The People of the State of Colorado, Plaintiff-Appellee, v. Angel D. Victorino, Defendant-Appellant. (2023)

ORDER AFFIRMED

¶ 1 Defendant, Angel Davila Victorino, appeals the summary denial of his second Crim. P. 35(c) postconviction motion. We affirm.

I. Background

¶ 2 Victorino was found guilty of sexual assault on a child — his stepdaughter, J.M. — and sexual assault on a child by one in a position of trust after a jury trial in which the prosecution presented substantial evidence. J.M.’s grandmother testified that Victorino and J.M. “flew apart” when she entered a bedroom to find the two in bed together, “flushed” and only partially clothed. Victorino was arrested immediately after. DNA samples collected after Victorino's arrest revealed J.M.’s DNA on his penis and on the inside of his boxer shorts. And J.M. testified that Victorino had removed her pants and inserted his penis into her vagina.

¶ 3 The trial court entered Victorino's convictions and adjudicated him a habitual criminal. On direct appeal, a division of this court affirmed. See People v. Victorino, (Colo. App. No. 10CA1273, Aug. 18, 2011) (not published pursuant to C.A.R. 35(f)). The mandate issued on May 14, 2012.

¶ 4 Victorino timely filed his first Crim. P. 35(c) motion, which was later supplemented by counsel. Together, these motions asserted that trial counsel had been ineffective for (1) waiving Victorino's preliminary hearing, (2) waiving his right to a speedy trial over his objection, (3) convincing him not to testify at trial, (4) insufficiently investigating forensic evidence, and (5) failing to consult with or call a forensic expert to testify for the defense. The postconviction court held an evidentiary hearing and denied the motion in a written order. Victorino appealed the order, and a division of this court affirmed. See People v. Victorino, (Colo. App. No. 17CA0470, Sept. 12, 2019) (not published pursuant to C.A.R. 35(e)).

¶ 5 Acting pro se, Victorino filed his second Crim. P. 35(c) motion in 2020. The second postconviction court denied the motion in a written order without appointing counsel or holding an evidentiary hearing. Victorino appeals.

II. Discussion

¶ 6 We review de novo whether a district court erred in summarily denying a postconviction motion. People v. Long, 126 P.3d 284, 286 (Colo. App. 2005). A court may deny a Crim. P. 35(c) motion without a hearing when the motion, the files, and the record clearly establish that the defendant is not entitled to relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶ 7 We perceive as many as forty-eight separate claims of ineffective assistance of trial, appellate, and postconviction counsel, in addition to five claims of trial error, in Victorino's second Crim. P. 35(c) motion. Most of the claims are simply stated in list form, many are repetitive, and as a whole, the motion is difficult to understand. We do our best to make sense of all of Victorino's claims. But ultimately, we conclude that because the claims are procedurally barred or inadequately raised, the postconviction court properly denied the motion without conducting an evidentiary hearing. See Crim. P. 35(c)(3)(IV).

A. Claims Procedurally Barred

¶ 8 As relevant to Victorino's motion — filed more than eight years after his convictions became final — the three-year limitation in section 16-5-402, C.R.S. 2022, bars any postconviction claims that are not the “result of circumstances amounting to justifiable excuse or excusable neglect.” § 16-5-402(2)(d). Victorino does not assert justifiable excuse or excusable neglect for his late filing. Moreover, Crim. P. 35(c)(3)(VII) bars claims that could have been raised in a prior proceeding except, as relevant here, claims based on events that occurred after the initiation of Victorino's prior postconviction proceeding. See Crim. P. 35(c)(3)(VII)(a). Victorino does not assert an exception to the successiveness bar.

¶ 9 To the extent Victorino raises claims that (1) his trial counsel and counsel on direct appeal were ineffective (twenty-six claims); (2) his two convictions violate double jeopardy principles; (3) his right to be present at all stages of his criminal proceedings was violated; (4) the trial court erroneously failed to instruct the jury on voluntary intoxication; and (5) the trial court erroneously allowed a sexual assault nurse examiner (SANE) to testify at trial, we conclude that those claims were properly denied without a hearing. They are time barred and successive (in that each claim could have been raised in a prior appeal or postconviction proceeding).

¶ 10 To the extent Victorino claims, for the first time in his appellate brief, that the postconviction court erred by “presenting the mother's DNA of the victim,” that claim is not properly before us because it was not raised in his postconviction motion. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996).

B. Claims Inadequately Raised

1. Ineffective Assistance of Postconviction Counsel

¶ 11 In broadly construing Victorino's pro se postconviction motion, see People v. Cali, 2020 CO 20, ¶ 34, we interpret it to assert twenty-two claims of ineffective assistance of postconviction counsel — claims excepted from the time bar and successiveness bar discussed in Part II.A. See Crim. P. 35(c)(VII)(a). Victorino alleges that his postconviction counsel's representation was deficient because counsel

• “changed horses” during postconviction proceedings;

• had a conflict of interest;

• failed to properly investigate J.M.’s boyfriend, J.M.’s genitalia, the DNA evidence, or whether Victorino was in a position of trust;

• failed to challenge J.M.’s testimony;

• failed to present evidence of Victorino's wife's DNA on his penis;

• failed to present an independent forensic expert; and

• failed to raise numerous postconviction claims.

¶ 12 Half of Victorino's ineffective assistance of postconviction counsel arguments are presented without sufficient detail to spell out a claim. He does not describe, for example, what it means that his counsel “changed horses” or articulate what conflict of interest he alleges. For the eleven claims appearing only as one or two sentences, because the “allegations of counsel's deficient performance are merely conclusory, vague, or lacking in detail,” we conclude that the claims were properly denied without a hearing. People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007).

¶ 13 As we read Victorino's motion, there are eleven remaining claims in this category for which he provides some detail. He contends that postconviction counsel was ineffective for failing to assert claims of ineffective assistance because trial counsel

1. was not qualified to interpret the forensic evidence;

2. violated his right to be present at all critical stages;

3. did not ask for a jury instruction on voluntary intoxication;

4. did not move to suppress DNA evidence due to late disclosure;

5. did not argue that he was not in a position of trust;

6. did not call DNA and medical experts for the defense;

7. did not subpoena his wife's DNA;

8. did not object to the prosecution's SANE expert testimony;

9. did not present independent forensic experts for the defense;

10. did not argue in support of Victorino's right to represent himself at trial; and

11. failed to present evidence of his intoxication.

¶ 14 To warrant a hearing on a Crim. P. 35(c) motion, a defendant must allege facts that, if true, would entitle the defendant to postconviction relief. Crim. P. 35(c)(3)(IV); see also White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). For claims of ineffective assistance of counsel, a defendant must allege facts that would establish that (1) counsel's performance was outside the wide range of professionally competent assistance; and (2) the defendant was prejudiced by counsel's errors. Strickland v. Washington, 466 U.S. 668, 694 (1984). A district court may summarily deny an ineffective assistance claim if a defendant's factual allegations fail to establish either prong of the Strickland test. See Ardolino, 69 P.3d at 77.

¶ 15 In evaluating the first prong of the Strickland test, we “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. When, as here, a defendant argues that counsel was ineffective for failing to raise certain appellate or collateral issues, the presumption of effective assistance of counsel will be overcome only “when ignored issues are clearly stronger than those presented.” People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007) (quoting Ellis v. Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002)).

¶ 16 Here, Victorino did not argue that any unraised claims were stronger than those raised by postconviction counsel during the first collateral attack on his convictions. Accordingly, he did not establish Strickland’s deficiency prong. See id. And even assuming that counsel's representation was deficient for failing to raise the issues in Victorino's second Crim. P. 35(c) motion, we cannot conceive of any Strickland prejudice in light of the overwhelming evidence presented at trial. See Ardolino, 69 P.3d at 77; see also Strickland, 466 U.S. at 694 (to establish prejudice under Strickland’s second prong, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). Because Victorino did not allege Strickland deficiency or prejudice that would entitle him to postconviction relief, we conclude that the postconviction court properly denied these eleven claims without a hearing.

¶ 17 We further note, for defendant's understanding, that none of the many arguments related to his intoxication at the time of the offenses are of legal consequence. Voluntary intoxication is not a defense to the general intent crime of sexual assault on child. People v. Vigil, 127 P.3d 916, 934 (Colo. 2006).

2. “Actual Innocence”

¶ 18 Victorino's last remaining Crim. P. 35(c) claim reads, in its entirety, “The Defendant's ‘Actual Innocence’ (See Attached Exhibit's [sic] ___________).” There are no attached exhibits. Because this claim is bare and conclusory and lacks supporting factual allegations, it was properly denied without a hearing. See People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).

C. Appointment of Counsel

¶ 19 Victorino requested counsel to assist with his motion, and the postconviction court did not appoint counsel. Because, for the reasons given herein, the motion, files, and record of the case clearly show that Victorino is not entitled to postconviction relief, the court did not err when it refused to appoint counsel. See Silva v. People, 156 P.3d 1164, 1168 (Colo. 2007).

III. Conclusion

¶ 20 The order is affirmed.

FOOTNOTES

FOOTNOTE.  

Opinion by JUDGE DAVIDSON * FN* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2022.

Román, C.J., and Graham*, J., concur CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.