
¶ 6 We review de novo a postconviction court’s summary denial of
a postconviction motion. People v. Trujillo, 169 P.3d 235, 237 (Colo.
App. 2007).
¶ 7 “In order to prevail on an ineffective assistance of counsel
claim, a defendant must prove that 1) counsel’s performance was
deficient and 2) the deficient performance prejudiced the defense.”
Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing
3
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “An ineffective
assistance claim will not succeed if a defendant fails to prove either
prong of the test.” People v. Villarreal, 231 P.3d 29, 33 (Colo. App.
2009), aff’d on other grounds, 2012 CO 64.
¶ 8 A defendant is entitled to an evidentiary hearing on her motion
when she alleges facts that, if true, would entitle her to relief under
Rule 35(c). White v. Denver Dist. Ct., 766 P.2d 632, 634-35 (Colo.
1988). But a district court may deny a Rule 35(c) motion without a
hearing when the defendant’s allegations are bare and conclusory;
when the allegations do not warrant postconviction relief, even if
true; when the claims raise only an issue of law; or when the record
directly refutes the defendant’s allegations. People v. Venzor, 121
P.3d 260, 262 (Colo. App. 2005).
B. Unpreserved Claim
¶ 9 For the first time on appeal, Najera asserts that the prosecutor
committed misconduct by “knowingly suppl[ying] false information
onto an official document and that this document was signed an[d]
accepted by the Court making it part of Ms Najera’s perman[en]t
court record and that the Prosecution did this for the sole purpose
of prejudicing the Defendant.” Najera concedes that she did not
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raise this issue in her postconviction motion, but states that she
failed to do so because she “had not yet reviewed the Court record
of her case.”
¶ 10 We will not consider for the first time on appeal issues that
were not raised in the underlying Crim. P. 35(c) motion. People v.
Huggins, 2019 COA 116, ¶ 17. Because Najera concedes she did
not raise this claim in her postconviction motion, we do not
consider it further.
C. Recusal
¶ 11 Najera contends that she was entitled to postconviction relief
because her attorney provided ineffective assistance by failing to
move to disqualify the trial judge and, notwithstanding defense
counsel’s failure to file such a motion, the trial judge did not recuse
herself sua sponte. She alleged in her postconviction motion that
the trial judge should have recused herself because the judge had
presided over two previous criminal cases involving the victim and
his mother (Najera’s daughter), and that defense counsel should
have filed a motion to disqualify the judge after Najera informed
counsel of this history.
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¶ 12 The postconviction court, with the same judge sitting who had
presided over the plea proceedings, ruled that it was unnecessary to
hold a hearing on this claim for two reasons. First, the cases in
question occurred seven and ten years before charges were filed in
this case, and the judge had no memory of them, and second, what
a judge learns in her judicial capacity is generally not sufficient
grounds for disqualification. See, e.g., Smith v. Dist. Ct., 629 P.2d
1055, 1057 (Colo. 1981). The court thus concluded that Najera
could not have been prejudiced by defense counsel’s failure to move
for disqualification.
¶ 13 We agree with this ruling. Without more, the fact that the trial
judge had presided over two cases involving criminal charges
against the child’s mother several years earlier would not have
established grounds for disqualification. Thus, as the
postconviction court concluded, a motion to disqualify the trial
judge on the grounds that Najera recites in her postconviction
motion and on appeal would have been bound to fail. And because
any such efforts would have been fruitless, Najera was not
prejudiced by defense counsel’s decision not to pursue
disqualification.
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D. Sentence
¶ 14 Najera raises three arguments related to her sentence. We
address each in turn below.
1. Aggravation
¶ 15 First, Najera asserts that the trial court “abuse[d] its discretion
when it applied unknown ‘caselaw’ against the defendant for the
purpose of aggravating the defendant without having to put forth
any facts or evidence on the record that would support a sentence
in the aggravated range.” This appears to be an “illegal manner”
claim. See People v. Bowerman, 258 P.3d 314, 316 (Colo. App.
2010) (holding that a sentence is imposed in an illegal manner if the
court ignores essential procedural rights or statutory considerations
when imposing the sentence). If so, it is time barred because it was
not filed within 126 days of sentencing. See Crim. P. 35(a), (b)(1).
¶ 16 Even if it were not time barred, however, Najera’s argument
would fail on the merits. The record demonstrates that she
stipulated to the presence of aggravating circumstances as part of
her written plea agreement and again on the record at the
providency hearing. Notwithstanding the fact that the prosecutor
did not have a precise citation to the relevant case law until the end
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of the hearing, Najera’s stipulation was sufficient to support her
aggravated range sentence. See People v. Shepard, 98 P.3d 905,
906 (Colo. App. 2004).
2. Blakely Requirements
¶ 17 Next, Najera contends that her sentence is unconstitutional
because the court did not put on the record the Blakely-compliant
or Blakely-exempt facts that it used “for the purpose of imposing a
sentence in the aggravated range.” See Blakely v. Washington, 542
U.S. 296 (2004).
¶ 18 If the trial court imposes a sentence in the aggravated range, it
is generally required to state on the record the facts that support
the aggravated range sentence. § 18-1.3-401(7), C.R.S. 2021.
Under Blakely, aggravated sentencing under 18-1.3-401(6) may
only be based on at least one of four kinds of facts, including facts
admitted by the defendant. Lopez v. People, 113 P.3d 713, 719
(Colo. 2005) (discussing Blakely requirements). Here, as noted,
Najera stipulated to the existence of aggravating facts. And “where
. . . the defendant stipulates to a sentence in the aggravated range
as part of a plea agreement, the defendant is also stipulating that
sufficient facts exist to warrant an aggravated sentence, and the
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trial court need not make additional findings on the record.”
Shepard, 98 P.3d at 906.
3. Advisement
¶ 19 Najera’s last sentence-related contention is that “she was not
given [a] proper advisal by the Trial Court of her right to have a jury
determine the aggravating fact(s) of her case, and Ms. Najera did
not verbally waive that right before the court.” This claim is refuted
by the record. In her “Petition to Enter Plea of Guilty,” Najera
confirmed that she was stipulating to the existence of extraordinary
aggravating circumstances and “agree[ing] to waive [her] right to
have a jury make a determination of extraordinary aggravation.”
Likewise, at the providency hearing, the trial court advised Najera
that if she “decide[d] to take the plea agreement . . . then you’re
waiving your right to trial.” And, discussing the stipulation, the
court informed Najera that it meant that she was “agreeing to the
existence of extraordinary aggravating circumstances, and . . .
asking that the Court make a finding of extraordinary aggravating
circumstances, and . . . waiving [her] right to have a jury make that
determination.” Because Najera confirmed that she understood the
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rights that she was giving up in exchange for her plea agreement,
she is not entitled to postconviction relief on this claim.
E. Voluntary Plea
¶ 20 Najera contends that her attorneys were ineffective because
they “allow[ed] the Prosecution to threaten the defendant with other
unrelated charges if the defendant didn’t agree to stipulate to
aggravation.” As we understand the argument, Najera alleges that
after the prosecution backed away from an early, more lenient offer,
she felt pressured into taking a less favorable plea bargain by the
possibility of a more severe sentence at trial and a threat that the
prosecutor would charge Najera’s daughter with offenses in an
unrelated case.
¶ 21 Even if these allegations are true, they do not suggest deficient
performance on the part of defense counsel. All defense counsel
allegedly did was to communicate the conditions of the
prosecution’s plea offer — conditions that only the prosecution
could dictate — to Najera. By candidly relaying that information
and counseling Najera as to pros and cons of accepting the plea
offer, Najera’s attorneys performed exactly as they should have.
10
¶ 22 Moreover, Najera’s claim of coercion is refuted by the record.
At the providency hearing, she denied that “anyone [had] tried to
force [her] or coerce [her] to say guilty today,” stated that it was her
“free and voluntary decision to plead guilty,” and said that she had
chosen to do so because she wanted to “accept[] responsibility” for
her actions, and not just avoid trial. Accordingly, because the
voluntariness of her plea is established by the record, the
postconviction court correctly declined to hold a hearing on this
claim.
1
F. Investigation
¶ 23 Last, Najera contends that her attorneys were ineffective for
failing to conduct an adequate investigation of the facts and
circumstances surrounding the charged offense.
¶ 24 Criminal defendants are entitled to sufficiently thorough
pretrial investigations “to develop potential defenses and uncover
1
To the extent that Najera argues on appeal that the trial court
“altered Ms. Najera’s plea agreement after Ms. Najera signed it” and
that the court improperly participated in the plea bargaining
process, we decline to address these issues because Najera did not
raise them in her postconviction motion. See People v. Huggins,
2019 COA 116, ¶ 17.
11
facts relevant to guilt and punishment.” People v. Davis, 849 P.2d
857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see
Davis, 871 P.2d at 773 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.”). When reviewing a claim of
ineffective assistance, the court must evaluate counsel’s alleged
failure to investigate for reasonableness, “applying a heavy measure
of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.
However, mere disagreement as to trial strategy, including what to
investigate, will not support a claim of ineffective assistance. Davis,
1999).
¶ 25 “A defendant is entitled to pretrial investigation sufficient to
reveal potential defenses and facts relevant to guilt or penalty.”
People v. Pendleton, 2015 COA 154, ¶ 33. But mere speculation
about what information a different investigative approach may have
yielded is insufficient to establish ineffective assistance. Id. at ¶ 34.
¶ 26 We are not persuaded that Najera should have received a
hearing based on her claim that defense counsel failed to conduct
an adequate pretrial investigation “relative to Count One,” as she
12
argues in her opening brief — not least because Count One was
dismissed as part of her plea agreement. But even if we read
Najera’s contentions more broadly, she is still not entitled to a
hearing for at least two reasons.
¶ 27 First, as the postconviction court pointed out, although the
claim of inadequate investigation in Najera’s postconviction motion
focused largely on whether she had been intoxicated, the “factual
basis Defendant admitted to for her plea did not in any way
reference her sobriety or intoxication at the time of the incident.”
Thus, the postconviction court concluded, the investigation along
the lines of what Najera claims should have been done would not
have resulted in exculpatory evidence for the charge of which she
was eventually convicted.
¶ 28 Second, aside from making general representations in her
opening brief that “[c]ounsel did not raise evidence that was
material, trustworthy and available,” Najera does not specify what
would have been revealed by additional investigation on her
attorneys’ part. She did not identify any exculpatory evidence or
point to evidence that would have been discovered had her
attorneys conducted any more investigation. And while she did
13
name some potential witnesses counsel could have interviewed, she
did not specify what they would have said or how that would have
impacted her decision to plead guilty. Therefore, she was not
entitled to a hearing on this basis. See People v. Stovall, 2012 COA
7M, ¶ 29 (Speculative assertions are “insufficient to meet” a
postconviction applicant’s “burden of alleging facts that would allow
the postconviction court to find that he was prejudiced by counsel’s
alleged failure to investigate.”).
III. Conclusion
¶ 29 The order is affirmed.
JUDGE NAVARRO and JUDGE PAWAR concur.