COLORADO COURT OF APPEALS 2016COA93 

Court of Appeals No. 15CA0080 

El Paso County District Court No. 10CR4367 

Honorable David S. Prince, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Robert Lee Hunt, 

Defendant-Appellant. 

ORDER REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division I 

Opinion by JUDGE DAILEY 

Taubman and Sternberg*, JJ., concur 

Announced June 16, 2016 

Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Elizabeth Stovall, Alternate Defense Counsel, Denver, Colorado, for DefendantAppellant 

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2015. 
1 

¶ 1 Defendant, Robert Lee Hunt, appeals the district court’s order 

denying his Crim. P. 35(c) motion for postconviction relief. We 

reverse and remand for an evidentiary hearing on two ineffective 

assistance of counsel claims. 

I. Background 

¶ 2 Defendant was charged with first degree “after deliberation” 

murder, first degree “extreme indifference” murder, conspiracy to 

commit murder, possession of a weapon by a previous offender, and 

three crime of violence (sentencing enhancement) counts. Pursuant 

to a plea agreement, defendant pleaded guilty to an added count of 

second degree murder and to one of the original crime of violence 

counts in exchange for (1) the dismissal of the remaining charges 

and (2) a stipulated sentence of between thirty and forty years 

imprisonment in the Department of Corrections. 

¶ 3 At defendant’s January 2012 providency hearing, plea counsel 

provided the court with the following factual basis for the second 

degree murder charge for which defendant was about to plead 

guilty: 

[O]n July 28, [2010], [defendant] was the 

victim of a home invasion, not . . . knowing 

exactly who were the perpetrators of the home 
2 

invasion. [Defendant] along with an[other] 

individual [(the shooter)] . . . decided that the 

people responsible for the home invasion 

would be killed. [Defendant] utilized [the 

shooter] because [the shooter] had a weapon. 

On the night of the murder, [the shooter] told 

[defendant] that one of the robbers of the home 

invasion was located at [an apartment 

complex]. 

They proceeded then to [the apartment 

complex] . . . [and] saw an individual standing 

outside. [The shooter] believed that to be one 

of the home invaders so [the shooter] called 

[the individual] over to the car. 

[Defendant] said, that’s not one of the 

guys that did the home invasion. However, 

then [the shooter] had a conversation with this 

individual . . . [and] then shot [him]. 

¶ 4 In March and July 2012, defendant wrote two letters to the 

district court, asking to withdraw his guilty plea. In his letters, 

defendant asserted that (1) he was not guilty of murder because he 

had not intended for the shooter to kill the victim; and (2) his 

attorney had erroneously advised him that he could, if tried, be 

found guilty (and sentenced to life imprisonment) under a 

complicity theory. 

¶ 5 On July 19, 2012, plea counsel filed a motion to withdraw 

from the case based on an alleged conflict of interest and requested 
3 

the court allow defendant to withdraw his guilty plea. The motion, 

which was very short, was based on defendant’s assertion that he 

had received ineffective assistance of counsel.1 On July 30, 2012, 

the court held a hearing on the motion; found no conflict of interest 

between counsel and defendant; and directed counsel to file, on 

defendant’s behalf, a Crim. P. 32(d) motion to withdraw guilty plea. 

¶ 6 Three days later — the day before sentencing — plea counsel 

filed the Crim. P. 32(d) motion, in which she noted: 

 Defendant had “previously requested to withdraw his 

[guilty] plea due to an ineffective counsel/conflict claim. 

A conflict hearing was held and the court at that time 

determined there was no conflict nor was there a showing 

that counsel was ineffective.” 

 Defendant “contends that he was never fully advised of 

the definition of complicity by counsel. [He] contends 

that he never understood that complicity required that he 

have actual knowledge that the other person intended to 

commit all or part of the crime. He also “contends that 

 

1 Counsel related that because of the attorney-client privilege, she 

was not at liberty to disclose in the motion the specifics of the 

conflict between her and defendant. 
4 

he thought being at the scene of the crime was enough 

for conviction under a complicity theory” but, after doing 

his own research, realizes that “mere presence is not 

enough to result in a complicity conviction [sic].” 

 Defendant “contends that he had no knowledge that the 

codefendant in this case was going to shoot the victim” 

and therefore he “could not be found guilty of murder 

pursuant to a complicity theory, nor could he be 

convicted as the principal since he did not fire the 

weapon that killed the victim.” 

 If defendant “fail[ed] to understand the requirements of 

complicity” as he contended, then he “did not have an 

adequate understanding of what he was pleading to [and] 

. . . has a fair and just reason to withdraw his plea.” 

¶ 7 Without addressing the Crim. P. 32(d) motion, the district 

court sentenced defendant to a term of forty years imprisonment in 

the custody of the Department of Corrections. 

¶ 8 Subsequently, defendant filed two pro se Crim. P. 35(c) 

motions for postconviction relief based on claims of ineffective 

assistance of plea counsel. As pertinent here, defendant alleged 
5 

that he had pleaded guilty based on counsel’s incorrect advice that 

he could be found guilty of murder as a complicitor simply because 

he was present when a person he had not intended to be killed was 

killed. 

¶ 9 The district court appointed defendant new counsel, who 

subsequently filed a supplemental motion (1) expounding on 

defendant’s pro se arguments and (2) asserting that plea counsel 

was also ineffective in failing to advise defendant that he could 

appeal the apparent denial of the Crim. P. 32(d) motion.2

¶ 10 Without holding a hearing, the court denied the Crim. P. 35(c) 

motions for postconviction relief. In its written order, the court 

found, in pertinent part, that 

 under the facts recited at the providency hearing, the law 

of complicity, and the doctrine of transferred intent 

applied in People v. Candelaria, 107 P.3d 1080, 1091-92 

(Colo. App. 2004), aff’d in part and rev’d in part, 148 P.3d 

178 (Colo. 2006), counsel’s advice was accurate; and 

 

2 Defendant also alleged other grounds of ineffective assistance of 

counsel. Because, however, he does not address those other 

grounds in his appeal, they are deemed abandoned and will not be 

addressed here. See People v. Brooks, 250 P.3d 771, 772 (Colo. 

App. 2010). 
6 

 even assuming plea counsel failed to advise defendant of 

his right to appeal from a denial of a motion to withdraw 

guilty plea, defendant was not entitled to relief because 

he “identifie[d] no plausible appellate challenge to the 

denial of his request to withdraw his plea.” 

II. Ineffective Assistance of Plea Counsel 

¶ 11 On appeal, defendant contends that the court erred in 

summarily denying his postconviction motion. Specifically, he 

asserts that he was at least entitled to a hearing on his assertions 

that plea counsel was ineffective for (1) inaccurately advising him of 

the requisite elements of the offense to which he pleaded and 

(2) failing to advise him that he could appeal the court’s denial of 

his Crim. P. 32(d) motion. We agree. 

¶ 12 Ineffective assistance of counsel may constitute an adequate 

ground for relief under both Crim. P. 32(d) and 35(c). People v. 

Lopez, 12 P.3d 869, 871 (Colo. App. 2000).3

 

3 “[A Crim. P. 32(d)] motion to withdraw a plea of guilty may only be 

made before sentence is imposed or imposition of sentence is 

suspended. . . . [A]fter sentence has been imposed, the validity of a 

guilty plea can be challenged under Crim. P. 35(c).” People v. 

Dawson, 89 P.3d 447, 449 (Colo. App. 2003) (citation omitted). 
7 

¶ 13 To prevail on a claim of ineffective assistance of counsel, a 

defendant must establish that (1) counsel’s performance fell below 

the level of reasonably competent assistance demanded of attorneys 

in criminal cases and (2) the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

accord Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). 

¶ 14 A motion raising ineffective assistance of counsel may be 

denied without a hearing “if, but only if, the existing record 

establishes that the defendant’s allegations, even if proven true, 

would fail to establish one or the other prong of the Strickland test.” 

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). 

If a criminal defendant has alleged acts or 

omissions by counsel that, if true, could 

undermine confidence in the defendant’s 

conviction or sentence, and the motion, files, 

and record in the case do not clearly establish 

that those acts or omissions were reasonable 

strategic choices or otherwise within the range 

of reasonably effective assistance, the 

defendant must be given an opportunity to 

prove they were not. 

Id.
8 

A. Pre-Plea Advice 

¶ 15 Initially, defendant asserts that (1) plea counsel improperly 

advised him that “neither mens rea nor actus reus was an element 

of the offense to which he pled”; and (2) had he (defendant) known 

there was a mens rea element to the crime, he would not have 

pleaded guilty. The record, however, refutes defendant’s assertion 

that he did not know that there was a mens rea element to the 

crime with which he was charged. 

¶ 16 The prosecution pursued charges against defendant on a 

complicity theory — a theory by which a person is held accountable 

for a criminal offense committed by another. People v. TheusRoberts, 2015 COA 32, ¶ 35. Under the complicity statute, “[a] 

person is legally accountable as [a] principal for the behavior of 

another constituting a criminal offense if, with the intent to promote 

or facilitate the commission of the offense, he or she aids, abets, 

advises, or encourages the other person in planning or committing 

the offense.” § 18-1-603, C.R.S. 2015. As pertinent in this case, 

“[a] person commits the crime of murder in the second degree if the 

person knowingly causes the death of a person.” § 18-3-103(1), 

C.R.S. 2015 (emphasis added). 
9 

¶ 17 At the providency hearing, the court specifically informed 

defendant that the crime to which he was about to enter a plea had 

mens rea components: 

THE COURT: “So let me talk to you a little bit 

about the elements here that the defendant, 

that is you, in the State of Colorado, on or 

about July 30, 2010 knowingly caused the 

death of another person, that person would be 

[the victim]. . . . 

. . . . 

 . . . Now I’ve talked to your counsel earlier 

kind of what the theory is here. I’ll talk to you 

a little bit about it as well. But it’s written 

here per complicity and I’m sure that [plea 

counsel] has talked to you a little bit about 

what that means. 

THE DEFENDANT: Yes, sir. 

THE COURT: Okay. Complicity just generally 

a crime must have been committed, another 

person must have committed all or part of the 

crime. The defendant must have had 

knowledge that the other person intended to 

commit all or part of that crime and the 

defendant must have the intent to promote or 

facilitate the commission of the crime and the 

defendant must have aided, abetted, advised 

or encouraged the person in the plan of 

committing the crime without any potential 

affirmative defenses so that’s generally what 

complicity means. 

. . . . 
10 

Have you talked generally with your counsel 

about these concepts . . . of complicity and 

conspiracy? 

THE DEFENDANT: Yes. 

(Emphasis added.) 

¶ 18 But, defendant asserts, neither the court nor plea counsel 

informed him that to be guilty as a complicitor, he must have 

known that another person was going to kill the victim and he must 

have intended, by his own conduct, to promote or facilitate the 

other person’s act of killing that victim — circumstances which 

were lacking under the factual basis provided by plea counsel.4 

Defendant went forward with the plea, he says, only because plea 

counsel “told him he could be found guilty simply based on his 

presence in the car when [the shooter] shot [the victim].” 

¶ 19 The district court assumed that counsel had advised (or failed 

to advise) defendant as defendant alleged counsel did, and it 

determined that counsel’s advice or lack of advice did not constitute 

deficient performance on her part. The district court reached this 

 

4 The “dual intent” requirement upon which defendant relies comes 

from Bogdanov v. People, 941 P.2d 247, 250-51 (Colo. 1997), 

amended, 955 P.2d 997 (Colo. 1997). The supreme court, however, 

has since altered that requirement. See People v. Childress, 2015 

CO 65M, ¶¶ 30, 34. 
11 

conclusion based on the Candelaria division’s discussion of how 

complicity operates in conjunction with the doctrine of “transferred 

intent.” In this regard, the Canderlaria division wrote: 

We conclude that a person who intends to aid 

the principal in committing murder and who 

possesses the intent to murder a person is 

criminally liable for the killing of an 

unintended third party by the principal. The 

killing of an unintended person is within the 

scope of the “particular crimes” that the 

perpetrators conspired to promote or facilitate 

— first degree murder. To adopt defendant’s 

argument would provide an absurd result 

where the principal would be guilty of first 

degree murder of an unintended victim while a 

complicitor, who assists in facilitating and 

promoting the crime, is exonerated. This 

result would defeat the purpose of the 

complicity statute . . . . 

107 P.3d at 1092. 

¶ 20 On appeal, defendant contends that the district court erred (1) 

in determining that the doctrine of transferred intent applies to 

crimes other than first degree murder (which was the charge in 

Candelaria) or (2) in its application of the transferred intent 

doctrine. We reject defendant’s first point but agree with his 

second. 
12 

¶ 21 In Candelaria, the division recognized that the first degree 

murder statute, by its terms, “incorporates the doctrine of 

transferred intent and holds a principal liable for the death of an 

unintended victim.” Id. at 1091; see § 18-3-102(1)(a), C.R.S. 2015 

(A person commits first degree murder after deliberation where 

“[a]fter deliberation and with the intent to cause the death of a 

person other than himself, he causes the death of that person or of 

another person.”) (emphasis added). 

¶ 22 Defendant points out that the second degree murder statute 

does not contain such language. Nevertheless, in People v. Marcy, 

628 P.2d 69 (Colo. 1981), the supreme court concluded that the 

doctrine of transferred intent applies to second degree murder: 

There is no requirement that the knowing 

conduct essential to extreme indifference 

murder and second degree murder be directed 

against the person actually killed. On the 

contrary, both offenses are general intent 

crimes, and as long as the offender knowingly 

acts in the proscribed manner and causes the 

death of another, he is guilty of the crime even 

though the person killed is not the person 

against whom the criminal conduct was 

directed. 

Id. at 79 (citation omitted). 
13 

¶ 23 Although the second degree murder statute was amended after 

Marcy was decided, the statutory change did not alter the general 

intent requirement described in Marcy. See Ch. 295, sec. 12, § 18-

3-103, 1996 Colo. Sess. Laws 1844. Therefore, we are bound by 

this holding. See People v. Allen, 111 P.3d 518, 520 (Colo. App. 

2004) (noting the Colorado Court of Appeals is “bound by the 

decisions of the Colorado Supreme Court”). 

¶ 24 Turning to the court’s application of the transferred intent 

doctrine, we note that 

[t]he doctrine . . . is a legal fiction that is used 

to hold a defendant criminally liable to the full 

extent of his or her criminal culpability. 

Traditionally, the transferred intent theory has 

been applied in so-called “bad aim” situations 

where a defendant, while intending to kill one 

person, accidentally kills an innocent 

bystander or another unintended victim. . . . 

Thus, the perpetrator’s intent to kill or injure a 

specific victim transfers to the unintended 

victim. 

 . . . The purpose of the doctrine is to impose 

criminal liability upon an actor when he or she 

intends to commit a criminal act, and “the 

actual result differs from the result designed or 

contemplated only in that a different person or 

property was injured or affected.” 
14 

State v. Fekete, 901 P.2d 708, 714 (N.M. 1995) (citations omitted) 

(quoting Model Penal Code § 2.03(2)(a) cmt. 3 (1985)); see People v. 

Fernandez, 673 N.E.2d 910, 913 (N.Y. 1996) (“The doctrine of 

‘transferred intent’ serves to ensure that a person will be prosecuted 

for the crime he or she intended to commit even when, because of 

bad aim or some other ‘lucky mistake,’ the intended target was not 

the actual victim.” (quoting People v. Birreuta, 208 Cal. Rptr. 635, 

639 (Cal. Ct. App. 1984))). 

¶ 25 In Candelaria, the defendant and others sought to find and kill 

a particular individual with whom they had earlier exchanged 

gunfire; when they saw that individual’s car, the defendant’s 

passenger opened fire at it, killing not that individual but someone 

else. 107 P.3d at 1084. As defendant points out, that was a classic 

transferred intent scenario: the perpetrator (the passenger in the 

car) missed his intended target and hit someone else. 

¶ 26 Here, taking as true the facts presented at the providency 

hearing, there was no unintended victim, within the meaning of the 

transferred intent doctrine. There was no mistake, on the part of 

the shooter: he did not think he was shooting someone else, nor did 

he try to shoot someone else but accidentally hit the victim. 
15 

Instead, the shooter meant to kill the very person that he did kill, 

and that person was not someone defendant wanted to kill. 

¶ 27 The district court viewed the “transferred intent” doctrine from 

defendant’s perspective — that is, that he had intended to kill a 

particular person but not the victim. But the People have cited no 

authority, and we have found none, applying the “transferred 

intent” doctrine from the perspective of a person who was not the 

one who actually committed the crime itself. To the contrary, at 

least one commentator has noted that when, as was alleged here, 

“the direct perpetrator deliberately changes the object of the offence, 

the doctrine of transferred malice does not apply to the indirect 

participant despite the fact that from his point of view the 

displacement of harm was accidental.” Shachar Eldar, Examining 

Intent Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 42 

(2015).5

 

5 In the course of his article, Eldar presented three scenarios where 

the “Direct Perpetrator [of a Crime] Caused a Change of Object”; 

noted that “English law . . . distinguished deviation caused by 

accident (scenario 4) or mistake (scenario 5) from deliberate 

deviation (scenario 6)”; and explained that “the indirect participant 

is not liable if the direct perpetrator deviated purposefully from the 

plan, as, for example, if he received a knife to kill A and resolves to 

use the knife to kill B instead.” Shachar Eldar, Examining Intent 
16 

¶ 28 Nor would “complicity” principles necessarily make defendant 

responsible for second degree murder under the facts presented at 

the providency hearing. In Bogdanov v. People, 941 P.2d 247 (Colo. 

1997), amended, 955 P.2d 997 (Colo. 1997), the supreme court 

noted: 

[S]ome jurisdictions have complicity statutes 

that would hold an accomplice liable for any 

crimes that are a reasonably foreseeable 

consequence of the crime which the 

accomplice intended to aid or encourage. The 

Colorado General Assembly chose not to 

extend accomplice liability to reasonably 

foreseeable crimes, but rather limited such 

liability to those particular crimes which the 

accomplice intended to promote or facilitate. 

Id. at 251 n.8 (citation omitted). 

¶ 29 Under Colorado law, 

a person is legally accountable as a principal 

for the behavior of another constituting a 

criminal offense if he aids, abets, advises, or 

encourages the other person in planning or 

committing that offense, and he does so with: 

(1) the intent to aid, abet, advise, or encourage 

the other person in his criminal act or 

conduct, and (2) an awareness of 

circumstances attending the act or conduct he 

seeks to further, including a required mental 

 

Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 39-41 

(2015). 
17 

state, if any, that are necessary for 

commission of the offense in question. 

People v. Childress, 2015 CO 65M, ¶ 34. 

¶ 30 Applied to the facts as presented at the providency hearing, 

the principles announced in Bogdanov and Childress may not 

support complicitor liability for the crime of first or second degree 

murder. While it may have been foreseeable that someone would be 

killed when the two men started out that night, defendant’s liability 

does not, under Bogdanov, depend on the foreseeability of the 

result. Rather, it must be tied to his own intent and awareness of 

the circumstances under which his confederate acted. Defendant’s 

position is, apparently, that he was not aware until it was too late 

that the shooter intended to kill someone other than a person whom 

defendant wanted to kill. These facts, if true, would not support a 

conviction of defendant for first or second degree murder under a 

complicitor theory. See Childress, ¶¶ 31-32 (discussing the mental 

states required of a principal and complicitor for “knowing” or 

“specific intent” crimes). 

¶ 31 Because the facts, as presented at the providency hearing, 

would not support a conviction for first or second degree murder 
18 

based on transferred intent and complicity principles, any failure on 

the part of plea counsel to so advise defendant could have 

constituted deficient performance. See Carmichael v. People, 206 

P.3d 800, 806 (Colo. 2009) (“[C]ounsel’s failure to present defendant 

with the opportunity to make [a] reasonably informed decision 

[whether to accept a plea offer] will constitute deficient 

representation.”). 

¶ 32 Because the court summarily denied defendant’s 

postconviction motion, the record does not disclose whether, in fact, 

plea counsel misadvised (or failed to properly advise) defendant; 

whether any failure on the part of counsel to properly advise 

defendant would have been unreasonable under the then-prevailing 

professional norms;6 or, if so, whether defendant would likely have 

 

6 See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair 

assessment of attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, to reconstruct 

the circumstances of counsel’s challenged conduct, and to evaluate 

the conduct from counsel’s perspective at the time.”); Everett v. 

Sec’y, Fla. Dep’t of Corr., 779 F.3d 1212, 1249 (11th Cir. 2015) 

(“The Strickland performance standard is objectively reasonable 

attorney conduct under prevailing professional norms. We look at 

what professional norms existed at the time that the attorney 

acted.”) (citations omitted); People v. Ray, 2015 COA 92, ¶ 37 

(“Strickland’s deficient performance prong is governed by the law as 
19 

pleaded guilty anyway.7 Consequently, a remand for an evidentiary 

hearing on these matters is necessary. 

B. Failure To Advise Defendant of His Right To Appeal 

¶ 33 Defendant also contends that the district court erred in 

denying his claim that plea counsel was ineffective in failing to 

advise him about appealing the ruling on his Crim. P 32(d) motion 

to withdraw guilty plea. Again, we conclude that a remand is 

necessary. 

¶ 34 Twenty-five days after the court sentenced defendant, 

defendant filed a pro se pleading, titled “Written Notice of Appeal / 

Review of Sentence Will Be Sought,” informing the court that he 

wished to “appeal the court’s decision [denying Rule 32(d) relief] and 

. . . [his] sentence,” and requesting that the court appoint him an 

attorney. No attorney was appointed; no appeal was taken. 

 

it stood at the time of counsel’s allegedly deficient performance 

. . . .”). 

7 In the guilty plea context, the question of ineffective assistance of 

counsel “prejudice” is analyzed in terms of whether there is a 

reasonable probability that, but for counsel’s unprofessional errors, 

the defendant would not have pleaded guilty. Hill v. Lockhart, 474 

U.S. 52, 59 (1985); People v. Garcia, 815 P.2d 937, 943 (Colo. 

1991). 
20 

¶ 35 Subsequently, in the supplemental Crim. P. 35(c) motion, 

postconviction counsel asserted that plea counsel was ineffective in 

“fail[ing] to advise [defendant] he had a right to appeal the denial of 

his 32(d) motion and his sentence.” 

¶ 36 The district court found that, even if it assumed plea counsel 

failed to advise defendant of his right to appeal, defendant was not 

entitled to relief because he had “identifie[d] no plausible appellate 

challenge to the denial of his request to withdraw his pleas,” and 

therefore, he was not prejudiced. 

¶ 37 Before turning to the merits of this issue, we must first 

address a point raised by the People — that is, that the record does 

not reflect that the district court ever ruled on the Crim. P. 32(d) 

motion, and thus there was nothing for defendant to appeal or be 

advised of appealing. 

¶ 38 Ordinarily, we would, as urged by the People, not give any 

further consideration to this issue. See Feldstein v. People, 159 

Colo. 107, 111, 410 P.2d 188, 191 (1966) (“[I]t is incumbent on the 

moving party to see to it that the court rules on the matter he 

urges. The trial court should be afforded the opportunity to so rule; 

otherwise, the matter will ordinarily not be considered on writ of 
21 

error.”), abrogated on other grounds by Deeds v. People, 747 P.2d 

1266 (Colo. 1987); People v. Young, 923 P.2d 145, 149 (Colo. App. 

1995) (“[B]ecause he failed to request [from the trial court] a ruling 

on this issue, defendant has waived it on appeal.”). 

¶ 39 However, in this case, it was the district court that, only four 

days before sentencing, ordered plea counsel to file the Crim. P. 

32(d) motion. And, because the judge at sentencing was the same 

judge who had ordered that the motion be filed, the district court 

could reasonably have expected — and not been surprised by — the 

filing of the motion. 

¶ 40 Further, the judge who ordered the motion to be filed and who 

sentenced defendant was the same judge who ruled on defendant’s 

motions for postconviction relief. In denying relief on this part of 

defendant’s postconviction motions, that judge did not base his 

decision on any lack of a ruling on the Rule 32(d) motion. If 

anything, he appeared to consider the Rule 32(d) motion to have 

been implicitly denied when he proceeded to sentencing. We will 

consider it in this same fashion on appeal. 

¶ 41 Turning to the merits of defendant’s ineffective assistance of 

counsel claim, the United States Supreme Court has said that “a 
22 

lawyer who disregards specific instructions from the defendant to 

file a notice of appeal acts in a manner that is professionally 

unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In 

other cases, however, 

where the defendant neither instructs counsel 

to file an appeal nor asks that an appeal not be 

taken, . . . whether counsel has performed 

deficiently . . . is best answered by first asking 

. . . whether counsel in fact consulted with the 

defendant about an appeal. We employ the 

term ‘consult’ to convey a specific meaning — 

advising the defendant about the advantages 

and disadvantages of taking an appeal, and 

making a reasonable effort to discover the 

defendant’s wishes. If counsel has consulted 

with the defendant, the question of deficient 

performance is easily answered: Counsel 

performs in a professionally unreasonable 

manner only by failing to follow the 

defendant’s express instructions with respect 

to an appeal. If counsel has not consulted 

with the defendant, the court must in turn ask 

. . . whether counsel’s failure to consult with 

the defendant itself constitutes deficient 

performance. 

. . . . 

. . . [C]ounsel has a constitutionally imposed 

duty to consult with the defendant about an 

appeal when there is reason to think either (1) 

that a rational defendant would want to appeal 

(for example, because there are nonfrivolous 

grounds for appeal), or (2) that this particular 

defendant reasonably demonstrated to counsel 
23 

that he was interested in appealing. In making 

this determination, courts must take into 

account all the information counsel knew or 

should have known. . . . Even in cases when 

the defendant pleads guilty, the court must 

consider such factors as whether the 

defendant received the sentence bargained for 

as part of the plea and whether the plea 

expressly reserved or waived some or all appeal 

rights. Only by considering all relevant factors 

in a given case can a court properly determine 

whether a rational defendant would have 

desired an appeal or that the particular 

defendant sufficiently demonstrated to counsel 

an interest in an appeal. 

Id. at 478-80 (citation omitted). 

¶ 42 Here, either defendant or plea counsel filed several letters or 

motions seeking to withdraw the guilty plea on the basis of a 

purported misadvisement (and therefore misunderstanding) of the 

elements of the offense for which defendant entered his plea. And, 

twenty-five days after sentencing, defendant filed a pro se “notice of 

appeal” in the district court. 

¶ 43 Given defendant’s letters, plea counsel’s motions, and 

defendant’s pro se notice of appeal, the record contains ample 

reason to perceive that defendant would want to appeal the denial 

of his motion to withdraw his plea and that he had reasonably 

demonstrated that interest. The record reflects that plea counsel 
24 

was still representing defendant several months after sentencing. 

For purposes of this appeal, we, like the district court, will assume 

that plea counsel should have consulted with and advised 

defendant about his right to appeal,8 but did not do so. Cf. FloresOrtega, 528 U.S. at 481 (“We expect that courts evaluating the 

reasonableness of counsel’s performance using the inquiry we have 

described will find, in the vast majority of cases, that counsel had a 

duty to consult with the defendant about an appeal.”). 

¶ 44 We, however, disagree with the court’s finding that defendant 

had not been prejudiced because he had “identifie[d] no plausible 

appellate challenge to the denial of his request to withdraw his 

pleas.” In this context, ineffective assistance of counsel “prejudice” 

is demonstrated not by the existence of plausible appellate 

arguments, but rather by a showing that “there is a reasonable 

probability that, but for counsel’s deficient failure to consult with 

 

8 “[A]dequate consultation requires informing a client about his 

right to appeal, advising the client about the advantages and 

disadvantages of taking an appeal, and making a reasonable effort 

to determine whether the client wishes to pursue an appeal, 

regardless of the merits of such an appeal.” Thompson v. United 

States, 504 F.3d 1203, 1206 (11th Cir. 2007). Counsel should also 

inform a defendant that he is obligated to file an appeal if that is 

what the defendant requests. Id. at 1207.
25 

[the defendant] about an appeal, [the defendant] would have timely 

appealed.” Id. at 484; accord People v. Pendleton, 2015 COA 154, 

¶ 38.

¶ 45 Because the court summarily denied defendant’s claim, the 

record does not reflect whether plea counsel had consulted 

defendant about appealing; what, if any, advice plea counsel might 

have given defendant about appealing;9 what instructions defendant 

may have given counsel; and, whether there is a reasonable 

probability that defendant’s failure to timely appeal the denial of his 

Rule 32(d) motion and sentence was attributable to counsel’s advice 

or lack of advice. Consequently, the matter must be remanded for 

an evidentiary hearing on these issues. 

III. Conclusion 

¶ 46 The order is reversed and the case is remanded for an 

evidentiary hearing on the two claims of ineffective assistance of 

counsel discussed in this opinion. 

 

9 For example, whether counsel informed defendant that, although 

she could file an appeal on his behalf, she herself could not pursue 

that appeal because of the nature of the underlying issue (i.e., her 

alleged ineffectiveness). Thus, the appeal, once perfected, would 

need to be pursued either by conflict-free counsel or by defendant 

himself. 
26 

¶ 47 If defendant demonstrates that his guilty plea is infirm as a 

result of plea counsel’s ineffective assistance, the district court shall 

vacate the judgment of conviction and reinstate the original 

charges, without needing to address defendant’s second claim. 

¶ 48 If, however, defendant does not succeed in setting his 

conviction aside, the court shall consider defendant’s second claim. 

If the district court determines, with respect to that claim, that 

defendant was deprived of his appellate rights as a result of 

ineffective assistance of plea counsel, the court shall appoint 

counsel for direct appeal and order counsel to file, in this court, a 

motion to allow a late-filed notice of appeal with, as proof of good 

cause for the late appeal, the district court’s order finding ineffective 

assistance of plea counsel. See People v. Long, 126 P.3d 284, 287 

(Colo. App. 2005). 

¶ 49 The district court’s rulings on remand are subject to appeal by 

either party. 

¶ 50 JUDGE TAUBMAN and JUDGE STERNBERG concur.