The People of the State of Colorado, Plaintiff-Appellee, v. Antonio Jose Vargas, Defendant-Appellant. (2023)

ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

OPINION is modified as follows:

Caption page currently reads:

Antonio Jose Vargas, Jr.

Defendant-Appellant.

Caption page now reads:

Antonio Jose Vargas,

Defendant-Appellant.

Page 1, ¶ 1 currently reads:

Defendant, Antonio Jose Vargas, Jr., appeals the postconviction court's order denying his Crim. P. 35(c) motion for postconviction relief.

Page 1, ¶ 1 now reads:

Defendant, Antonio Jose Vargas, appeals the postconviction court's order denying his Crim. P. 35(c) motion for postconviction relief.

¶ 1 Defendant, Antonio Jose Vargas, appeals the postconviction court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm the postconviction court's ruling in part, reverse in part, and remand for further proceedings.

I. Background

¶ 2 In January 2010, following a jury trial, Vargas was found guilty of second degree kidnapping, two counts of sexual assault, two counts of unlawful sexual contact, and third degree assault. He was also adjudicated a habitual criminal and a sexually violent predator.

¶ 3 Vargas filed a direct appeal. In his appeal, he contended that the trial court erred by denying a motion for a mistrial based on improper witness testimony; by admitting improper expert testimony; by allowing a Sexual Assault Nurse Examiner to testify regarding hearsay statements; by concluding that there was sufficient evidence to sustain his convictions; by concluding that there was sufficient evidence to sustain the habitual criminal adjudication; and by designating him a sexually violent predator. A division of this court affirmed his convictions but remanded for specific findings regarding Vargas’ sexually violent predator designation. People v. Vargas, (Colo. App. No. 10CA0427, June 27, 2013) (not published pursuant to C.A.R. 35(f)).

¶ 4 In July 2015, Vargas filed a pro se Crim P. 35(c) motion advancing ten claims of ineffective assistance of trial counsel and requesting the appointment of postconviction counsel. The court appointed postconviction counsel, and postconviction counsel was afforded the opportunity to supplement Vargas’ Crim. P. 35(c) motion.

¶ 5 In July 2017, postconviction counsel filed a supplemental motion raising eight claims of ineffective assistance of trial counsel. The claims were that

• trial counsel failed to accurately and effectively advise Vargas regarding his right to testify;

• trial counsel failed to properly raise any challenges for cause;

• trial counsel failed to effectively cross-examine a prosecution witness;

• trial counsel failed to fully litigate a mandatory disclosure issue as to expert testimony;

• trial counsel abandoned an objection to expert testimony;

• trial counsel failed to object to a witness remaining in the courtroom during other witness’ testimony;

• trial counsel failed to properly address the trial court's handling of a juror question;

• trial counsel failed to object to police officer and expert testimony regarding patterns of domestic violence; and that

• trial counsel was ineffective in choosing a “consent” defense.

Additionally, Vargas raised an “actual innocence” claim, contending that there is affirmative evidence of his innocence.

¶ 6 The postconviction court denied most of the claims in Vargas’ Crim. P. 35(c) motion without a hearing. The court granted an evidentiary hearing on Vargas’ right-to-testify claim but ultimately denied that claim as well.

¶ 7 Vargas now appeals the denial of his postconviction motion. On appeal, Vargas contends that the postconviction court erred by denying his claim of actual innocence, that the postconviction court erred by not granting Vargas a new trial based on the evidence presented at the evidentiary hearing for his right-to-testify claim, and that he was entitled to an evidentiary hearing on four of the ineffective assistance of counsel claims that the postconviction court summarily denied.

¶ 8 We address Vargas’ contentions below.

II. Denial of Vargas’ “Actual Innocence” Claim

¶ 9 Vargas’ first contention is that the postconviction court erred by denying his “freestanding claim of actual innocence.” We aren't persuaded that the postconviction court erred.

A. Additional Facts

¶ 10 According to the People's evidence, Vargas grabbed his estranged wife, the victim, by the hair, shoved her into a van, handcuffed her, taped her mouth, and drove her to his property. Throughout the course of the evening, Vargas moved her to a truck, hogtied her, and sexually assaulted her. At trial, Vargas maintained his innocence and pursued a consent theory of defense — contending that he and the victim had consensual sexual intercourse two days prior to the alleged assault but that he wasn't with the victim when the incident allegedly occurred. He also asserted that the victim fabricated the story of the assault after learning that he had a new girlfriend and after he had sought and obtained a protective order against the victim.

¶ 11 Following a jury trial, Vargas was convicted of second degree kidnapping, sexual assault — digital penetration of the vagina, sexual assault — penile penetration of the vagina, unlawful sexual contact — penile penetration of the vagina, and third degree assault. He was also adjudicated a habitual criminal and designated a sexually violent predator.

¶ 12 Vargas was sentenced to ninety-six years in prison for the kidnapping charge and forty-eight years to life for the other charges, to run consecutively to the kidnapping charge.

¶ 13 In his pro se Crim. P. 35(c) motion, Vargas sought relief on the grounds of “actual innocence.” Accompanying his motion, Vargas submitted affidavits from himself, his two sons, and another individual stating that he wasn't with the victim the night of the assault and that he was, instead, at his home during the time of the alleged offenses.

¶ 14 On appeal, Vargas contends that the affidavits submitted with his Crim. P. 35(c) motion presented affirmative evidence of his actual innocence.

B. Analysis

¶ 15 The postconviction court addressed Vargas’ actual innocence claim under the newly discovered evidence framework of Crim. P. 35(c), ultimately concluding that “the information contained in the affidavit was clearly known to [Vargas] at the time of trial” and therefore wasn't new evidence. On appeal, Vargas contends that his actual innocence claim shouldn't be reviewed under the new evidence framework, but, instead, that we should recognize actual innocence as a freestanding claim and treat it as one.¹ A freestanding claim of actual innocence is a claim that isn't accompanied by an independent constitutional violation. See, e.g., Herrera v. Collins, 506 U.S. 390, 416 (1993) (“Our federal habeas cases have treated claims of ‘actual innocence,’ not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive.”).

¶ 16 Based on the briefing, both parties agree that the law isn't clear regarding whether Colorado recognizes a freestanding actual innocence claim.² But even assuming there is a pathway to assert a freestanding actual innocence claim under Colorado law, the evidence presented here is insufficient to warrant an evidentiary hearing on such a claim.

¶ 17 If a freestanding claim of actual innocence exists, it would have to overcome an “extraordinarily high threshold.” See John M. Leventhal, A Survey of Federal and State Courts’ Approaches to a Constitutional Right of Actual Innocence: Is There a Need for a State Constitutional Right in New York in the Aftermath of CPL § 440.10(1)(G-1), 76 Alb. L. Rev. 1453, 1464–65 nn.83–95 (2013) (collecting cases); see also Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (“Requiring affirmative proof of innocence is appropriate, because when a petitioner makes a freestanding claim of innocence, he is claiming that he is entitled to relief despite a constitutionally valid conviction.”).

¶ 18 Other states that recognize freestanding claims of actual innocence vary on the standards they apply, but all require the defendant to clear a high bar to assert such a claim.

¶ 19 In Illinois, for example, to pursue an actual innocence claim, a defendant must present new evidence that is “ ‘of such conclusive character’ as would ‘probably change the result on retrial.’ ” People v. Washington, 665 N.E.2d 1330, 1337 (Ill. 1996) (quoting People v. Silagy, 507 N.E.2d 830, 834 (Ill. 1987)). In Missouri, the state supreme the court held that the petitioner must “make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.” State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003). In Iowa, “[f]or an applicant to succeed on a freestanding actual-innocence claim, the applicant must show by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence.” Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018).

¶ 20 Other jurisdictions have codified freestanding claims of actual innocence.³ A Maryland statute uses a standard of “substantial or significant possibility that the result may have been different.” Md. Code Ann., Crim. Proc. § 8-301(a)(1) (West 2022). In the District of Columbia, a statute explicitly assigns different remedies upon meeting respective standards. D.C. Code Ann. § 22-4135 (West 2022). If the court determines “it is more likely than not that the movant is actually innocent of the crime,” the remedy is to grant a new trial. D.C. Code Ann. § 22-4135(g)(2). If the court determines “by clear and convincing evidence that the movant is actually innocent of the crime,” the remedy is to vacate the conviction. D.C. Code Ann. § 22-4135(g)(3).

¶ 21 If Colorado were to recognize a standalone actual innocence claim, we are convinced it would require a similarly exacting standard. See, e.g., Roper, 102 S.W.3d at 548 (requiring “clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment”); Schmidt, 909 N.W.2d at 797 (requiring that “no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence”). Whatever its contours, it would certainly be higher than the “reasonable probability” of a different outcome, as required by the prejudice prong of Strickland v. Washington, 466 U.S. 668, 690 (1984). See People v. Washington, 2014 COA 41, ¶ 28 (“[T]o prove prejudice under Strickland, a 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.”); see also Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

¶ 22 And more importantly for our analysis, whatever the precise requirements for stating a standalone actual innocence claim might be, Vargas’ motion and supporting documents didn't meet them. Vargas’ pro se motion contained six affidavits — the four that are relevant here are one from himself; one from a family friend, A.V.; and one from each of his two sons, M.L.V. and J.A.V. The information contained in these affidavits (including his own) purports to show that Vargas was home the night of the alleged kidnapping and assault. His affidavit states that he wasn't with the victim; his two sons’ affidavits state that he was home with them; and A.V.’s affidavit states that Vargas was at the home that night.

¶ 23 In his briefing, Vargas contends that these signed affidavits are compelling evidence of his actual innocence. We disagree. Some of the evidence set forth in the motion was presented at trial — specifically, one son, M.L.V., testified that he was with Vargas the night of the incident. The other affidavits, while they are from witnesses who didn't testify at trial, still don't lead us to conclude that “no reasonable fact finder could convict [Vargas] of the crimes for which the sentencing court found [him] guilty in light of all the evidence, including the newly discovered evidence.” See Schmidt, 909 N.W.2d at 797. The evidence presented here by Vargas is simply additional evidence of a theory presented at trial through his son's testimony, and it doesn't “make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.” Roper, 102 S.W.3d at 548.

¶ 24 Simply put, even if Colorado recognized a freestanding actual innocence claim — independent of a newly discovered evidence or ineffective assistance counsel claim — Vargas’ motion and affidavits failed to state one. Therefore, we affirm the postconviction court's order to the extent that the postconviction court rejected Vargas’ claim of actual innocence.⁴

III. Ineffective Assistance of Counsel

¶ 25 Vargas next contends that the postconviction court erred by denying his ineffective assistance of trial counsel claims. Specifically, Vargas contends that the trial court erred by not granting Vargas a new trial based on the evidence presented at the evidentiary hearing on his right-to-testify claim. Vargas also contends that the postconviction court erred by summarily denying his claims that trial counsel was ineffective by failing to conduct a meaningful investigation into, and failing to challenge at trial, the serological evidence; failing to deliver a consistent theory of defense; and failing to call witnesses who could have corroborated his theory of defense. Finally, Vargas contends that trial counsel's errors cumulatively deprived him of his right to effective assistance of counsel.

¶ 26 We first address the claim denied following an evidentiary hearing, then we turn to the summarily denied claims, and, finally, we address cumulative error.

A. Claim Denied After Evidentiary Hearing

¶ 27 To prevail on a claim of ineffective assistance of counsel under Crim. P. 35(c), a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced him. Strickland, 466 U.S. at 687-88.

¶ 28 Vargas contends that the postconviction court erred by denying his ineffective assistance of counsel claim regarding his right to testify following an evidentiary hearing. When a postconviction court conducts a hearing on an ineffective assistance of counsel claim, the defendant bears the burden of proving his claim by a preponderance of the evidence. People v. Smith, 2017 COA 12, ¶ 12.

¶ 29 Reasonableness is assessed based on a consideration of “all the circumstances.” Strickland, 466 U.S. at 688. Prevailing norms of practice can serve as guides to determine reasonableness, but no more than guides, because of the variety of circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant. Ardolino, 69 P.3d at 76. Thus, defense counsel must be given wide latitude in making tactical decisions. Strickland, 466 U.S. at 689.

¶ 30 A postconviction court's ruling on a Rule 35(c) motion following a hearing presents a mixed question of fact and law. Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). We defer to the court's findings of fact if they have record support, but we review any legal conclusions de novo. Id.

1. Additional Facts

¶ 31 In his supplemental Crim. P. 35(c) motion, Vargas contended that he “wanted to exercise his right under the federal and Colorado constitutions to testify in his own defense, and only did not because he wanted to preserve his ability to file an appeal in his case and was told by defense counsel that he would not be able to.” The postconviction court held an evidentiary hearing on this claim.

¶ 32 At the postconviction hearing, trial counsel and Vargas both testified. Vargas testified that he would have testified at the trial if not for trial counsel's advice that if he testified he wouldn't have been able to appeal his conviction. Trial counsel testified that she would never tell a client they could not seek an appeal if they testified at trial because that is an incorrect statement. After hearing the testimony, the postconviction court made the following factual findings and ruling:

The Court simply does not find the defendant to be credible regarding his claims in this case. The evidence is that the defendant had an experienced defense attorney. [Defense counsel] said she always tells the defendant that it is the defendant's choice to testify. Contrary to what ․ Vargas said, [defense counsel] said that the defendant never told her that he wanted to testify. The Court finds [defense counsel] to be credible. When asked about her experience defending people and whether she specifically told the defendant that he couldn't appeal if he testified, she said “I didn't say it to anybody.” The Court can't even imagine an attorney saying what the defendant claims because it isn't a law and never has been. It's also not like this is a confusing area of the law where there is some gray area or the law is unclear. [Defense counsel] clearly knew what the law was, and she was right. You can appeal even if you testify. She said she would never tell anyone what the defendant claims that she told him, and the Court believes her ․

The Court finds that the prosecution is correct in this case. This involves a determination by the Court regarding who is credible and what facts should be believed. The Court finds Ms. Elkins is credible and the facts claimed by the defendant should not be believed. That's what the Court finds. Based on that, the Court will deny the defendant's motion for a Rule 35(c).

2. Discussion

Under the Strickland standard, a defendant will establish a violation of his right to testify when he proves, by a preponderance of the evidence, the following elements: that defense counsel's action or inaction in counseling the defendant on his right to testify fell below the professional level of competence demanded of attorneys practicing in criminal law at the time of the defendant's trial and thereby deprived the defendant of his ability to make an informed and voluntary decision on whether to exercise his right to testify; and that there is a reasonable probability that, but for defense counsel's deficient performance, the result of the trial would have been different.

People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).

¶ 33 The trial court made a determination that trial counsel's testimony was credible and Vargas’ testimony wasn't. The trial court found that trial counsel never advised Vargas that he would not be able to appeal his case if he testified at trial, and we can't disregard the trial court's credibility determination. See People v. Hardin, 2016 COA 175, ¶ 43 (the court of appeals may not disregard a postconviction court's credibility determination that trial counsel was more credible than the defendant).

¶ 34 Accordingly, we affirm the postconviction court's determination that trial counsel wasn't ineffective in her advisement of Vargas regarding his right to testify.

B. Summarily Denied Ineffective Assistance of Counsel Claims

¶ 35 Next, we turn to Vargas’ remaining ineffective assistance of counsel claims, which the postconviction court denied without a hearing.

1. Applicable Law

¶ 36 We review de novo a postconviction court's summary denial of a Crim. P. 3(c) motion. People v. Joslin, 2018 COA 24, ¶ 5. A court may deny the motion without a hearing if “the motion, the files, and the record clearly establish that the defendant is not entitled to relief.” People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007). Courts may resolve an ineffective assistance claim on the basis of “an insufficient showing [as to] one” of the prongs alone. Strickland, 466 U.S. at 697. And the postconviction court's ruling may be affirmed on any ground supported by the record, regardless of whether that ground was relied upon by the court. People v. Scott, 116 P.3d 1231, 1233 (Colo. App. 2004). If it is clearly established by the record that the allegations presented are without merit, the motion may be denied without a hearing. Ardolino, 69 P.3d at 77.

¶ 37 Where the “motion, files, and record in the case [are] insufficient to establish either that the acts and omissions of counsel identified by the defendant were reasonable strategic choices or that they, in any event, did not prejudice [the] case, we remand for an evidentiary hearing on the allegations.” Id. at 75.

2. Serological Evidence Claim

¶ 38 Vargas contends that trial counsel provided ineffective assistance by failing to conduct a reasonable investigation into the serological evidence against him and by failing to consult with experts in serology, DNA testing, or forensic pathology. Relatedly, Vargas contends that trial counsel was ineffective by delivering inconsistent opening and closing statements. Specifically, Vargas contends that the serological evidence presented at trial, and defense counsel's handling of that evidence, wasn't supportive of the theory of defense.

a. Additional Facts

¶ 39 At trial, Vargas’ theory of defense was that the victim and Vargas had consensual intercourse two days before the alleged incident. Defense counsel opened and closed Vargas’ case with this theory.

¶ 40 The prosecution called Stefanie Trahey from the Colorado Bureau of Investigation to testify. Trahey, a laboratory agent, testified as an expert in the areas of serology and forensic DNA analysis. Trahey testified about the serological and DNA testing she conducted on the victim's underwear, panty liner, and sweatshirt. Additionally, Trahey testified that she tested

sixteen items contained in [the Sexual Assault Nurse Examination kit], all individually sealed in their own envelopes. I did testing on the items that were within the kit. There were cervical swabs, vaginal swabs, a vaginal slide, a cervical slide, anal swabs and an anal slide, oral swabs and oral slides, swabs that were collected from [the victim's] external genitalia area. There were swabs that were labeled as foreign stains on the body, possible saliva, right neck, which I would assume would be lateral neck area. There were finger nail clippings, a head hair control, pubic hair control, a pubic hair combing and a drape as well as buccal swabs collected from [the victim] within this packet.

¶ 41 When asked about the test results, Trahey testified that

the DNA profile developed from the sperm fraction of the cervical swabs, Item1D-1, matched the DNA profile developed for Mr. Vargas, which was our Item2A-1. To a reasonable degree of scientific certainty, Mr. Vargas — I'm sorry, and in the absence of an identical sibling, Mr. Vargas is the source of the DNA profile developed from the sperm fraction of the cervical swab, Item1D-1.

¶ 42 She also testified that

the DNA profile developed from the [sweatshirt] cuff, the stain on the [sweatshirt] cuff, 5-2, matched the DNA profile that was developed for Mr. Vargas, our Item 2A-1. Again, to a reasonable degree of scientific certainty, in the absence of an identical sibling, Mr. Vargas is the source of the DNA profile developed from Item 5-2.

Defense counsel asked Trahey four questions on cross examination: three had to do with scientifically determining the age of blood, the fourth was a question about how long spermatozoa can remain in a vagina, to which Trahey responded, “[A]fter seventy-two hours it looks fairly bleak to find spermatozoa within that area.”

¶ 43 The prosecution also called Yvonne Woods, another laboratory agent from the Colorado Bureau of Investigation, to testify. Woods testified that she examined eight hairs that were collected from the scene of the assault. On direct examination, Woods testified that

three of them exhibited characteristics, microscopic characteristics of having been forcefully removed; and the remaining five of those eight hairs were hair fragments, meaning that there was no root on those hairs.

¶ 44 Defense counsel asked Woods about how hair is transferred from place to place, and how hair can be pulled out in different ways — such as combing or brushing hair.

b. Application

¶ 45 Vargas contends that defense counsel's failure to consult with experts in serology, DNA testing, or forensic pathology, and defense counsel's failure to meaningfully confront the serological evidence at trial, amounted to ineffective assistance of counsel and fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 690-91 (counsel's strategic and tactical decisions can constitute deficient performance if the defendant can overcome the presumption that counsel's conduct might be considered sound trial strategy or demonstrate that a strategic decision made after less than complete investigation wasn't reasonable); see also People v. Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011) (“To prevail on a claim of ineffective assistance of counsel, a defendant must show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance.”).

¶ 46 Additionally, Vargas contends that presenting the consent theory of defense in both opening and closing without support for the theory in the form of expert testimony or through cross examination of the prosecution's experts was ineffective assistance of counsel and prejudicial given the amount and nature of the inculpatory DNA and serological evidence. We disagree with Vargas’ contentions regarding defense counsel's handling of the serological evidence and defense counsel's and defense counsel's presentation of the consent theory.

¶ 47 In support of his claim, Vargas attached an affidavit from Dr. Phillip Danielson, Ph.D., a professor at the University of Denver. In his affidavit, Dr. Danielson states that the serological evidence presented at trial is consistent with a sperm deposit sometime in the range of twelve to seventy-two hours prior to collection. Dr. Danielson also averred that additional testing could have been conducted in order to add additional data to the timeline of the deposit.

¶ 48 While Dr. Danielson's affidavit does provide information regarding various types of additional testing that could have been conducted, we conclude that the information in the affidavit is the same or substantially similar to the evidence presented by Trahey at trial during direct and cross-examination. Specifically, defense counsel challenged Trahey's testimony regarding the age of the sperm deposit and established that the sample could have been deposited up to seventy-two hours prior to collection, which is entirely consistent with Dr. Danielson's affidavit.

¶ 49 The questioning on cross examination was also consistent with defense counsel's theory that the deposit could have occurred prior to the alleged incident. The consent theory was that Vargas and the victim had consensual sexual intercourse two days before the alleged incident, but that they were not together on the night of the alleged incident. Trahey testified that the sperm deposit could have been seventy-two hours old, meaning it could have occurred when Vargas contends it occurred. Defense counsel confirmed that the hair belonging to the victim that was found at the scene could have come out from combing or brushing and could have ended up at the scene without the victim ever actually being there. See People v. Newmiller, 2014 COA 84, ¶ 60 (“[T]rial counsel need not introduce expert testimony on [their] client's behalf if [they are] able effectively to cross-examine prosecution witnesses and elicit helpful testimony.” (quoting Reinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004))).

¶ 50 Moreover, we are not convinced that Vargas’ bald assertion that, had an expert been consulted or retained, defense counsel would have been able to “dispute the prosecution's time frame of the alleged incident and further the defense theory of consensual intercourse between Vargas and [the victim]” is sufficient to establish the requisite prejudice. See People v. Villanueva, 2016 COA 70, ¶ 68 (a conclusory allegation of prejudice is insufficient under Strickland); see also People v. Aguilar, 2012 COA 181, ¶ 12 (concluding that, “after examining the record[,] ․ [the] defendant failed to allege[ ] facts establishing that counsel's [decision not to retain an expert to rebut the prosecution's expert] was outside the wide range of professionally competent assistance” because “defense counsel's decision whether or not to call his own ․ expert was a matter of trial strategy” and the “[d]efendant's assertion that an expert could have contradicted the prosecution's evidence is facially speculative”).

¶ 51 Defense counsel has final authority to make decisions that are regarded as strategic or tactical in nature. Arko v. People, 183 P.3d 555, 558 (Colo. 2008). Such decisions include whether to consult or retain an expert, see People v. Smith, 2022 COA 56, ¶ 30, and whether or how to conduct cross examination, Arko, 183 P.3d at 558.

¶ 52 Vargas contends that had defense counsel consulted with experts, she would have been better able to challenge the serological evidence. But a defendant “must do more than simply allege that other evidence could have aided [their] defense; [they] must identify the evidence and demonstrate that it would have advanced [their] defense.” See Villanueva, ¶ 67 (emphasis added); People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (rejecting the defendant's claim that counsel was ineffective for conducting an inadequate investigation because, among other things, he did not explain how the results of an additional investigation would have affected the outcome of the case); see also People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“[I]f the claims are bare and conclusory in nature, and lack supporting factual allegations, the [Crim. P. 35(c)] motion may ․ be denied without a hearing.”). Vargas has failed to show that had an expert been consulted or had defense counsel engaged in a different tactic during cross examination, his consent theory of defense would have been advanced.

¶ 53 For the above reasons, we conclude that the postconviction court didn't err by summarily denying Vargas’ ineffective assistance of counsel claims pertaining to trial counsel's decisions regarding consulting experts in serology, DNA testing, or forensics; trial counsel's tactics in confronting the serological evidence at trial; and the decision to, and manner of, advancing the consent theory of defense.

3. Failure to Call Witnesses Claim

¶ 54 Vargas next contends that trial counsel was ineffective for failing to call four witnesses who — he contends — were available at the time of trial and would have testified in support of his theory of defense.

a. Preservation

¶ 55 Before we address the merits of this contention, we address, and reject, the People's contention that Vargas waived this claim. In his supplemental Crim. P. 35(c), Vargas stated,

¶ 56 The People contend that because Vargas

In preparing for trial, defense counsel conducted extensive investigation with eye and character witnesses prior to trial, but did not consult with any experts beyond a phone call about the hair evidence.

conceded in his supplemental Crim. P. 35(c) motion that trial counsel conducted a thorough investigation prior to trial with the various eyewitnesses and character witnesses, his ineffective assistance of counsel claims related to the investigation should not be considered on appeal.

¶ 57 We reject this argument. We must indulge every presumption against waiver, and we can't glean from that single sentence that Vargas “intentionally, freely, deliberately” intended to waive this claim. See Smith, 2022 COA 56, ¶¶ 14, 16. Therefore, we reject the People's waiver argument, and turn to our review of Vargas’ contention.

b. Merits

¶ 58 In his Crim. P. 35(c) motion, and on appeal, Vargas contends that trial counsel should have called his son, J.A.V.; his son, M.L.V.; A.V., who was staying with Vargas at the time; Vargas’ mother; and one of Vargas’ employees to testify.

¶ 59 Vargas’ two sons, J.A.V. and M.L.V., as well as A.V., all state in their affidavits that they were with Vargas on the night of the alleged incident. Vargas’ mother and Vargas’ employee both state in their affidavits that they were with Vargas and the victim the morning after the alleged incident.

¶ 60 Vargas contends that defense counsel was ineffective for failing to call these witnesses to testify because they would have supported his theory of defense — that he wasn't with the victim on the night of the alleged incident and that the victim was uninjured and acting normally the morning after the alleged incident. We will address each potential witness separately.

i. M.L.V.

¶ 61 The record reflects, and the postconviction court noted in its order, that Vargas’ son M.L.V. did testify at trial. Indeed, M.L.V. testified (consistent with his affidavit) that Vargas was at home all night on the night of the incident. Because M.L.V. did testify and his testimony was in line with Vargas’ theory of defense, we aren't clear on what additional information M.L.V. could have provided or where the alleged ineffective assistance of counsel lies. Therefore, we conclude that the postconviction court properly rejected Vargas’ claim that counsel was ineffective for failing to call M.L.V. to testify in support of his defense. See People v. Rivas, 77 P.3d 882, 893–94 (Colo. App. 2003) (finding no prejudice from counsel's failure to call witnesses who were willing to testify for defendant because their testimonies were impeachable on multiple grounds and would have been duplicative of similar testimony already admitted at trial).

ii. J.A.V.

¶ 62 Vargas contends that counsel was ineffective for failing to call his other son, J.A.V., to testify. Vargas contends that J.A.V. was available and willing to testify and that his testimony would have “changed the outcome of the trial” and that J.A.V. could have “corroborated Vargas’ theory of defense.”

¶ 63 The postconviction court rejected the claim without a hearing, finding that the record “reflects that [Vargas’] other son [J.A.V.] was not available to testify as he had run away and no one knew where he was.”

¶ 64 While him being “on the run” may be true, his unavailability to testify at trial is not so clear from the record.

¶ 65 In their answer brief, the People contend that J.A.V. was “on the run” from a group home, and therefore unavailable at the time of trial. To support their contention, the People point to a portion of the trial transcript in which the victim was asked by the prosecutor:

[Prosecutor]: How many children do you have?

[Victim]: We have two boys.

[Prosecutor]: What are their names?

[Victim]: [M.L.V.] and [J.A.V.].

[Prosecutor]: Are they with you now?

[Victim]: No, one is actually on the run; and the other one is on the run from Hudson group home.

¶ 66 There is no other support in the record explaining J.A.V.’s absence nor is there any evidence of defense counsel's efforts to locate him. More importantly, as evidenced by the facts and circumstances of this case, being described by the victim as “on the run” didn't equate to a witness’ unavailability to testify. Indeed, in the same portion of the record that the People rely on for J.A.V.’s unavailability, the victim also says that M.L.V. was “on the run.” But unlike J.A.V., M.L.V. did testify, belying the People's contention that being described as “on the run” is tantamount to being unavailable to testify. Thus, on this record, we can't conclude that being “on the run” is the same as being unavailable, and we remand this issue for an evidentiary hearing as to both prongs of Strickland, as J.A.V.’s proffered testimony, if found credible, would seem to corroborate Vargas’ hotly disputed alibi. Cf. Washington, ¶ 35 (the defendant failed to prove that counsel was ineffective for not calling a witness to testify because the proffered testimony would have been cumulative of other testimony and not corroborative of any material fact); People v. Green, 38 Colo. App. 165, 167, 553 P.2d 839, 840 (1976) (“To deny [the] defendant the right to present [a]ny independent corroborative testimony on a material issue must be considered prejudicial error.”).

iii. A.V.

¶ 67 A.V. was endorsed as a witness by the defense. In his affidavit appended to Vargas’ Crim. P. 35(c) motion, A.V. avers that he was with Vargas (and his children) on the night of the alleged incident and that he was available and willing to testify in accord with his affidavit. Vargas contends that trial counsel rendered ineffective assistance by failing to call A.V. as a witness at trial. In its written order, the postconviction court didn't address this claim.

¶ 68 In their answer brief, however, the People contend that “[w]hile trial counsel endorsed [A.V.] prior to trial, she was unable to provide any location for his whereabouts. The prosecution was also unable to locate [A.V.].” In support of their contention, the People point to defense counsel's Endorsement of Additional Witnesses, which was filed prior to trial.

¶ 69 True, the only information regarding A.V. states “address not yet known.” But there is no other information in the record explaining A.V.’s absence from trial or trial counsel's decision not to call him to testify. Because the record regarding A.V. doesn't establish why defense counsel didn't call him to testify (creating an issue of fact regarding deficient performance), we remand this issue for an evidentiary hearing on both prongs of Strickland, as A.V.’s proffered testimony (like that of J.A.V.’s), if found credible, would seem to provide independent corroboration of Vargas’ hotly contested alibi. Cf. Washington, ¶ 35; Green, 38 Colo. App. at 167, 553 P.2d at 840.

iv. Vargas’ mother and Vargas’ employee

¶ 70 Both Vargas’ mother and Vargas’ employee aver they would have testified that, the morning after the alleged crime, they ate breakfast with Vargas and the victim and that the victim acted normally and didn't appear to be injured. Again, the postconviction court didn't address this claim.

¶ 71 In their briefing, the People contend that the information contained in the affidavits can't meet the second prong of Strickland because it's “consistent with [the victim's] trial testimony that she pretended to be fine while eating with her family the next day in order to appease defendant until she could escape,” making it cumulative of evidence that was presented at trial. In our review of the transcript, however, there is no instance where the victim says she “pretended” to be fine while eating with her family.

¶ 72 With respect to the events of the following morning, the victim testified that she ate breakfast with Vargas and others and then left, recounting that

[t]here was no arguing between me and [Vargas]. He was the nicest guy on the planet. He was willing to let me go. He was willing to give me the van. He let me take the cell phone. There was no argument the next morning between me and [Vargas] whatsoever.

She does say that, while she was restrained and with Vargas alone, she was

saying whatever it was going to take to save my fucking life, you know. When somebody tells you they're going to do things like that, it gets to you — you know, you start panicking. You turn to their side. You let them believe that you're there for them.

¶ 73 Contrary to the People's contention, she doesn't ever mention pretending to be fine in front of her family in order to escape.

¶ 74 Additionally, even if the victim had testified that she pretended to be fine in front of her family, the record doesn't clearly establish that additional witness testimony regarding the events of that morning would have been cumulative here, as Vargas’ mother and Vargas’ employee aver they would have testified that they “saw nothing wrong with [the victim]” and that “there were no markings on [the victim] and [the victim] left happy.” While it may be true that some parts of the testimony by Vargas’ mother and his employee would have been consistent with the victim's trial testimony, the proffered testimony, if credible, would seem to corroborate Vargas’ theory of defense. Cf. Washington, ¶ 35; Green, 38 Colo. App. at 167, 553 P.2d at 840.

¶ 75 We acknowledge that there are many reasons that defense counsel may have elected not to call Vargas’ mother or Vargas’ employee, but, apart from their names being on the witness list, there is no information in the record regarding defense counsel's decision not to call them to testify. And given the nature of their alleged testimony, we can't conclude that the record clearly disputes either the deficient performance or prejudice prong of Strickland. Therefore, we remand this issue for an evidentiary hearing as to both prongs of Strickland.

4. Cumulative Error Claim

¶ 76 Finally, Vargas contends that the cumulative effect of trial counsel's deficient performance amounted to a denial of due process. Because we are remanding for further proceedings, including a hearing, on defense counsel's alleged failure to call four witnesses, and we are doing so without making any determinations as to ineffective assistance of counsel, we offer no opinion on cumulative error. Instead, in the event that the trial court finds any instances of ineffective assistance of counsel, it can consider whether relief is warranted under the cumulative error doctrine.

IV. Disposition

¶ 77 For the reasons set forth above, we affirm in part, reverse in part, and remand for an evidentiary hearing on whether it was ineffective assistance of trial counsel to not call J.A.V., A.V., Vargas’ mother, and Vargas’ employee as witnesses at trial. Depending on its resolution of these claims, the postconviction court should consider the cumulative impact of any ineffective assistance of counsel it does find. We otherwise affirm the postconviction court's order denying Vargas’ Crim. P. 35(c) motion.

20CA0290 Peo v Vargas 04-13-2023

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0290

El Paso County District Court No. 08CR4450 Honorable Gregory R. Werner, Judge

The People of the State of Colorado, Plaintiff-Appellee,

v.

Antonio Jose Vargas, Jr. Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE WELLING

Furman and Freyre, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced April 13, 2023

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

¶ 1 Defendant, Antonio Jose Vargas, Jr., appeals the postconviction court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm the postconviction court's ruling in part, reverse in part, and remand for further proceedings.

I. Background

¶ 2 In January 2010, following a jury trial, Vargas was found guilty of second degree kidnapping, two counts of sexual assault, two counts of unlawful sexual contact, and third degree assault. He was also adjudicated a habitual criminal and a sexually violent predator.

¶ 3 Vargas filed a direct appeal. In his appeal, he contended that the trial court erred by denying a motion for a mistrial based on improper witness testimony; by admitting improper expert testimony; by allowing a Sexual Assault Nurse Examiner to testify regarding hearsay statements; by concluding that there was sufficient evidence to sustain his convictions; by concluding that there was sufficient evidence to sustain the habitual criminal adjudication; and by designating him a sexually violent predator. A division of this court affirmed his convictions but remanded for specific findings regarding Vargas’ sexually violent predator designation. People v. Vargas, (Colo. App. No. 10CA0427, June 27, 2013) (not published pursuant to C.A.R. 35(f)).

¶ 4 In July 2015, Vargas filed a pro se Crim P. 35(c) motion advancing ten claims of ineffective assistance of trial counsel and requesting the appointment of postconviction counsel. The court appointed postconviction counsel, and postconviction counsel was afforded the opportunity to supplement Vargas’ Crim. P. 35(c) motion.

¶ 5 In July 2017, postconviction counsel filed a supplemental motion raising eight claims of ineffective assistance of trial counsel. The claims were that

• trial counsel failed to accurately and effectively advise Vargas regarding his right to testify;

• trial counsel failed to properly raise any challenges for cause;

• trial counsel failed to effectively cross-examine a prosecution witness;

• trial counsel failed to fully litigate a mandatory disclosure issue as to expert testimony;

• trial counsel abandoned an objection to expert testimony;

• trial counsel failed to object to a witness remaining in the courtroom during other witness’ testimony;

• trial counsel failed to properly address the trial court's handling of a juror question;

• trial counsel failed to object to police officer and expert testimony regarding patterns of domestic violence; and that

• trial counsel was ineffective in choosing a “consent” defense.

Additionally, Vargas raised an “actual innocence” claim, contending that there is affirmative evidence of his innocence.

¶ 6 The postconviction court denied most of the claims in Vargas’ Crim. P. 35(c) motion without a hearing. The court granted an evidentiary hearing on Vargas’ right-to-testify claim but ultimately denied that claim as well.

¶ 7 Vargas now appeals the denial of his postconviction motion. On appeal, Vargas contends that the postconviction court erred by denying his claim of actual innocence, that the postconviction court erred by not granting Vargas a new trial based on the evidence presented at the evidentiary hearing for his right-to-testify claim, and that he was entitled to an evidentiary hearing on four of the ineffective assistance of counsel claims that the postconviction court summarily denied.

¶ 8 We address Vargas’ contentions below.

II. Denial of Vargas’ “Actual Innocence” Claim

¶ 9 Vargas’ first contention is that the postconviction court erred by denying his “freestanding claim of actual innocence.” We aren't persuaded that the postconviction court erred.

A. Additional Facts

¶ 10 According to the People's evidence, Vargas grabbed his estranged wife, the victim, by the hair, shoved her into a van, handcuffed her, taped her mouth, and drove her to his property. Throughout the course of the evening, Vargas moved her to a truck, hogtied her, and sexually assaulted her. At trial, Vargas maintained his innocence and pursued a consent theory of defense — contending that he and the victim had consensual sexual intercourse two days prior to the alleged assault but that he wasn't with the victim when the incident allegedly occurred. He also asserted that the victim fabricated the story of the assault after learning that he had a new girlfriend and after he had sought and obtained a protective order against the victim.

¶ 11 Following a jury trial, Vargas was convicted of second degree kidnapping, sexual assault — digital penetration of the vagina, sexual assault — penile penetration of the vagina, unlawful sexual contact — penile penetration of the vagina, and third degree assault. He was also adjudicated a habitual criminal and designated a sexually violent predator.

¶ 12 Vargas was sentenced to ninety-six years in prison for the kidnapping charge and forty-eight years to life for the other charges, to run consecutively to the kidnapping charge.

¶ 13 In his pro se Crim. P. 35(c) motion, Vargas sought relief on the grounds of “actual innocence.” Accompanying his motion, Vargas submitted affidavits from himself, his two sons, and another individual stating that he wasn't with the victim the night of the assault and that he was, instead, at his home during the time of the alleged offenses.

¶ 14 On appeal, Vargas contends that the affidavits submitted with his Crim. P. 35(c) motion presented affirmative evidence of his actual innocence.

B. Analysis

¶ 15 The postconviction court addressed Vargas’ actual innocence claim under the newly discovered evidence framework of Crim. P. 35(c), ultimately concluding that “the information contained in the affidavit was clearly known to [Vargas] at the time of trial” and therefore wasn't new evidence. On appeal, Vargas contends that his actual innocence claim shouldn't be reviewed under the new evidence framework, but, instead, that we should recognize actual innocence as a freestanding claim and treat it as one.¹ A freestanding claim of actual innocence is a claim that isn't accompanied by an independent constitutional violation. See, e.g., Herrera v. Collins, 506 U.S. 390, 416 (1993) (“Our federal habeas cases have treated claims of ‘actual innocence,’ not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive.”).

¶ 16 Based on the briefing, both parties agree that the law isn't clear regarding whether Colorado recognizes a freestanding actual innocence claim.² But even assuming there is a pathway to assert a freestanding actual innocence claim under Colorado law, the evidence presented here is insufficient to warrant an evidentiary hearing on such a claim.

¶ 17 If a freestanding claim of actual innocence exists, it would have to overcome an “extraordinarily high threshold.” See John M. Leventhal, A Survey of Federal and State Courts’ Approaches to a Constitutional Right of Actual Innocence: Is There a Need for a State Constitutional Right in New York in the Aftermath of CPL § 440.10(1)(G-1), 76 Alb. L. Rev. 1453, 1464–65 nn.83–95 (2013) (collecting cases); see also Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (“Requiring affirmative proof of innocence is appropriate, because when a petitioner makes a freestanding claim of innocence, he is claiming that he is entitled to relief despite a constitutionally valid conviction.”).

¶ 18 Other states that recognize freestanding claims of actual innocence vary on the standards they apply, but all require the defendant to clear a high bar to assert such a claim.

¶ 19 In Illinois, for example, to pursue an actual innocence claim, a defendant must present new evidence that is “ ‘of such conclusive character’ as would ‘probably change the result on retrial.’ ” People v. Washington, 665 N.E.2d 1330, 1337 (Ill. 1996) (quoting People v. Silagy, 507 N.E.2d 830, 834 (Ill. 1987)). In Missouri, the state supreme the court held that the petitioner must “make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.” State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003). In Iowa, “[f]or an applicant to succeed on a freestanding actual-innocence claim, the applicant must show by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence.” Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018).

¶ 20 Other jurisdictions have codified freestanding claims of actual innocence.³ A Maryland statute uses a standard of “substantial or significant possibility that the result may have been different.” Md. Code Ann., Crim. Proc. § 8-301(a)(1) (West 2022). In the District of Columbia, a statute explicitly assigns different remedies upon meeting respective standards. D.C. Code Ann. § 22-4135 (West 2022). If the court determines “it is more likely than not that the movant is actually innocent of the crime,” the remedy is to grant a new trial. D.C. Code Ann. § 22-4135(g)(2). If the court determines “by clear and convincing evidence that the movant is actually innocent of the crime,” the remedy is to vacate the conviction. D.C. Code Ann. § 22-4135(g)(3).

¶ 21 If Colorado were to recognize a standalone actual innocence claim, we are convinced it would require a similarly exacting standard. See, e.g., Roper, 102 S.W.3d at 548 (requiring “clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment”); Schmidt, 909 N.W.2d at 797 (requiring that “no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence”). Whatever its contours, it would certainly be higher than the “reasonable probability” of a different outcome, as required by the prejudice prong of Strickland v. Washington, 466 U.S. 668, 690 (1984). See People v. Washington, 2014 COA 41, ¶ 28 (“[T]o prove prejudice under Strickland, a 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.”); see also Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

¶ 22 And more importantly for our analysis, whatever the precise requirements for stating a standalone actual innocence claim might be, Vargas’ motion and supporting documents didn't meet them. Vargas’ pro se motion contained six affidavits — the four that are relevant here are one from himself; one from a family friend, A.V.; and one from each of his two sons, M.L.V. and J.A.V. The information contained in these affidavits (including his own) purports to show that Vargas was home the night of the alleged kidnapping and assault. His affidavit states that he wasn't with the victim; his two sons’ affidavits state that he was home with them; and A.V.’s affidavit states that Vargas was at the home that night.

¶ 23 In his briefing, Vargas contends that these signed affidavits are compelling evidence of his actual innocence. We disagree. Some of the evidence set forth in the motion was presented at trial — specifically, one son, M.L.V., testified that he was with Vargas the night of the incident. The other affidavits, while they are from witnesses who didn't testify at trial, still don't lead us to conclude that “no reasonable fact finder could convict [Vargas] of the crimes for which the sentencing court found [him] guilty in light of all the evidence, including the newly discovered evidence.” See Schmidt, 909 N.W.2d at 797. The evidence presented here by Vargas is simply additional evidence of a theory presented at trial through his son's testimony, and it doesn't “make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.” Roper, 102 S.W.3d at 548.

¶ 24 Simply put, even if Colorado recognized a freestanding actual innocence claim — independent of a newly discovered evidence or ineffective assistance counsel claim — Vargas’ motion and affidavits failed to state one. Therefore, we affirm the postconviction court's order to the extent that the postconviction court rejected Vargas’ claim of actual innocence.⁴

III. Ineffective Assistance of Counsel

¶ 25 Vargas next contends that the postconviction court erred by denying his ineffective assistance of trial counsel claims. Specifically, Vargas contends that the trial court erred by not granting Vargas a new trial based on the evidence presented at the evidentiary hearing on his right-to-testify claim. Vargas also contends that the postconviction court erred by summarily denying his claims that trial counsel was ineffective by failing to conduct a meaningful investigation into, and failing to challenge at trial, the serological evidence; failing to deliver a consistent theory of defense; and failing to call witnesses who could have corroborated his theory of defense. Finally, Vargas contends that trial counsel's errors cumulatively deprived him of his right to effective assistance of counsel.

¶ 26 We first address the claim denied following an evidentiary hearing, then we turn to the summarily denied claims, and, finally, we address cumulative error.

A. Claim Denied After Evidentiary Hearing

¶ 27 To prevail on a claim of ineffective assistance of counsel under Crim. P. 35(c), a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced him. Strickland, 466 U.S. at 687-88.

¶ 28 Vargas contends that the postconviction court erred by denying his ineffective assistance of counsel claim regarding his right to testify following an evidentiary hearing. When a postconviction court conducts a hearing on an ineffective assistance of counsel claim, the defendant bears the burden of proving his claim by a preponderance of the evidence. People v. Smith, 2017 COA 12, ¶ 12.

¶ 29 Reasonableness is assessed based on a consideration of “all the circumstances.” Strickland, 466 U.S. at 688. Prevailing norms of practice can serve as guides to determine reasonableness, but no more than guides, because of the variety of circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant. Ardolino, 69 P.3d at 76. Thus, defense counsel must be given wide latitude in making tactical decisions. Strickland, 466 U.S. at 689.

¶ 30 A postconviction court's ruling on a Rule 35(c) motion following a hearing presents a mixed question of fact and law. Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). We defer to the court's findings of fact if they have record support, but we review any legal conclusions de novo. Id.

1. Additional Facts

¶ 31 In his supplemental Crim. P. 35(c) motion, Vargas contended that he “wanted to exercise his right under the federal and Colorado constitutions to testify in his own defense, and only did not because he wanted to preserve his ability to file an appeal in his case and was told by defense counsel that he would not be able to.” The postconviction court held an evidentiary hearing on this claim.

¶ 32 At the postconviction hearing, trial counsel and Vargas both testified. Vargas testified that he would have testified at the trial if not for trial counsel's advice that if he testified he wouldn't have been able to appeal his conviction. Trial counsel testified that she would never tell a client they could not seek an appeal if they testified at trial because that is an incorrect statement. After hearing the testimony, the postconviction court made the following factual findings and ruling:

The Court simply does not find the defendant to be credible regarding his claims in this case. The evidence is that the defendant had an experienced defense attorney. [Defense counsel] said she always tells the defendant that it is the defendant's choice to testify. Contrary to what ․ Vargas said, [defense counsel] said that the defendant never told her that he wanted to testify. The Court finds [defense counsel] to be credible. When asked about her experience defending people and whether she specifically told the defendant that he couldn't appeal if he testified, she said “I didn't say it to anybody.” The Court can't even imagine an attorney saying what the defendant claims because it isn't a law and never has been. It's also not like this is a confusing area of the law where there is some gray area or the law is unclear. [Defense counsel] clearly knew what the law was, and she was right. You can appeal even if you testify. She said she would never tell anyone what the defendant claims that she told him, and the Court believes her ․

The Court finds that the prosecution is correct in this case. This involves a determination by the Court regarding who is credible and what facts should be believed. The Court finds Ms. Elkins is credible and the facts claimed by the defendant should not be believed. That's what the Court finds. Based on that, the Court will deny the defendant's motion for a Rule 35(c).

2. Discussion

Under the Strickland standard, a defendant will establish a violation of his right to testify when he proves, by a preponderance of the evidence, the following elements: that defense counsel's action or inaction in counseling the defendant on his right to testify fell below the professional level of competence demanded of attorneys practicing in criminal law at the time of the defendant's trial and thereby deprived the defendant of his ability to make an informed and voluntary decision on whether to exercise his right to testify; and that there is a reasonable probability that, but for defense counsel's deficient performance, the result of the trial would have been different.

People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).

¶ 33 The trial court made a determination that trial counsel's testimony was credible and Vargas’ testimony wasn't. The trial court found that trial counsel never advised Vargas that he would not be able to appeal his case if he testified at trial, and we can't disregard the trial court's credibility determination. See People v. Hardin, 2016 COA 175, ¶ 43 (the court of appeals may not disregard a postconviction court's credibility determination that trial counsel was more credible than the defendant).

¶ 34 Accordingly, we affirm the postconviction court's determination that trial counsel wasn't ineffective in her advisement of Vargas regarding his right to testify.

B. Summarily Denied Ineffective Assistance of Counsel Claims

¶ 35 Next, we turn to Vargas’ remaining ineffective assistance of counsel claims, which the postconviction court denied without a hearing.

1. Applicable Law

¶ 36 We review de novo a postconviction court's summary denial of a Crim. P. 3(c) motion. People v. Joslin, 2018 COA 24, ¶ 5. A court may deny the motion without a hearing if “the motion, the files, and the record clearly establish that the defendant is not entitled to relief.” People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007). Courts may resolve an ineffective assistance claim on the basis of “an insufficient showing [as to] one” of the prongs alone. Strickland, 466 U.S. at 697. And the postconviction court's ruling may be affirmed on any ground supported by the record, regardless of whether that ground was relied upon by the court. People v. Scott, 116 P.3d 1231, 1233 (Colo. App. 2004). If it is clearly established by the record that the allegations presented are without merit, the motion may be denied without a hearing. Ardolino, 69 P.3d at 77.

¶ 37 Where the “motion, files, and record in the case [are] insufficient to establish either that the acts and omissions of counsel identified by the defendant were reasonable strategic choices or that they, in any event, did not prejudice [the] case, we remand for an evidentiary hearing on the allegations.” Id. at 75.

2. Serological Evidence Claim

¶ 38 Vargas contends that trial counsel provided ineffective assistance by failing to conduct a reasonable investigation into the serological evidence against him and by failing to consult with experts in serology, DNA testing, or forensic pathology. Relatedly, Vargas contends that trial counsel was ineffective by delivering inconsistent opening and closing statements. Specifically, Vargas contends that the serological evidence presented at trial, and defense counsel's handling of that evidence, wasn't supportive of the theory of defense.

a. Additional Facts

¶ 39 At trial, Vargas’ theory of defense was that the victim and Vargas had consensual intercourse two days before the alleged incident. Defense counsel opened and closed Vargas’ case with this theory.

¶ 40 The prosecution called Stefanie Trahey from the Colorado Bureau of Investigation to testify. Trahey, a laboratory agent, testified as an expert in the areas of serology and forensic DNA analysis. Trahey testified about the serological and DNA testing she conducted on the victim's underwear, panty liner, and sweatshirt. Additionally, Trahey testified that she tested

sixteen items contained in [the Sexual Assault Nurse Examination kit], all individually sealed in their own envelopes. I did testing on the items that were within the kit. There were cervical swabs, vaginal swabs, a vaginal slide, a cervical slide, anal swabs and an anal slide, oral swabs and oral slides, swabs that were collected from [the victim's] external genitalia area. There were swabs that were labeled as foreign stains on the body, possible saliva, right neck, which I would assume would be lateral neck area. There were finger nail clippings, a head hair control, pubic hair control, a pubic hair combing and a drape as well as buccal swabs collected from [the victim] within this packet.

¶ 41 When asked about the test results, Trahey testified that

the DNA profile developed from the sperm fraction of the cervical swabs, Item1D-1, matched the DNA profile developed for Mr. Vargas, which was our Item2A-1. To a reasonable degree of scientific certainty, Mr. Vargas — I'm sorry, and in the absence of an identical sibling, Mr. Vargas is the source of the DNA profile developed from the sperm fraction of the cervical swab, Item1D-1.

¶ 42 She also testified that

the DNA profile developed from the [sweatshirt] cuff, the stain on the [sweatshirt] cuff, 5-2, matched the DNA profile that was developed for Mr. Vargas, our Item 2A-1. Again, to a reasonable degree of scientific certainty, in the absence of an identical sibling, Mr. Vargas is the source of the DNA profile developed from Item 5-2.

Defense counsel asked Trahey four questions on cross examination: three had to do with scientifically determining the age of blood, the fourth was a question about how long spermatozoa can remain in a vagina, to which Trahey responded, “[A]fter seventy-two hours it looks fairly bleak to find spermatozoa within that area.”

¶ 43 The prosecution also called Yvonne Woods, another laboratory agent from the Colorado Bureau of Investigation, to testify. Woods testified that she examined eight hairs that were collected from the scene of the assault. On direct examination, Woods testified that

three of them exhibited characteristics, microscopic characteristics of having been forcefully removed; and the remaining five of those eight hairs were hair fragments, meaning that there was no root on those hairs.

¶ 44 Defense counsel asked Woods about how hair is transferred from place to place, and how hair can be pulled out in different ways — such as combing or brushing hair.

b. Application

¶ 45 Vargas contends that defense counsel's failure to consult with experts in serology, DNA testing, or forensic pathology, and defense counsel's failure to meaningfully confront the serological evidence at trial, amounted to ineffective assistance of counsel and fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 690-91 (counsel's strategic and tactical decisions can constitute deficient performance if the defendant can overcome the presumption that counsel's conduct might be considered sound trial strategy or demonstrate that a strategic decision made after less than complete investigation wasn't reasonable); see also People v. Wilson, 397 P.3d 1090, 1097 (Colo. App. 2011) (“To prevail on a claim of ineffective assistance of counsel, a defendant must show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance.”).

¶ 46 Additionally, Vargas contends that presenting the consent theory of defense in both opening and closing without support for the theory in the form of expert testimony or through cross examination of the prosecution's experts was ineffective assistance of counsel and prejudicial given the amount and nature of the inculpatory DNA and serological evidence. We disagree with Vargas’ contentions regarding defense counsel's handling of the serological evidence and defense counsel's and defense counsel's presentation of the consent theory.

¶ 47 In support of his claim, Vargas attached an affidavit from Dr. Phillip Danielson, Ph.D., a professor at the University of Denver. In his affidavit, Dr. Danielson states that the serological evidence presented at trial is consistent with a sperm deposit sometime in the range of twelve to seventy-two hours prior to collection. Dr. Danielson also averred that additional testing could have been conducted in order to add additional data to the timeline of the deposit.

¶ 48 While Dr. Danielson's affidavit does provide information regarding various types of additional testing that could have been conducted, we conclude that the information in the affidavit is the same or substantially similar to the evidence presented by Trahey at trial during direct and cross-examination. Specifically, defense counsel challenged Trahey's testimony regarding the age of the sperm deposit and established that the sample could have been deposited up to seventy-two hours prior to collection, which is entirely consistent with Dr. Danielson's affidavit.

¶ 49 The questioning on cross examination was also consistent with defense counsel's theory that the deposit could have occurred prior to the alleged incident. The consent theory was that Vargas and the victim had consensual sexual intercourse two days before the alleged incident, but that they were not together on the night of the alleged incident. Trahey testified that the sperm deposit could have been seventy-two hours old, meaning it could have occurred when Vargas contends it occurred. Defense counsel confirmed that the hair belonging to the victim that was found at the scene could have come out from combing or brushing and could have ended up at the scene without the victim ever actually being there. See People v. Newmiller, 2014 COA 84, ¶ 60 (“[T]rial counsel need not introduce expert testimony on [their] client's behalf if [they are] able effectively to cross-examine prosecution witnesses and elicit helpful testimony.” (quoting Reinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004))).

¶ 50 Moreover, we are not convinced that Vargas’ bald assertion that, had an expert been consulted or retained, defense counsel would have been able to “dispute the prosecution's time frame of the alleged incident and further the defense theory of consensual intercourse between Vargas and [the victim]” is sufficient to establish the requisite prejudice. See People v. Villanueva, 2016 COA 70, ¶ 68 (a conclusory allegation of prejudice is insufficient under Strickland); see also People v. Aguilar, 2012 COA 181, ¶ 12 (concluding that, “after examining the record[,] ․ [the] defendant failed to allege[ ] facts establishing that counsel's [decision not to retain an expert to rebut the prosecution's expert] was outside the wide range of professionally competent assistance” because “defense counsel's decision whether or not to call his own ․ expert was a matter of trial strategy” and the “[d]efendant's assertion that an expert could have contradicted the prosecution's evidence is facially speculative”).

¶ 51 Defense counsel has final authority to make decisions that are regarded as strategic or tactical in nature. Arko v. People, 183 P.3d 555, 558 (Colo. 2008). Such decisions include whether to consult or retain an expert, see People v. Smith, 2022 COA 56, ¶ 30, and whether or how to conduct cross examination, Arko, 183 P.3d at 558.

¶ 52 Vargas contends that had defense counsel consulted with experts, she would have been better able to challenge the serological evidence. But a defendant “must do more than simply allege that other evidence could have aided [their] defense; [they] must identify the evidence and demonstrate that it would have advanced [their] defense.” See Villanueva, ¶ 67 (emphasis added); People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (rejecting the defendant's claim that counsel was ineffective for conducting an inadequate investigation because, among other things, he did not explain how the results of an additional investigation would have affected the outcome of the case); see also People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“[I]f the claims are bare and conclusory in nature, and lack supporting factual allegations, the [Crim. P. 35(c)] motion may ․ be denied without a hearing.”). Vargas has failed to show that had an expert been consulted or had defense counsel engaged in a different tactic during cross examination, his consent theory of defense would have been advanced.

¶ 53 For the above reasons, we conclude that the postconviction court didn't err by summarily denying Vargas’ ineffective assistance of counsel claims pertaining to trial counsel's decisions regarding consulting experts in serology, DNA testing, or forensics; trial counsel's tactics in confronting the serological evidence at trial; and the decision to, and manner of, advancing the consent theory of defense.

3. Failure to Call Witnesses Claim

¶ 54 Vargas next contends that trial counsel was ineffective for failing to call four witnesses who — he contends — were available at the time of trial and would have testified in support of his theory of defense.

a. Preservation

¶ 55 Before we address the merits of this contention, we address, and reject, the People's contention that Vargas waived this claim. In his supplemental Crim. P. 35(c), Vargas stated,

In preparing for trial, defense counsel conducted extensive investigation with eye and character witnesses prior to trial, but did not consult with any experts beyond a phone call about the hair evidence.

¶ 56 The People contend that because Vargas

conceded in his supplemental Crim. P. 35(c) motion that trial counsel conducted a thorough investigation prior to trial with the various eyewitnesses and character witnesses, his ineffective assistance of counsel claims related to the investigation should not be considered on appeal.

¶ 57 We reject this argument. We must indulge every presumption against waiver, and we can't glean from that single sentence that Vargas “intentionally, freely, deliberately” intended to waive this claim. See Smith, 2022 COA 56, ¶¶ 14, 16. Therefore, we reject the People's waiver argument, and turn to our review of Vargas’ contention.

b. Merits

¶ 58 In his Crim. P. 35(c) motion, and on appeal, Vargas contends that trial counsel should have called his son, J.A.V.; his son, M.L.V.; A.V., who was staying with Vargas at the time; Vargas’ mother; and one of Vargas’ employees to testify.

¶ 59 Vargas’ two sons, J.A.V. and M.L.V., as well as A.V., all state in their affidavits that they were with Vargas on the night of the alleged incident. Vargas’ mother and Vargas’ employee both state in their affidavits that they were with Vargas and the victim the morning after the alleged incident.

¶ 60 Vargas contends that defense counsel was ineffective for failing to call these witnesses to testify because they would have supported his theory of defense — that he wasn't with the victim on the night of the alleged incident and that the victim was uninjured and acting normally the morning after the alleged incident. We will address each potential witness separately.

i. M.L.V.

¶ 61 The record reflects, and the postconviction court noted in its order, that Vargas’ son M.L.V. did testify at trial. Indeed, M.L.V. testified (consistent with his affidavit) that Vargas was at home all night on the night of the incident. Because M.L.V. did testify and his testimony was in line with Vargas’ theory of defense, we aren't clear on what additional information M.L.V. could have provided or where the alleged ineffective assistance of counsel lies. Therefore, we conclude that the postconviction court properly rejected Vargas’ claim that counsel was ineffective for failing to call M.L.V. to testify in support of his defense. See People v. Rivas, 77 P.3d 882, 893–94 (Colo. App. 2003) (finding no prejudice from counsel's failure to call witnesses who were willing to testify for defendant because their testimonies were impeachable on multiple grounds and would have been duplicative of similar testimony already admitted at trial).

ii. J.A.V.

¶ 62 Vargas contends that counsel was ineffective for failing to call his other son, J.A.V., to testify. Vargas contends that J.A.V. was available and willing to testify and that his testimony would have “changed the outcome of the trial” and that J.A.V. could have “corroborated Vargas’ theory of defense.”

¶ 63 The postconviction court rejected the claim without a hearing, finding that the record “reflects that [Vargas’] other son [J.A.V.] was not available to testify as he had run away and no one knew where he was.”

¶ 64 While him being “on the run” may be true, his unavailability to testify at trial is not so clear from the record.

¶ 65 In their answer brief, the People contend that J.A.V. was “on the run” from a group home, and therefore unavailable at the time of trial. To support their contention, the People point to a portion of the trial transcript in which the victim was asked by the prosecutor:

[Prosecutor]: How many children do you have?

[Victim]: We have two boys.

[Prosecutor]: What are their names?

[Victim]: [M.L.V.] and [J.A.V.].

[Prosecutor]: Are they with you now?

[Victim]: No, one is actually on the run; and the other one is on the run from Hudson group home.

¶ 66 There is no other support in the record explaining J.A.V.’s absence nor is there any evidence of defense counsel's efforts to locate him. More importantly, as evidenced by the facts and circumstances of this case, being described by the victim as “on the run” didn't equate to a witness’ unavailability to testify. Indeed, in the same portion of the record that the People rely on for J.A.V.’s unavailability, the victim also says that M.L.V. was “on the run.” But unlike J.A.V., M.L.V. did testify, belying the People's contention that being described as “on the run” is tantamount to being unavailable to testify. Thus, on this record, we can't conclude that being “on the run” is the same as being unavailable, and we remand this issue for an evidentiary hearing as to both prongs of Strickland, as J.A.V.’s proffered testimony, if found credible, would seem to corroborate Vargas’ hotly disputed alibi. Cf. Washington, ¶ 35 (the defendant failed to prove that counsel was ineffective for not calling a witness to testify because the proffered testimony would have been cumulative of other testimony and not corroborative of any material fact); People v. Green, 38 Colo. App. 165, 167, 553 P.2d 839, 840 (1976) (“To deny [the] defendant the right to present [a]ny independent corroborative testimony on a material issue must be considered prejudicial error.”).

iii. A.V.

¶ 67 A.V. was endorsed as a witness by the defense. In his affidavit appended to Vargas’ Crim. P. 35(c) motion, A.V. avers that he was with Vargas (and his children) on the night of the alleged incident and that he was available and willing to testify in accord with his affidavit. Vargas contends that trial counsel rendered ineffective assistance by failing to call A.V. as a witness at trial. In its written order, the postconviction court didn't address this claim.

¶ 68 In their answer brief, however, the People contend that “[w]hile trial counsel endorsed [A.V.] prior to trial, she was unable to provide any location for his whereabouts. The prosecution was also unable to locate [A.V.].” In support of their contention, the People point to defense counsel's Endorsement of Additional Witnesses, which was filed prior to trial.

¶ 69 True, the only information regarding A.V. states “address not yet known.” But there is no other information in the record explaining A.V.’s absence from trial or trial counsel's decision not to call him to testify. Because the record regarding A.V. doesn't establish why defense counsel didn't call him to testify (creating an issue of fact regarding deficient performance), we remand this issue for an evidentiary hearing on both prongs of Strickland, as A.V.’s proffered testimony (like that of J.A.V.’s), if found credible, would seem to provide independent corroboration of Vargas’ hotly contested alibi. Cf. Washington, ¶ 35; Green, 38 Colo. App. at 167, 553 P.2d at 840.

iv. Vargas’ mother and Vargas’ employee

¶ 70 Both Vargas’ mother and Vargas’ employee aver they would have testified that, the morning after the alleged crime, they ate breakfast with Vargas and the victim and that the victim acted normally and didn't appear to be injured. Again, the postconviction court didn't address this claim.

¶ 71 In their briefing, the People contend that the information contained in the affidavits can't meet the second prong of Strickland because it's “consistent with [the victim's] trial testimony that she pretended to be fine while eating with her family the next day in order to appease defendant until she could escape,” making it cumulative of evidence that was presented at trial. In our review of the transcript, however, there is no instance where the victim says she “pretended” to be fine while eating with her family.

¶ 72 With respect to the events of the following morning, the victim testified that she ate breakfast with Vargas and others and then left, recounting that

[t]here was no arguing between me and [Vargas]. He was the nicest guy on the planet. He was willing to let me go. He was willing to give me the van. He let me take the cell phone. There was no argument the next morning between me and [Vargas] whatsoever.

She does say that, while she was restrained and with Vargas alone, she was

saying whatever it was going to take to save my fucking life, you know. When somebody tells you they're going to do things like that, it gets to you — you know, you start panicking. You turn to their side. You let them believe that you're there for them.

¶ 73 Contrary to the People's contention, she doesn't ever mention pretending to be fine in front of her family in order to escape.

¶ 74 Additionally, even if the victim had testified that she pretended to be fine in front of her family, the record doesn't clearly establish that additional witness testimony regarding the events of that morning would have been cumulative here, as Vargas’ mother and Vargas’ employee aver they would have testified that they “saw nothing wrong with [the victim]” and that “there were no markings on [the victim] and [the victim] left happy.” While it may be true that some parts of the testimony by Vargas’ mother and his employee would have been consistent with the victim's trial testimony, the proffered testimony, if credible, would seem to corroborate Vargas’ theory of defense. Cf. Washington, ¶ 35; Green, 38 Colo. App. at 167, 553 P.2d at 840.

¶ 75 We acknowledge that there are many reasons that defense counsel may have elected not to call Vargas’ mother or Vargas’ employee, but, apart from their names being on the witness list, there is no information in the record regarding defense counsel's decision not to call them to testify. And given the nature of their alleged testimony, we can't conclude that the record clearly disputes either the deficient performance or prejudice prong of Strickland. Therefore, we remand this issue for an evidentiary hearing as to both prongs of Strickland.

4. Cumulative Error Claim

¶ 76 Finally, Vargas contends that the cumulative effect of trial counsel's deficient performance amounted to a denial of due process. Because we are remanding for further proceedings, including a hearing, on defense counsel's alleged failure to call four witnesses, and we are doing so without making any determinations as to ineffective assistance of counsel, we offer no opinion on cumulative error. Instead, in the event that the trial court finds any instances of ineffective assistance of counsel, it can consider whether relief is warranted under the cumulative error doctrine.

IV. Disposition

¶ 77 For the reasons set forth above, we affirm in part, reverse in part, and remand for an evidentiary hearing on whether it was ineffective assistance of trial counsel to not call J.A.V., A.V., Vargas’ mother, and Vargas’ employee as witnesses at trial. Depending on its resolution of these claims, the postconviction court should consider the cumulative impact of any ineffective assistance of counsel it does find. We otherwise affirm the postconviction court's order denying Vargas’ Crim. P. 35(c) motion.

JUDGE FURMAN and JUDGE FREYRE concur.

FOOTNOTES

1.   As noted, the postconviction court analyzed this claim under the newly discovered evidence framework and concluded that it failed because the evidence was available at the time of trial. Vargas doesn't contend that the postconviction court erred in its conclusion that this claim fails as a newly discovered evidence claim. Instead, Vargas contends that whether the evidence is new isn't germane to his actual innocence claim, and that a different analysis is required. Because Vargas doesn't contend on appeal that the postconviction court erred by concluding that the claim fails under the newly discovered evidence framework, we don't review that finding.

2.   The Attorney General states in his answer brief that Colorado “does not recognize a freestanding claim of actual innocence,” but then goes on to address it using the new evidence framework without further addressing why an actual innocence claim isn't viable.

3.   Colorado has codified one form of a freestanding claim of actual innocence — namely, exoneration by DNA evidence. See § 18-1-413, C.R.S. 2022. This statute provides that “a court shall not order DNA testing unless the petitioning incarcerated person demonstrates, among other things, that “[f]avorable results of the DNA testing will demonstrate the petitioner's actual innocence.” § 18-1-413(1)(a), C.R.S. 2022 (emphasis added).

4.   The postconviction court also rejected Vargas’ actual innocence claim on the grounds that Vargas “challenged the sufficiency of the evidence on appeal and the Court of Appeals determined that the evidence was sufficient.” We disagree with this reasoning; a sufficiency of the evidence challenge and a claim of actual innocence present two separate issues — it is possible for there to be sufficient evidence of guilt and still present affirmative evidence of actual innocence. In other words, the rejection of the sufficiency of the evidence claim has no bearing on the viability of an actual innocence claim.

1.   As noted, the postconviction court analyzed this claim under the newly discovered evidence framework and concluded that it failed because the evidence was available at the time of trial. Vargas doesn't contend that the postconviction court erred in its conclusion that this claim fails as a newly discovered evidence claim. Instead, Vargas contends that whether the evidence is new isn't germane to his actual innocence claim, and that a different analysis is required. Because Vargas doesn't contend on appeal that the postconviction court erred by concluding that the claim fails under the newly discovered evidence framework, we don't review that finding.

2.   The Attorney General states in his answer brief that Colorado “does not recognize a freestanding claim of actual innocence,” but then goes on to address it using the new evidence framework without further addressing why an actual innocence claim isn't viable.

3.   Colorado has codified one form of a freestanding claim of actual innocence — namely, exoneration by DNA evidence. See § 18-1-413, C.R.S. 2022. This statute provides that “a court shall not order DNA testing unless the petitioning incarcerated person demonstrates, among other things, that “[f]avorable results of the DNA testing will demonstrate the petitioner's actual innocence.” § 18-1-413(1)(a), C.R.S. 2022 (emphasis added).

4.   The postconviction court also rejected Vargas’ actual innocence claim on the grounds that Vargas “challenged the sufficiency of the evidence on appeal and the Court of Appeals determined that the evidence was sufficient.” We disagree with this reasoning; a sufficiency of the evidence challenge and a claim of actual innocence present two separate issues — it is possible for there to be sufficient evidence of guilt and still present affirmative evidence of actual innocence. In other words, the rejection of the sufficiency of the evidence claim has no bearing on the viability of an actual innocence claim.

Opinion by JUDGE WELLING

Furman and Freyre, JJ., concur JUDGE FURMAN and JUDGE FREYRE concur.