Peo v. Mendoza
Peo v. Mendoza
Peo v. Mendoza
Opinion
23CA0334 Peo v Mendoza 08-22-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0334
City and County of Denver District Court No. 20CR2589
Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Philipp Mendoza,
Defendant-Appellant.
ORDER AFFIRMED
Division III
Opinion by JUDGE YUN
Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 22, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Philipp Mendoza appeals the district court’s order denying,
without a hearing, his motion to withdraw his guilty plea under
Crim P. 32(d). We affirm the order.
I. Background
¶ 2 Mendoza shot a man twice in the arm and torso. Some twenty
minutes after the shooting, Mendoza called the police and admitted
to shooting the victim but claimed that he acted in self-defense.
The victim survived after undergoing surgery.
¶ 3 The People charged Mendoza with attempted first degree
murder and first degree assault. Mendoza retained private counsel
and, more than two years after the charges were filed, entered into
a plea agreement. The agreement provided that Mendoza would
plead guilty to an added count of attempt to commit second degree
assault in exchange for dismissal of the charged offenses.
¶ 4 At the providency hearing, the court addressed Mendoza
personally “to make sure you understand what you’re doing today,
[and] make sure you understand the consequences of your
decision.” Mendoza acknowledged the written plea agreement and
confirmed that he had initialed each paragraph and signed the last
page. He said his signature indicated that he had gone through the
2
agreement with this attorney “line for line” and that his attorney
had answered any questions he had. One of the paragraphs that
Mendoza signed stated that
[t]he decision to plead guilty is my decision
and it has been made freely and voluntarily.
There has been no threat, coercion, undue
influence, or force used to make me plead
guilty. I know that I do not have to follow my
lawyer’s advice and that I do not have to plead
guilty. This is my decision to plead guilty.
Finally, Mendoza acknowledged that he understood all of the rights
he was foregoing by pleading guilty, including the right to present
evidence in his defense.
¶ 5 But immediately after the prosecutor set out the factual basis
for the plea — that “[Mendoza] had an altercation with [the victim],
during which [Mendoza] was in possession of a firearm,” and that
“[h]e fired a number of times at [the victim,] causing serious bodily
injury” — the district court judge and Mendoza had the following
colloquy:
THE COURT: And is that what happened, sir?
. . . .
[MENDOZA]: That’s what happened. It’s not
all of it, but it is what happened.
3
THE COURT: All right. Well, if there’s more,
that’s what trials are for. Otherwise, if you tell
me that’s what happened, then I’m going to
accept this plea.
[THE PROSECUTOR]: Judge, I’m — I’m
perfectly comfortable acknowledging there —
the trial would’ve been about self-defense. I
mean, and so I think I understand
Mr. Mendoza’s hesitation there . . . .
. . . .
THE COURT: Well, self-defense is an issue for
the jury. You have the right to present that
defense. And I’m sure you’ve spoken about
this with your attorney, whether they think it’s
applicable or they think — they’ve given you
advice about it. The bottom line is if you’re
telling me you’re guilty, it means I’m going to
find you guilty, and you’re not going to come
back to me later and say I didn’t do it. So, you
know, self-defense is a claim for a jury. . . .
[MENDOZA]: I understand I’m pleading to a
lesser charge, Your Honor, and with the advice
of my attorneys . . . I’m moving forward. I’m
moving forward with a guilty plea. I
understand that.
Mendoza confirmed that he understood that he was “giving up the
right to claim self-defense by pleading guilty.”
¶ 6 At the sentencing hearing two months later, plea counsel
informed the district court that he had presented the facts of the
case, including Mendoza’s claim of self-defense, to mock jurors and
4
“were coming out with about fifty percent” that liked the
self-defense argument and “fifty percent that didn’t.” As such, plea
counsel determined that “it was just simply too risky to take a
fifty-fifty self-defense argument to” trial.
¶ 7 Nevertheless, during allocution, Mendoza had a change of
heart about his decision to plead guilty:
THE COURT: Do you want to take this plea?
This is your last chance.
. . . .
[MENDOZA]: You said, if you’re not guilty . . . .
If you’re not guilty don’t plead guilty in my
court. I’m not guilty, Your Honor.
THE COURT: You told me before that you
were, and you wanted this plea.
[MENDOZA]: I . . . did because — out of
duress.
THE COURT: Do you want to withdraw your
plea?
[MENDOZA]: I would like to withdraw my plea.
The prosecutor asked that Mendoza be required to file a motion to
withdraw his plea, and the court agreed.
¶ 8 Instead of filing the motion, Mendoza’s private attorneys filed a
motion to withdraw as counsel. They claimed that, because
5
Mendoza now wished to withdraw his plea, “the interests of counsel
and client [became] implicitly adverse.” The district court allowed
plea counsel to withdraw, and the public defender took over
representing Mendoza and filed a Rule 32(d) motion to withdraw a
guilty plea.
¶ 9 In the motion, Mendoza contended that his plea was
involuntary and he should be allowed to withdraw it because (1) the
fact that he “has repeatedly and persistently claimed an affirmative
theory of innocence demonstrates that he has not actually accepted
a factual basis required to support the current plea”; (2) “his prior
counsel pressured him to take a plea that he never wanted” by
“falsely advis[ing] him that [the victim] . . . was likely to succumb to
his injuries sustained during this incident,” and if that happened,
“Mendoza would face a capital offense, so it was in his best interest
to enter a plea to avoid that scenario”; and (3) plea counsel
“mishandled his case and negotiations.” The People responded by
arguing that Mendoza did not meet his burden to establish a fair
and just reason to withdraw his plea. They also noted that the case
had been “delayed multiple times to allow for full investigation by
the defense and continuing negotiations,” and during this period,
6
“one of the primary witnesses to the shooting passed away, severely
damaging the People’s case and conferring a tremendous windfall
upon” Mendoza.
¶ 10 The district court denied Mendoza’s motion to withdraw his
plea because of his admissions at the providency hearing and given
“[t]he fact that a, if not the, key prosecution witness has died and is
now unavailable to testify.” The court explained that “but for this
fact” it “would probably allow [Mendoza] to withdraw his plea.” But
it concluded that, under the circumstances, ignoring “Mendoza’s
knowing, intelligent, voluntary plea and his admission of the facts
underlying his plea of guilty would not lead to the ‘fair and just’ end
sought by Crim. P. 32(d).”
¶ 11 Ultimately, the district court sentenced Mendoza to four years
in the custody of the Department of Corrections.
II. Analysis
¶ 12 Mendoza contends that the district court reversibly erred by
denying his Rule 32(d) motion to withdraw his guilty plea.
Specifically, he asserts that the court erred by (1) failing to hold a
hearing on his allegation that plea counsel provided ineffective
assistance by misadvising Mendoza that the shooting could become
7
a capital offense and (2) misapplying the non-exhaustive factors
used to evaluate a Rule 32(d) motion.
1
We perceive no reversible
error.
A. Governing Law and Standard of Review
¶ 13 Crim. P. 32(d) allows a defendant to file a motion to withdraw
a guilty plea before sentence is imposed. Kazadi v. People, 2012 CO
73, ¶ 14. However, to warrant such a withdrawal, a defendant has
the burden of establishing a “fair and just reason” for it. Id.
(quoting People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988)). Fair
and just reasons can include
instances where a defendant was surprised or
influenced into a plea of guilty to which the
person had a defense; where a plea of guilty
was entered by mistake or under a
misconception of the nature of the charge;
where such plea was entered through fear,
fraud, or official misrepresentation; where it
was made involuntarily; or where ineffective
assistance of counsel occurred in the process.
1
On appeal, Mendoza does not address the other assertions in his
Crim. P. 32(d) motion, including that plea counsel “mishandled his
case and negotiations.” Accordingly, they are deemed abandoned
and will not be addressed here. See People v. Brooks, 250 P.3d 771,
772 (Colo. App. 2010).
8
¶ 14 When a Rule 32(d) motion rests on a claim of ineffective
assistance of counsel, a defendant has the burden of establishing
that (1) his counsel performed deficiently and (2) a reasonable
probability exists that, but for counsel’s deficient performance, he
would have pleaded not guilty and insisted on going to trial. See
People v. Corson, 2016 CO 33, ¶ 35 (citing Hill v. Lockhart, 474 U.S.
52, 60 (1985)); People v. Madera, 112 P.3d 688, 692 (Colo. 2005)
(concluding that a Rule 32(d) motion premised on ineffective
assistance of counsel must meet the standards both for ineffective
assistance of counsel and for withdrawal of a guilty plea). Failure to
prove either prong is fatal to an ineffective assistance of counsel
claim. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Corson, ¶ 35 (if a defendant has failed to show prejudice, a court
may resolve an ineffective assistance of counsel claim on that basis
and need not address whether counsel’s performance was deficient).
¶ 15 The district court has broad discretion to determine whether
the defendant has established a fair and just reason to withdraw a
guilty plea. Crumb v. People, 230 P.3d 726, 730 (Colo. 2010).
Therefore, we will not reverse the court’s denial of a Rule 32(d)
9
motion unless the court abused its discretion.
2
Kazadi, ¶ 15. A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it applies an incorrect legal
standard. People v. Rodriguez, 2022 COA 98, ¶ 12.
B. Ineffective Assistance of Counsel
¶ 16 In his Rule 32(d) motion, Mendoza alleged that his plea
counsel “falsely advised him that [the victim] . . . was likely to
succumb to his injuries sustained during this incident,” and if that
happened, “Mendoza would face a capital offense, so it was in his
best interest to enter a plea to avoid that scenario.” (Emphasis
added.) Mendoza contends that, because the death penalty was
abolished in Colorado shortly after this case was filed, he
sufficiently alleged ineffective assistance of counsel and the district
court erred by failing to hold an evidentiary hearing on it. The
People concede that “[t]here is no suggestion in the record that this
2
App. 2000), our review should be de novo. But the division in Lopez
reviewed for an abuse of discretion. Id. at 872 (“[W]e conclude that
the trial court did not abuse its discretion . . . .”).
10
case would ever be a death penalty case.”
3
We will therefore
assume that Mendoza adequately alleged deficient performance. We
turn then to whether Mendoza alleged sufficient facts to show that
he was prejudiced by the deficient performance.
¶ 17 Even assuming, as Mendoza argues, that Crim. P. 35(c)
standards regarding when a court may deny relief without a hearing
apply to Rule 32(d) motions, a court may summarily deny a motion
alleging ineffective assistance if the defendant’s allegations are
conclusory, vague, or lacking in detail. People v. Castillo, 2022 COA
2000) (conclusory allegations were not sufficient to warrant a
hearing on a Rule 32(d) claim); People v. DiGuglielmo, 33 P.3d 1248,
1250 (Colo. App. 2001) (district court properly denied relief without
a hearing where the defendant failed to assert facts demonstrating a
fair and just reason for withdrawal).
3
The People submit that Mendoza “never alleged that his attorney
told him he could face the death penalty” before the district court
and therefore we should not consider the argument. But we agree
with Mendoza that he raised this contention by using the term
“capital offense” in his motion. See People v. Smith, 2023 CO 40,
¶ 23 (“[T]he phrase ‘capital offenses’ plainly and unambiguously
refers to offenses for which the General Assembly has statutorily
authorized the imposition of the death penalty.”).
11
¶ 18 In his Rule 32(d) motion, Mendoza asserted that his plea was
involuntary because “he suffered undue pressure from his attorneys
to plead, [and] . . . they inaccurately advised him about the
likelihood of being charged with a capital offense.” But nowhere did
he allege that but for his attorney’s misstatement about the
potential nature of the offense he would have pleaded not guilty and
proceeded to trial. See Corson, ¶ 35. He did not allege that the
potential for the death penalty versus the potential for a sentence to
life in prison without the chance of parole (both contingent on the
victim passing away) affected his decision to plead guilty. See
§ 18-1.3-401(1)(a)(V)(A.1), (V.5)(A), C.R.S. 2023. Nor did he allege
that his counsel’s suggestion that the victim was “likely to succumb
to his injuries” from the shooting affected his decision to plead
guilty over two years after the charges were filed. See People v.
Lopez, 2015 COA 45, ¶ 12 (allegations of ineffective assistance of
counsel that lack sufficient specificity are properly rejected);
People v. Villanueva, 2016 COA 70, ¶ 68 (a conclusory allegation of
prejudice is insufficient under Strickland).
¶ 19 Instead, Mendoza suggested that plea counsel’s reference to a
capital offense contributed to the “pressure” for him to plead guilty.
12
But that is not the same as alleging that but for counsel’s statement
he would have gone to trial on two greater charges — attempted
first degree murder and first degree assault — that would have
exposed him to significantly increased penalties. See Corson,
¶¶ 42-43 (defendant did not demonstrate a reasonable probability
that he would have rejected plea agreement but for counsel’s
deficient advice where defendant received significant benefits from
the agreement). In any event, pressure does not necessarily
invalidate a guilty plea. See, e.g., People v. McCormick, 881 P.2d
423, 427 (Colo. App. 1994) (explaining that the pressure to accept
the certainty of a lesser penalty rather than face the possibility of a
lengthy sentence does not render a guilty plea invalid). But see
Brady v. United States, 397 U.S. 742, 750 (1970) (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.”). And Mendoza did not allege in his motion that
plea counsel threatened him or took any action that overbore his
will. See Lopez, ¶ 12; Villanueva, ¶ 68.
¶ 20 As such, we conclude that Mendoza did not sufficiently allege
in his Rule 32(d) motion that he was prejudiced by plea counsel’s
13
performance. Thus, the district court was not required to hold an
evidentiary hearing. Castillo, ¶ 14.
C. Crim P. 32(d) Factors
¶ 21 Mendoza also contends that the district court misapplied the
non-exhaustive factors used to evaluate a Rule 32(d) motion by
considering prejudice to the prosecution — the death of a key
witness — that existed before the plea agreement was executed and
by failing to address whether his motion was prompt. We are not
persuaded.
¶ 22 In determining whether a defendant has met the burden of
establishing a fair and just reason to withdraw a guilty plea, a
district court should consider a non-exhaustive list of factors
including whether (1) the defendant promptly moved to withdraw
the guilty plea; (2) the prosecution would be prejudiced by the
withdrawal of the guilty plea; and (3) the defendant has shown that
justice will be subverted if the motion is denied. See Crumb,
¶ 23 Even if the district court erred by considering prejudice that
occurred before the plea agreement and by failing to expressly
consider whether the motion was prompt, Mendoza did not meet his
14
burden to show — given, as we discussed above, that his allegation
of ineffective assistance of counsel was insufficient — that justice
would be subverted were his motion denied. Our supreme court
and numerous divisions of this court have emphasized that there
must be some showing that justice will be subverted “[t]o warrant
the exercise of discretion favorable to a defendant concerning a
change of plea.” Maes v. People, 155 Colo. 570, 575, 396 P.2d 457,
459 (1964); see, e.g., Kazadi, ¶ 14; People v. Boling, 261 P.3d 503,
504 (Colo. App. 2011); People v Weed, 830 P.2d 1095, 1098 (Colo.
App. 1991).
¶ 24 Accordingly, the district court did not abuse its discretion by
ultimately concluding that, given “Mendoza’s knowing, intelligent,
voluntary plea and his admission of the facts underlying his plea of
guilty,” allowing Mendoza to withdraw his plea “would not lead to
the ‘fair and just’ end sought by Crim. P. 32(d).”
III. Disposition
¶ 25 The order is affirmed.
JUDGE DUNN and JUDGE MOULTRIE concur.
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