COLORADO COURT OF APPEALS 2016COA175 

Court of Appeals No. 14CA0710 

City and County of Denver District Court No. 87CR1542 

Honorable Elizabeth A. Starrs, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

William Daniel Hardin, 

Defendant-Appellant. 

ORDER AFFIRMED 

Division VI 

Opinion by JUDGE FOX 

Bernard and Richman, JJ., concur 

Announced December 1, 2016 

Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for DefendantAppellant 
1 

¶ 1 Defendant, William Daniel Hardin, appeals the postconviction 

court’s long-awaited order denying his Crim. P. 35(c) motion for 

postconviction relief.1 We affirm. 

I. Background 

¶ 2 Hardin was accused of robbing three men, Isaac Fisher, Victor 

Irving, and Lloyd Rhodes, and of killing two of the men, Fisher and 

Irving. The prosecution charged Hardin with one count of 

aggravated robbery for the robbery of all three men and with two 

counts each of felony murder and murder after deliberation with 

respect to the killings of Fisher and Irving. When Hardin’s 1988 

trial concluded, the jury found him guilty by separate verdict forms 

of two counts of aggravated robbery regarding Irving and Rhodes 

and two counts each of felony murder and murder after deliberation 

with respect to Fisher and Irving. The jury acquitted Hardin of the 

aggravated robbery count with respect to Fisher. 

¶ 3 The trial court entered a judgment of conviction and sentenced 

Hardin to consecutive terms of imprisonment of sixteen years for 

each aggravated robbery conviction and life for each felony murder 

 

1 The third and final district court judge to preside over this case 

finally took action after years of inaction by the judge’s two 

predecessors. 
2 

conviction. It did not sentence Hardin on the murder after 

deliberation convictions.2 

¶ 4 Several months after the trial, Hardin filed a notice of appeal 

regarding the judgment of conviction. Soon after, he requested and 

was granted a limited remand to pursue an ineffective assistance 

claim, pursuant to Crim. P. 35(c), concerning his trial counsel. To 

avoid a conflict of interest, the public defender’s office was allowed 

to withdraw from the postconviction proceedings and the appeal. In 

granting the remand in 1991, a division of this court ordered that 

the postconviction proceedings “be done with all due speed.” 

¶ 5 Over the next six years, the postconviction court appointed a 

succession of private attorneys to represent Hardin; they all 

withdrew before resolution of the proceedings. The postconviction 

court repeatedly set the matter, only to later vacate the settings. 

Hardin repeatedly expressed frustration with his legal 

 

2 The trial court’s minute orders and mittimus seemingly conflict 

with each other as to whether the aggravated robbery and felony 

murder convictions regarding Irving merged, and whether Hardin 

was sentenced to life imprisonment on each count of felony murder 

and murder after deliberation, or just the felony murder 

convictions. Two divisions of this court, and the postconviction 

court, later interpreted Hardin’s sentences as explained here. 
3 

representation and with his appointed attorneys’ lack of action in 

the postconviction court and in this court. 

¶ 6 A division of this court eventually vacated the limited remand 

and decided Hardin’s direct appeal in 1997, about ten years after 

Hardin committed the underlying crimes. See People v. Hardin, 

(Colo. App. No. 88CA1898, Dec. 18, 1997) (not published pursuant 

to C.A.R. 35(f)) (Hardin I). That division affirmed Hardin’s 

convictions, but it remanded with instructions for the trial court to 

vacate the felony murder conviction concerning Irving’s death, enter 

a judgment of conviction for the count of murder after deliberation 

concerning Irving’s death, and resentence Hardin accordingly.3 Id. 

That division also concluded that Hardin’s ineffective assistance of 

counsel claims should be considered in a postconviction 

proceeding. Id. 

¶ 7 Hardin later filed a pro se Crim. P. 35(c) motion raising 

numerous claims, including ineffective assistance of counsel. The 

postconviction court denied the motion in 1999 without holding a 

hearing, appointing counsel, or resentencing Hardin in accordance 

 

3 The resulting sentence for this conviction, finally imposed in 2014, 

was life imprisonment. 
4 

with the remand instructions. Hardin appealed the 1999 order 

denying his postconviction motion. In December 2000, a division of 

this court reversed the order and remanded with instructions to 

hold further proceedings on Hardin’s postconviction claims and to 

comply with the 1997 remand instructions regarding resentencing. 

See People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21, 2000) (not 

published pursuant to C.A.R. 35(f)). 

¶ 8 After the remand, the postconviction court appointed another 

attorney to represent Hardin in April 2001. Over the next four 

years, and after the postconviction court allowed several extensions 

of time to supplement Hardin’s pro se Crim. P. 35(c) motion, 

Hardin’s appointed counsel failed to file any supplement. 

Meanwhile, Hardin made numerous pro se filings expressing his 

frustration with his attorney’s inaction and his desire to obtain 

adequate counsel. In response to the inactivity in these 

proceedings, the postconviction court appointed Hardin’s current 

attorney in February 2005. 

¶ 9 Almost eight years later, in December 2012 — about twentyfour years after trial and about twelve years after Hardin filed his 

original Crim. P. 35(c) motion — the third and final trial judge to 
5 

preside over this case since the 2000 remand issued an order 

mandating that Hardin’s postconviction proceedings “get moving.”4 

Thereafter, Hardin’s attorney filed two supplemental briefs in 

support of his motion for postconviction relief. The postconviction 

court held an evidentiary hearing over three days on the matter. 

After the hearing, the postconviction court denied Hardin’s motion. 

In denying the motion, the postconviction court stated that the 

twelve-year delay in the postconviction proceedings “did not amount 

to a remedial due process violation . . . and, perhaps most 

importantly, did not legally prejudice [Hardin].” 

¶ 10 Hardin now appeals. 

II. Due Process 

¶ 11 Hardin argues that the postconviction court erred in 

concluding that the proper remedy for the twelve-year delay in 

resolving his postconviction claims, which violated his right to due 

 

4 The judge, noting the “excruciating and often inexplicable delays” 

in this case, stated that “nothing substantively has been done” in 

this case since the December 2000 remand; “no hearing has ever 

been held” on Hardin’s Crim. P. 35(c) motion; appointed counsel 

had failed to supplement the motion during her nearly seven-year 

tenure as Hardin’s attorney; and Hardin’s series of attorneys had 

filed “endless motions for extensions of time,” several of which had 

yet to be ruled upon. 
6 

process, was to finally address his Crim. P. 35(c) motion, rather 

than grant him a new trial. In support of this position, Hardin 

asserts that the delay impaired his ability to present his claims for 

postconviction relief, as shown by the witnesses’ faded memories 

and the unavailability of certain records. Hardin further argues 

that we should analyze his due process claim concerning the 

twelve-year delay in his postconviction proceedings in the same 

manner as appellate delays — that is, under the Colorado Supreme 

Court’s iteration of the factors set forth in Barker v. Wingo, 407 U.S. 

514 (1972). See Hoang v. People, 2014 CO 27, ¶¶ 48-54. We 

conclude that the postconviction court properly declined to grant 

Hardin a new trial on this issue, but we respectfully disagree with 

the postconviction court’s legal analysis. 

A. Preservation, Standard of Review, and Applicable Law 

¶ 12 The parties agree that this issue has been properly preserved. 

¶ 13 This issue presents a mixed question of fact and law. See 

People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010). We defer to 

a postconviction court’s findings of fact if they are supported by 

evidence in the record, and we review its conclusions of law de 

novo. See Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). 
7 

¶ 14 As a matter of first impression, we determine that due process 

claims arising from delays in resolving motions for postconviction 

relief should be analyzed under the balancing test set forth in 

Barker, 407 U.S. at 530. Although this test was originally applied 

to issues concerning a defendant’s Sixth Amendment right to a 

speedy trial, courts have employed it in the context of due process 

claims arising from delays in various legal proceedings. See, e.g., 

People v. Smith, 183 P.3d 726, 730 (Colo. App. 2008) (delay 

regarding a probation revocation hearing); People v. Rios, 43 P.3d 

726, 732 (Colo. App. 2001) (delay in appellate proceedings); 

Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. Ct. 2010) 

(delay in resolving a motion for postconviction relief). We see no 

reasoned basis why the Barker factors should not inform our 

analysis in the context of postconviction proceedings.

¶ 15 Under this test, a court should consider the following factors: 

(1) the length of the delay; (2) the reason for the delay; (3) the 

defendant’s assertion of his or her right; and (4) whether the 

defendant suffered prejudice as a result of the delay. Rios, 43 P.3d 

at 732; accord Barker, 407 U.S. at 530. The length of the delay 

must be at least presumptively prejudicial to the defendant before 
8 

further inquiry into the other factors is warranted. See Barker, 407 

U.S. at 530. No single factor is determinative. Id. at 533. “Rather, 

they are related factors and must be considered together with such 

other circumstances as may be relevant.” Id. 

B. Analysis 

¶ 16 Employing the Barker balancing test here, we defer to the 

postconviction court’s factual findings and agree that the delay did 

not violate Hardin’s right to due process in a manner entitling him 

to a new trial. See Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e 

can affirm on any grounds supported by the record.”). 

1. Length of the Delay 

¶ 17 Under these circumstances, we are satisfied that the twelveyear delay was presumptively prejudicial and warrants further 

inquiry into the other Barker factors. See Moody v. Corsentino, 843 

P.2d 1355, 1364 (Colo. 1993) (finding an eight-year delay sufficient 

to proceed to examining the other Barker factors); see also Smith, 

183 P.3d at 730 (finding a six-year delay sufficient). 

2. Reason for the Delay 

¶ 18 The second factor “examines whether the government or the 

criminal defendant is ‘more to blame’ for the delay.” Hoang, ¶ 50 
9 

(citation omitted). The postconviction court found that the 

“negligence” of counsel and of the postconviction court were to 

blame for the twelve-year delay. While any negligence of the 

postconviction court and the prosecution’s counsel is likely 

attributable to the government, see id. (attributing delays caused by 

court reporters to the government), any negligence of Hardin’s 

counsel is, unfortunately, attributable to him, even though his 

attorneys were appointed by the court.5 See Vermont v. Brillon, 556 

U.S. 81, 91 (2009) (“[D]elay caused by the defendant’s counsel is 

also charged against the defendant . . . whether counsel is privately 

retained or publicly assigned . . . .”); Glaser, 250 P.3d at 635. 

Consequently, we conclude that this factor weighs in favor of 

neither Hardin nor the government, as both inexcusably 

contributed to the delay. See Barker, 407 U.S. at 531 (noting that 

delays caused by negligence do not weigh as strongly against the 

government as those caused intentionally). 

 

5 Any issues Hardin may have with the assistance of his appointed 

counsel are not currently before us; they would be part of a 

separate proceeding. 
10 

3. Assertion of Right 

¶ 19 On the third factor, the record evidences Hardin’s numerous 

letters and pro se motions expressing his desire to have his claims 

for postconviction relief decided and his frustration with the 

inaction of the court and of his attorneys. Thus, this factor weighs 

in Hardin’s favor. See Smith, 183 P.3d at 730. 

4. Prejudice 

¶ 20 Regarding the final factor, we examine whether Hardin 

suffered prejudice as a result of the delay, particularly whether the 

delay impaired Hardin’s ability to prepare his case for 

postconviction relief. See Barker, 407 U.S. at 532. 

¶ 21 The record supports the postconviction court’s findings 

regarding the evidence, in the form of tangible records and 

witnesses, available to Hardin at the time of the evidentiary hearing. 

The postconviction court found that only a “small part” of the 

record was unavailable as a result of the delay, and it found the 

witness testimony available to Hardin was sufficient for him to “fully 

and completely” present his claims. Importantly, the court 

reasoned that if anyone was prejudiced by Hardin’s trial attorney’s 

“often dim memory” and the unavailability of certain evidence, it 
11 

was the prosecution. Hardin testified at the hearing and often 

contradicted trial counsel’s testimony. 

¶ 22 While the record shows that the witnesses’ memories had 

dimmed to some degree by the time the evidentiary hearing was 

held, it also shows that the witnesses were able to recall key details, 

such as trial counsel’s strategic reason for declining to object to the 

duplicity or trifurcation6 of the aggravated robbery charge. On this 

record, we cannot say that Hardin was significantly prejudiced in 

presenting his postconviction claims as a result of the delay. 

Deferring to the postconviction court’s factual findings, we agree 

that Hardin has not demonstrated prejudice resulting from the 

delay sufficient to establish a due process violation. 

¶ 23 Accordingly, because Hardin did not make an adequate 

showing of prejudice, we agree with the postconviction court that 

the proper remedy for this delay was to address the motion 

 

6 Initially, the prosecution charged Hardin with a single count of 

aggravated robbery for robbing three different men; this count gave 

rise to a potential duplicity objection. The jury, however, convicted 

Hardin of two separate counts of aggravated robbery and acquitted 

him of a third aggravated robbery count regarding Fisher; the three 

separate counts considered by the jury gave rise to a potential 

trifurcation objection. 
12 

posthaste, rather than to grant a new trial. See People v. Valdez, 

178 P.3d 1269, 1279 (Colo. App. 2007). 

¶ 24 Although we conclude that Hardin received the proper remedy 

for the twelve-year delay, we emphasize that the conduct that 

precipitated this lengthy delay is unacceptable in a legal system 

that is designed to provide criminal defendants with reasonably 

prompt resolutions of their postconviction motions. Under different 

circumstances, such a delay in postconviction proceedings could 

give rise to a cognizable due process violation. Cf. Burkett, 5 A.3d 

at 1275-80 (analyzing a potential due process violation under the 

Barker test in the context of postconviction proceedings).

III. Motion for Postconviction Relief 

¶ 25 Hardin argues that the postconviction court erroneously 

denied his motion for postconviction relief. We disagree. 

A. Sufficient Factual Findings and Legal Conclusions 

¶ 26 Hardin asserts that the postconviction court abused its 

discretion by not making findings of fact or conclusions of law as to 

whether his trial counsel was ineffective in failing to object to the 

duplicity or the trifurcation of the aggravated robbery charge. Had 

trial counsel properly objected and had the charge not been 
13 

trifurcated, Hardin argues, the jury likely would have been unable 

to reach a unanimous verdict or would have acquitted him of 

aggravated robbery and felony murder. At the very least, Hardin 

asserts, this would have preserved the issue and allowed his 

success on direct appeal. Consequently, Hardin asks us to remand 

for further proceedings on this issue. We are unpersuaded. 

1. Preservation, Standard of Review, and Applicable Law 

¶ 27 The parties agree that this issue has been properly preserved. 

¶ 28 In a Crim. P. 35(c) proceeding, a conviction is presumed valid 

and the defendant bears the burden of proving his or her 

entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We 

defer to a postconviction court’s findings of fact if they are 

supported by the record, and we review its conclusions of law de 

novo. See id. at 1063. 

¶ 29 To succeed on an ineffective assistance claim, a defendant 

must show that counsel’s performance was constitutionally 

deficient and that this deficient performance prejudiced the defense. 

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

173 P.3d at 1062. To satisfy the performance prong, the defendant 

must show that counsel’s representation fell below an objective 
14 

standard of reasonableness. Dunlap, 173 P.3d at 1062. To satisfy 

the prejudice prong, the defendant must show that there is a 

reasonable probability that, but for the deficient performance, the 

result of the proceeding would have been different. Id. at 1063; 

People v. Washington, 2014 COA 41, ¶¶ 21-29. If a court 

determines that a defendant has failed to prove either prong of the 

Strickland test, it may deny the claim on that ground without 

addressing the other prong. Strickland, 466 U.S. at 697; see also 

People v. Naranjo, 840 P.2d 319, 324 (Colo. 1992). 

¶ 30 When resolving a motion pursuant to Crim. P. 35(c), a court 

must make findings of fact and conclusions of law sufficient to 

explain the basis of its ruling. People v. Rodriguez, 209 P.3d 1151, 

1157 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010). To 

constitute an abuse of discretion, the postconviction court’s 

decision must be shown to be manifestly arbitrary, unreasonable, 

or unfair. See People v. White, 55 P.3d 220, 223 (Colo. App. 2002). 

A court’s failure to exercise discretion can be an abuse of discretion. 

People v. Darlington, 105 P.3d 230, 232 (Colo. 2005). 
15 

2. Analysis 

¶ 31 Because the postconviction court made factual findings 

regarding the lack of prejudice Hardin suffered as a result of any

alleged ineffective assistance of trial counsel, we defer to those 

findings and conclude that Hardin has not satisfied the prejudice 

prong of the Strickland test. As a result, we see no need to remand 

for further proceedings on this issue, and we affirm. 

¶ 32 In its order denying Hardin’s motion, the postconviction court 

made extensive findings, supported by the record, as to the strength 

of the prosecution’s case and the challenges Hardin had to 

overcome. The postconviction court placed the numerous 

ineffective assistance allegations Hardin made in seeking 

postconviction relief into three groups, and it addressed some 

allegations generally and the rest specifically. Finally, the court 

concluded that “none of the claimed instances of . . . ineffectiveness 

would, separately or together, likely have had any impact on the 

outcome of this case.” 

¶ 33 Moreover, a division of this court found that Hardin had “failed 

to demonstrate any prejudice resulting from the manner in which 

the aggravated robberies were charged,” in part because of the trial 
16 

court’s uncontested power to allow constructive amendments or 

variances of a criminal information at any time before the verdict. 

See Hardin I, slip op. at 6. We find no support in the record for 

Hardin’s speculative assertions that the trial court (1) would have 

likely refused to allow the amendment or variance upon objection or 

(2) abused its discretion in allowing this amendment or variance 

regardless of whether trial counsel made the desired objection. 

¶ 34 We conclude that, although the postconviction court only 

addressed some of Hardin’s arguments specifically, it addressed all 

of his arguments at least generally. Consequently, we conclude 

that, whether implicitly or expressly, the postconviction court 

denied all of Hardin’s arguments. Cf. Bd. of Cty. Comm’rs 

v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (“When a trial court 

does not rule on a motion, it may be considered implicitly denied or 

such failure to rule may be considered harmless error.”) (citation 

omitted). 

¶ 35 We therefore determine that the postconviction court’s findings 

of fact and conclusions of law sufficiently provided the basis of its 

ruling — namely, that Hardin had failed to satisfy the prejudice 

prong of Strickland. See People v. Breaman, 939 P.2d 1348, 1352 
17 

(Colo. 1997); see also People v. Chipman, 2015 COA 142, ¶¶ 88-85 

(concluding that the postconviction court’s order was sufficient to 

set forth the basis of its denial of a Crim. P. 35(c) motion where the 

order was merely a motion from the prosecution asking the court to 

deny the defendant’s motion with the word “granted,” the judge’s 

initials, and the date written on it). The postconviction court’s lack 

of specific factual findings on the arguments at issue, accordingly, 

did not constitute an abuse of discretion. 

¶ 36 Finally, assuming without deciding that trial counsel’s failures 

to object constituted ineffective assistance, we defer to the 

postconviction court’s factual findings, and we determine that 

Hardin has not satisfied the prejudice prong of the Strickland test. 

See Strickland, 466 U.S. at 697. 

B. Waiver of the Right to Testify 

¶ 37 Lastly, Hardin contends that the postconviction court erred in 

finding that he validly waived his right to testify at trial. Hardin 

notes that he initially expressed his desire to testify after the trial 

court’s first advisement regarding his right to testify. Later that 

same day, however, Hardin decided not to testify. Hardin claims 

that trial counsel improperly interfered with his right to testify. 
18 

Also, according to Hardin, the trial court’s second advisement, 

which incorporated the initial advisement by reference and was 

made after he changed his mind about testifying, was insufficient. 

Therefore, he argues, his waiver was not voluntary, knowing, or 

intelligent. 

1. Preservation, Standard of Review, and Applicable Law 

¶ 38 The parties agree that this issue has been properly preserved. 

¶ 39 In a Crim. P. 35(c) proceeding, a conviction is presumed valid 

and the defendant bears the burden of proving his or her 

entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We 

defer to a postconviction court’s findings of fact if they are 

supported by the record, and we review its conclusions of law de 

novo. See id. at 1063. The postconviction court determines the 

weight and credibility to give to the testimony of witnesses at a 

Crim. P. 35(c) hearing. See id. at 1061-62. 

¶ 40 To be valid, a defendant’s waiver of the right to testify must be 

knowing, voluntary, and intelligent. People v. Curtis, 681 P.2d 504, 

514 (Colo. 1984), modified, People v. Blehm, 983 P.2d 779 (Colo. 

1999). To this end, a trial court should advise the defendant 

outside the presence of the jury that (1) the defendant has the right 
19 

to testify; (2) if he or she wants to testify, no one can prevent him or 

her from doing so; (3) if the defendant testifies, the prosecution will 

be allowed to cross-examine him or her; (4) if the defendant has 

been convicted of a felony, the prosecutor will be entitled to ask 

about it; and (5) if the felony conviction is disclosed to the jury, the 

jury can be instructed to consider it only as it bears on the 

defendant’s credibility. Id. at 514-15. Regardless of whether the 

trial court’s Curtis advisement contained the requisite five elements, 

the essential task before the postconviction court is to determine 

whether the defendant’s waiver of the fundamental constitutional 

right to testify was knowing, voluntary, and intelligent. Moore v. 

People, 2014 CO 8, ¶ 22. 

2. Analysis 

¶ 41 We conclude that the postconviction court rightly determined 

that Hardin validly waived his right to testify. 

¶ 42 The record supports the postconviction court’s findings that 

the trial court initially gave Hardin a proper Curtis advisement that 

included the five requisite elements and that, in turn, Hardin gave 

coherent responses. During the second Curtis advisement, given 

after Hardin decided not to testify, the trial court incorporated the 
20 

initial advisement that it had given mere hours earlier and 

reiterated that Hardin had the right to testify in spite of his 

attorney’s advice to the contrary. Hardin’s responses show that he 

remained firm in his decision to forgo testifying. We defer to the 

postconviction court’s factual findings and agree that Hardin’s 

waiver was voluntary, knowing, and intelligent. See Dunlap, 173 

P.3d at 1063. 

¶ 43 Additionally, the record supports the finding that, although 

trial counsel strongly advised Hardin against testifying, trial 

counsel did not “intimidate” Hardin or otherwise improperly 

interfere with his ability to choose whether to testify. The 

postconviction court found trial counsel’s related testimony at the 

evidentiary hearing more credible than Hardin’s. We may not 

disregard this credibility determination. See id. at 1061-62. 

¶ 44 Therefore, we agree that Hardin’s waiver was valid, and we 

affirm.

IV. Conclusion 

¶ 45 The order is affirmed. 

JUDGE BERNARD and JUDGE RICHMAN concur.