People v. Lopez.
2025 COA 73. No. 23CA0430. Assault in the First Degree—Plea Agreement—Eighth Amendment—Proportionality Review—Per Se Grave or Serious Offenses—Crim. P. 35(c)—Ineffective Assistance of Counsel.
August 28, 2025
Lopez faced multiple charges after shooting the victim in the knee. Per a plea agreement, he pleaded guilty to first degree assault in exchange for dismissal of the other counts. Because first degree assault is an extraordinary risk crime and a per se crime of violence, Lopez acknowledged that he could be sentenced to 10 to 30 years in prison. The plea agreement stated that the prosecution made no sentencing concessions. The district court sentenced Lopez to 21 years in prison, to run consecutively to the 12-year concurrent prison sentences he was serving in three other cases. Lopez did not appeal, but he moved for sentence reconsideration under Crim. P. 35(b), which the district court denied. Lopez later filed a pro se Crim. P. 35(c) motion requesting a proportionality review of his sentence and asserting multiple claims of ineffective assistance of counsel. The district court denied the motion, concluding that Lopez’s request for a proportionality review was not properly brought under Crim. P. 35(c) and the ineffective assistance of counsel claims failed to allege facts to support a claim and were conclusory.
On appeal, Lopez argued that the district court erred in denying his request for a proportionality review of his sentence. A Crim. P. 35(c) motion may be denied without a hearing when the motion and record show that the defendant is not entitled to relief. Here, construing Lopez’s claim liberally, his request challenged the constitutionality of his sentence under the Eighth Amendment, which is properly cognizable under Crim. P. 35(c). Therefore, the district court should have conducted an abbreviated proportionality review of Lopez’s sentence. The court of appeals determined that it could conduct the proportionality review instead. The court first held that first degree assault (causing serious bodily injury by means of a deadly weapon) remains a per se grave or serious offense under Wells-Yates v. People, 2019 CO 90M. It then concluded that given the gravity of Lopez’s offense, his sentence, which is in the middle of the statutory range, does not raise an inference of gross disproportionality.
Lopez also argued that the district erred by denying his claims that his counsel provided ineffective assistance by (1) failing to interview witnesses, (2) failing to exercise due diligence in preparing for trial, (3) failing to visit him in custody before trial, (4) failing to offer mitigating information for plea negotiations, and (5) pressuring him to plead guilty. Lopez further alleged prejudice from the cumulative effect of these alleged deficiencies. However, Lopez’s claims were bare and conclusory and lacked factual support. Further, Lopez unequivocally affirmed that he was entering his guilty plea knowingly and voluntarily. And even assuming that some allegations were sufficient, the assumed errors were not so numerous or prejudicial as to indicate that, but for those errors, Lopez would not have pleaded guilty.
The order was affirmed.