People v. Lopez

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 28, 2025

                                

No. 23CA0430, People v. Lopez — Crimes — Assault in the First
Degree — Serious Bodily Injury with a Deadly Weapon;
Constitutional Law — Eighth Amendment — Proportionality
Review — Per Se Grave or Serious Offenses

     A division of the court of appeals holds that first degree

assault (causing serious bodily injury by means of a deadly

weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se grave or

serious offense after Wells-Yates v. People, 

. The

defendant’s twenty-one-year sentence for that offense thus does not

raise an inference of gross disproportionality. The division also

holds that the defendant’s allegations of ineffective assistance of

counsel were insufficient to warrant a hearing under Crim. P. 35(c).
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 23CA0430
Jefferson County District Court No. 18CR3242
Honorable Robert Lochary, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Isaiah Josiah Lopez,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division III
                         Opinion by JUDGE SCHOCK
                         Dunn and Brown, JJ., concur

                         Announced August 28, 2025


Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1     Defendant, Isaiah Josiah Lopez, appeals the denial of his

 Crim. P. 35(c) motion without a hearing. We affirm. In doing so, we

 hold that first degree assault (causing serious bodily injury with a

 deadly weapon), § 18-3-202(1)(a), C.R.S. 2025, remains a per se

 grave or serious offense after Wells-Yates v. People, 

.

                              I.    Background

¶2     After an altercation during which he shot the victim in the

 knee, Lopez was charged with first degree assault, felony menacing,

 child abuse, two counts of reckless endangerment, two counts of

 possession of a weapon by a previous offender, three counts of

 violating a protective order, and three habitual criminal counts.

¶3     On the morning of the scheduled trial, Lopez pleaded guilty to

 first degree assault in exchange for dismissal of the other counts.

 Because first degree assault is both an extraordinary risk crime and

 a per se crime of violence, Lopez acknowledged that he could be

 sentenced to prison for ten to thirty-two years. See § 18-3-

 202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a), (10)(b)(XII),

 C.R.S. 2025; § 18-1.3-406, C.R.S. 2025. The plea agreement

 specified that the prosecution made no sentencing concessions.




                                       1
¶4    The district court sentenced Lopez to twenty-one years in

 prison, to run consecutively to twelve-year concurrent prison

 sentences he was serving in three other cases. Lopez did not

 appeal. Four months later, he moved for sentence reconsideration

 under Crim. P. 35(b), which the district court denied.

¶5    Lopez later filed a timely pro se Crim. P. 35(c) motion,

 requesting a proportionality review of his sentence and asserting

 two other claims for relief. The district court appointed counsel,

 who filed two supplements. The supplements incorporated the

 three claims Lopez had asserted pro se and added twelve claims of

 ineffective assistance of counsel. The prosecution filed a response.

¶6    The district court denied the motion, including the claims

 raised in the supplements, without a hearing. As relevant to this

 appeal, the court concluded that (1) Lopez’s request for a

 proportionality review was not properly brought under Crim.

 P. 35(c), and (2) the ineffective assistance of counsel claims were

 conclusory and did not allege facts sufficient to support a claim.




                                   2
                               II.   Analysis

¶7     Lopez appeals the district court’s denial of his request for a

  proportionality review of his sentence and five of his claims for

  ineffective assistance of counsel. We address each in turn.

              A.    Legal Standard and Standard of Review

¶8     A Crim. P. 35(c) motion may be denied without a hearing when

  “the motion and the files and record of the case show to the

  satisfaction of the court that the defendant is not entitled to relief.”

  Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations

  are bare and conclusory; (2) the allegations, even if true, do not

  warrant relief; or (3) the record directly refutes the defendant’s

  claims. People v. Duran, 

. A defendant need not

  set forth evidentiary support for the allegations in the motion but

  must assert facts that, if true, would provide a basis for relief.

  White v. Denver Dist. Ct., 

 (Colo. 1988).

¶9     We review de novo the district court’s denial of a Crim. P. 35(c)

  motion without a hearing. People v. Cali, 

.

                        B.    Proportionality Claim

¶ 10   We agree with Lopez that the district court erred by concluding

  that his request for a proportionality review of his sentence was not


                                      3
  a proper Crim. P. 35(c) claim. Although Lopez did not explicitly

  assert that his sentence was grossly disproportionate, that was the

  substance of his claim. See People v. Collier, 

  (Colo. App. 2006) (holding that substance of postconviction motion

  controls how it is designated). He cited the Eighth Amendment’s

  prohibition on grossly disproportionate sentences, see Solem v.

  Helm, 

 (1983), and asserted that he was “entitled

  to a proportionality review of his sentence.” Construed liberally,

  such a request “is a challenge to the constitutionality of a sentence

  under the Eighth Amendment and is properly cognizable under

  Crim. P. 35(c).” People v. Castillo, 

, ¶ 38. The district

  court therefore should have conducted an abbreviated

  proportionality review of Lopez’s sentence.1 See id. at ¶ 36.

¶ 11   But when there is no “need for a refined analysis inquiring

  into the details of the specific offense[] . . . , an appellate court is as

  well positioned as a [district] court to conduct a proportionality



  1 Lopez’s postconviction motion was timely, he did not file a direct

  appeal, and this was his first Crim. P. 35(c) motion. The People
  thus do not argue that the proportionality claim was time barred or
  successive. See People v. Moore-El, 

 (Colo. App.
  2007) (denying request for proportionality review as time barred).

                                       4
  review.” People v. Gaskins, 

 (Colo. 1992),

  abrogated on other grounds by Wells-Yates, ¶ 55. That is the case

  here. Thus, although the district court did not conduct a

  proportionality review, we will conduct that review on appeal. See

  Castillo, ¶ 38. And because we conclude that Lopez’s sentence does

  not raise an inference of gross disproportionality, we affirm the

  denial of this claim. See Duran, ¶ 26 (noting that we may affirm the

  district court’s order on any ground supported by the record).

¶ 12   Proportionality review starts with an abbreviated review

  comparing the gravity and seriousness of the offense with the

  harshness of the penalty. Id. at ¶ 28. Ordinarily, assessing the

  gravity or seriousness of the offense requires a fact-based inquiry

  into “the harm caused or threatened to the victim or society” and

  “the culpability of the offender.” Id. at ¶ 29 (quoting Wells-Yates,

  ¶ 12). But when an offense is per se grave or serious — meaning it

  is “grave or serious in every potential factual scenario” — the court

  may skip the first step of the abbreviated proportionality review and

  proceed directly to the harshness of the penalty. Wells-Yates,

  ¶¶ 13, 63. In assessing the harshness of the penalty, we must take

  into account both the length of the sentence and parole eligibility.


                                     5
  Id. at ¶ 14. If this abbreviated proportionality review does not give

  rise to an inference of gross disproportionality, no further analysis

  is required, and the proportionality challenge fails. Id. at ¶¶ 8, 18.

¶ 13   Lopez pleaded guilty to first degree assault (causing serious

  bodily injury by means of a deadly weapon). See § 18-3-202(1)(a).

  At the time, that crime had been deemed a per se grave or serious

  offense. See People v. Gee, 

; People v. Oldright,

  

. But Wells-Yates “called into question all pre-

  existing per se designations apart from those it identified as

  satisfying the new definition of per [se] grave or serious.” People v.

  Crawley, 

, ¶ 18. While no published opinion has

  addressed whether first degree assault under section 18-3-202(1)(a)

  remains a per se grave or serious offense after Wells-Yates, a

  division of this court has held that extreme indifference first degree

  assault under section 18-3-202(1)(c) does. Duran, ¶¶ 3, 33-36.

¶ 14   We conclude that subsection (1)(a) first degree assault is

  likewise per se grave and serious. That offense, “by its nature, . . .

  involves violence.” Gee, ¶ 60. Its elements include an intent to

  cause serious bodily injury, the use of a deadly weapon, and serious

  bodily injury to the victim. § 18-3-202(1)(a); Oldright, ¶ 14; see also


                                     6
  Duran, ¶ 35 (noting that “serious bodily injury” is “grave harm”).

  And the legislature has designated it as a crime of violence and an

  extraordinary risk crime. See Duran, ¶ 35; § 18-3-202(2)(c); § 18-

  1.3-406(2)(a)(II)(C); § 18-1.3-401(10)(b)(XII). Thus, “[t]he statutory

  elements of [subsection (1)(a) first degree assault] ensure that,

  regardless of the facts and circumstances involved, a defendant who

  stands convicted of . . . such offense will have committed a crime

  that is necessarily grave or serious.” Wells-Yates, ¶ 65.

¶ 15   Because Lopez’s offense is per se grave or serious, we proceed

  directly to the harshness of the penalty. See id. at ¶ 13. Lopez’s

  twenty-one-year sentence was in the middle of the statutory range.

  See § 18-3-202(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (8)(a)(I), (10)(a),

  (b)(XII); § 18-1.3-406. And he will be eligible for parole after serving

  seventy-five percent of that sentence, see § 17-22.5-403(2.5)(a),

  C.R.S. 2025, potentially shortening his actual period of confinement

  for this offense to approximately sixteen years (or less, depending

  on any earned time granted under section 17-22.5-405, C.R.S.

  2025). See Wells-Yates, ¶ 14. Given the gravity of Lopez’s offense,

  this sentence does not raise an inference of gross disproportionality.

  See id. at ¶ 5 (“It is ‘exceedingly rare’ for a sentence to be deemed so


                                       7
  extreme that it is grossly disproportionate to the crime.”) (citation

  omitted). We therefore affirm the denial of this claim.2

                  C.    Ineffective Assistance of Counsel

¶ 16   Lopez next argues that the district court erred by denying his

  claims that his counsel provided ineffective assistance by (1) failing

  to interview witnesses; (2) failing to exercise due diligence in

  preparing for trial; (3) pressuring him to plead guilty; (4) failing to

  visit him in custody before trial; and (5) failing to find and provide

  mitigating information for plea negotiations. He also contends that

  the cumulative effect of these alleged deficiencies prejudiced him.3




  2 Because we conclude that Lopez’s sentence does not give rise to

  an inference of gross disproportionality, we do not address the
  People’s argument that Lopez’s proportionality challenge is barred
  by section 18-1-409(1), C.R.S. 2025, because his sentence is within
  the range to which he stipulated in the plea agreement.

  3 Lopez does not reassert his claims that his counsel provided

  ineffective assistance by failing to (1) challenge the pretrial
  identification; (2) file motions; (3) advise Lopez throughout the case;
  (4) comply with counsel’s duty of loyalty; (5) provide or review
  discovery; (6) investigate the habitual criminal counts; and
  (7) advise Lopez about his right to testify. Nor does he appeal the
  denial of his claim that the Department of Corrections failed to
  apply proper time credits. These claims are all abandoned. See
  People v. Osorio, 

 (Colo. App. 2007).

                                      8
¶ 17   We conclude that the district court correctly denied Lopez’s

  ineffective assistance of counsel claims without a hearing.

                          1.    Legal Standard

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

  defendant must show that (1) counsel’s performance was deficient,

  and (2) the deficient performance prejudiced the defense. Strickland

  v. Washington, 

 (1984). Under the first prong of

  this test, the defendant must show that counsel’s representation

  “fell below an objective standard of reasonableness.” 

.

  Under the second prong, the defendant must show that “there is a

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

  the result of the proceeding would have been different.” 

.

¶ 19   When a defendant pleaded guilty, the defendant must show “a

  reasonable probability that, but for counsel’s errors, he would not

  have pleaded guilty and would have insisted on going to trial.” Hill

  v. Lockhart, 

 (1985); see also People v. Sifuentes,

  

, ¶ 20. To meet this burden, the defendant must

  establish that rejection of the plea “would have been rational under

  the circumstances.” Padilla v. Kentucky, 

 (2010).




                                    9
¶ 20   An ineffective assistance claim may be denied without a

  hearing if the defendant’s allegations fail to satisfy either prong of

  the Strickland test. Ardolino v. People, 

 (Colo. 2003).

                   2.    Failure to Interview Witnesses

¶ 21   Lopez alleged that his counsel failed to interview any of the lay

  witnesses in the case, including the victim. He alleged that the

  witness accounts were conflicting on critical issues like “who had a

  gun, who shot a gun, [and] the victim’s conduct leading up to the

  shooting.” He also alleged that interviews of these witnesses were

  critical to his possible defenses at trial and to his ability to make

  knowing and intelligent decisions about whether to testify and

  whether to go to trial. The district court denied the claim on the

  grounds that (1) disagreement as to trial strategy cannot support an

  ineffective assistance claim, and (2) the allegations were conclusory.

¶ 22   To the extent the district court denied the claim because it

  concerned trial strategy, we disagree. Nothing in the record clearly

  establishes that Lopez’s counsel made a “strategic” decision not to

  interview any lay witnesses, including the victim, or that such a

  decision would have been reasonable under the circumstances of

  this case. See Ardolino, 

 (“If a criminal defendant has


                                     10
  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.”).

¶ 23   Nevertheless, we agree with the district court that Lopez’s

  claim was bare and conclusory. See People v. Venzor, 

 (Colo. App. 2005) (noting that a Crim. P. 35(c) motion may

  be denied without a hearing “if the claims are bare and conclusory

  in nature[] and lack supporting factual allegations”). Although

  Lopez alleged that the witness accounts were “many and

  conflicting,” he did not identify those witnesses, their conflicting

  statements, or how they would have supported his defense at trial.

  See People v. Zuniga, 

 (Colo. App. 2003) (affirming

  denial of a Crim. P. 35(c) motion without a hearing where the

  defendant did not “explain[] what additional investigation counsel

  should have done, what the results of those efforts would have

  been, and how they would have affected the outcome of the case”).




                                     11
¶ 24   Nor did Lopez allege how interviewing these witnesses would

  have caused him not to plead guilty and to insist on going to trial.

  See Hill, 

. At most, he asserted that the interviews

  would have allowed him to make a “knowing and intelligent”

  decision about whether to plead guilty. But he does not allege that

  his decision would have been different — or why. To the extent

  Lopez makes such an assertion on appeal, it is too late. See People

  v. Rodriguez, 

 (Colo. 1996) (rejecting the

  defendant’s “attempts to use his brief on . . . appeal to fortify a

  number of issues inadequately raised or supported by his

  [postconviction] motion”); see also People v. Goldman, 

 (Colo. App. 1996) (“Allegations not raised in a Crim. P. 35(c)

  motion . . . are not properly before this court for review.”).

                  3.   Failure to Exercise Due Diligence

¶ 25   Lopez next alleged that his counsel failed to “perform due

  diligence” by not investigating Lopez’s case or preparing for trial,

  which resulted in counsel “bombard[ing]” Lopez with a “last-minute

  plea on the eve of trial.” Lopez further alleged that if counsel had

  prepared the case for trial, this “last-minute advisement and plea




                                     12
  would not have happened.” Again, the district court denied this

  claim as implicating trial strategy and as conclusory and vague.

¶ 26   A criminal defendant is entitled to a pretrial investigation that

  is sufficiently thorough “to develop potential defenses and uncover

  facts relevant to guilt and punishment.” People v. Davis, 

 (Colo. App. 1992), aff’d, 

 (Colo. 1994).

  Defense counsel therefore “has a duty to make reasonable

  investigations or to make a reasonable decision that makes

  particular investigations unnecessary.” Strickland, 

.

¶ 27   Lopez’s allegations that his counsel “did not investigate” and

  “failed to properly prepare his case for trial” are conclusory. He

  does not specify what his counsel failed to investigate or what else

  should have been done to prepare. See Zuniga, 

.

¶ 28   Moreover, the record refutes Lopez’s only claim of prejudice —

  that the “last-minute advisement and plea would not have

  happened.” As the district court noted, the prosecution re-extended

  the original plea offer just before trial, and Lopez’s counsel promptly

  presented it to him. Lopez did not allege that he would have

  rejected the offer at that point if his counsel had been better

  prepared, only that he would not have felt “bombarded.” Such an


                                    13
  allegation is insufficient to show that “the result of the proceeding

  would have been different.” Strickland, 

.

                    4.   Pressure to Accept Plea Offer

¶ 29   Lopez alleged that his counsel, having failed to prepare for

  trial, contacted Lopez’s family to pressure him to plead guilty. He

  asserted that, as a result, he could not make an informed decision

  about whether to accept the plea offer or go to trial and therefore

  “did not enter a truly knowing and voluntary plea of guilty.”

¶ 30   But pressure alone does not invalidate a guilty plea. See

  People v. McCormick, 

 (Colo. App. 1994)

  (explaining that the “desire to accept the certainty or probability of a

  lesser penalty rather than face a wider range of possibilities” does

  not render a guilty plea invalid). Of course, a plea is invalid when it

  is obtained by “actual or threatened physical harm or by mental

  coercion overbearing the will of the defendant.” Brady v. United

  States, 

 (1970). But Lopez did not allege in his

  motion any coercion by his counsel or his family rising to this level.

¶ 31   Indeed, at the providency hearing, Lopez unequivocally

  affirmed that he was entering his guilty plea knowingly and

  voluntarily. While such a representation does not necessarily


                                    14
  foreclose a challenge to the validity of a guilty plea, see People v.

  Morones-Quinonez, 

, ¶ 17, such statements “carry a

  strong presumption of verity,” Blackledge v. Allison, 

  (1977). See also People v. Canody, 

 (Colo. App.

  2007) (concluding that the defendant’s declarations “plainly

  refute[d] [his] conclusory allegations” that the plea was coerced).

  Lopez did not make any allegations of improper pressure that would

  overcome his statements to the contrary at the providency hearing.

                     5.    Failure to Visit Before Trial

¶ 32   Lopez alleged that after he was transferred from the jail to the

  Department of Corrections (DOC), his counsel did not visit him

  until the night before trial, when counsel advised Lopez to plead

  guilty. Lopez alleged that “because of this, [he] felt ambushed on

  the eve of trial and was unable to make informed decisions about

  his case.”

¶ 33   Lopez was transferred to the DOC about a month and a half

  before his trial was scheduled to begin. Lopez does not explain,

  through specific factual allegations, how additional visits by counsel

  during this period would have caused him not to plead guilty. See

  Hill, 

. Nor does he allege that his counsel failed to


                                     15
  adequately communicate with him in the five months before his

  transfer to the DOC. Again, such bare and conclusory allegations

  concerning counsel’s supposed ineffective assistance “are

  insufficient to demonstrate that a defendant may be entitled to

  postconviction relief.” People v. Phipps, 

, ¶ 36.

                  6.    Mitigation for Plea Negotiations

¶ 34   Lopez claims that his counsel provided ineffective assistance

  in plea negotiations because, “[b]y failing to investigate,” he was

  unable to “provide mitigating information to the prosecution” that

  could have resulted in “leniency and a reasonable plea bargain.”

¶ 35   A defendant’s right to effective assistance of counsel extends to

  the plea bargaining process. Lafler v. Cooper, 

  (2012). But again, the district court correctly rejected this claim

  because the allegations — consisting of two sentences — were too

  conclusory to warrant a hearing. See Venzor, 

.

¶ 36   Not only did Lopez fail to identify what investigation counsel

  should have undertaken or what information might have been

  uncovered, but he also did not allege any facts to support his

  assertion that such information might have led to a more favorable

  plea offer. He did not allege, for example, what evidence could have


                                    16
  been presented or why it would have prompted the prosecution to

  show him more leniency. Indeed, the record suggests that the

  prosecution likely would not have changed its offer. The offer was

  the same as the one the prosecution had previously withdrawn, and

  the prosecution explained at the providency and sentencing

  hearings that it had intended to go to trial and seek habitual

  convictions before re-extending the original offer. Lopez’s motion

  contained no allegations to suggest that unspecified “mitigating

  information” would have led the prosecution to improve that offer.

                         7.   Cumulative Effect

¶ 37   Lopez finally contends that, even if none of his ineffective

  assistance of counsel claims independently establish prejudice, the

  cumulative effect of counsel’s errors does. See People v. Gandiaga,

  

 (Colo. App. 2002) (“[P]rejudice may result from the

  cumulative impact of multiple attorney errors . . . .”). We disagree.

¶ 38   Lopez’s allegations of deficient performance were largely, if not

  entirely, conclusory. But even assuming some of the allegations

  were sufficient, “the assumed or actual errors of counsel . . . were

  neither so numerous nor so prejudicial” as to indicate that, but for




                                    17
  those errors, Lopez would not have pleaded guilty and would have

  insisted on going to trial. Id.; see also Hill, 

.

                             III.   Disposition

¶ 39   The order is affirmed.

       JUDGE DUNN and JUDGE BROWN concur.




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