ineffective assistance of counsel claim in Colorado

2026As the United States Supreme Court has long recognized, “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). ¶ 14 “In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland, 466 U.S. at 687 ).

2026As the United States Supreme Court has long recognized, “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). ¶ 14 “In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland, 466 U.S. at 687 ).

2026As the United States Supreme Court has long recognized, “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). ¶ 14 “In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland, 466 U.S. at 687 ).

2026“In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054 , 1062 (Colo. 2007).

2026See A.R. v. D.R., 2020 CO 10 , ¶ 47. ¶ 47 In evaluating a claim of ineffective assistance of counsel in a termination proceeding, we apply the same test we use when evaluating an ineffective assistance of counsel claim in a criminal case.

2025See A.R. v. D.R., 2020 CO 10 , ¶ 47; see also People in Interest of C.H., 166 P.3d 288 , 290 (Colo. App. 2007). ¶ 17 In evaluating a claim of ineffective assistance of counsel in a termination proceeding, we apply the same test that we would when evaluating an ineffective assistance of counsel claim in a criminal case.

2026See People v. Kelling, 151 P.3d 650, 655 (Colo. App. 2006) (“[B]ecause of the need for a developed factual record, an ineffective assistance of counsel claim should ordinarily be raised in a postconviction proceeding, not on direct appeal.”). 8 1.

2025See Kelling, 151 P.3d at 655 (“[B]ecause of the need for a developed factual record, an ineffective assistance of counsel claim should ordinarily be raised in a postconviction proceeding, not on direct appeal.”).

2025See 12 A.R. v. D.R., 2020 CO 10 , ¶ 47; see also People in Interest of C.H., 166 P.3d 288 , 290 (Colo. App. 2007). ¶ 23 In evaluating a claim of ineffective assistance of counsel in termination proceedings, we apply the same test that we would when evaluating an ineffective assistance of counsel claim in a criminal case.

2025See A.R. v. D.R., 2020 CO 10 , ¶ 47; see also People in Interest of C.H., 166 P.3d 288 , 290 (Colo. App. 2007). ¶ 17 In evaluating a claim of ineffective assistance of counsel in a termination proceeding, we apply the same test that we would when evaluating an ineffective assistance of counsel claim in a criminal case.

2025People v. Hardin, 2016 COA 175, ¶ 39 . 3 ¶8 “A criminal defendant is constitutionally entitled to effective assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). “[T]o prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2025Governing Law and Standard of Review ¶ 30 “A criminal defendant is constitutionally entitled to effective assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). “[T]o prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2026People v. Aguilar, 2012 COA 181, ¶ 9 .

2024People v. Aguilar, 2012 COA 181, ¶ 9 . ¶ 16 Strickland’s familiar standard, however, does not always govern an ineffective assistance of counsel claim.

2025Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 144 (2012). ¶ 20 “[T]o prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2025Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 144 (2012). “[A] defendant may challenge [a] guilty plea on the grounds of ineffective assistance of counsel when that challenge goes to the issue of whether the plea was knowingly, voluntarily, and intelligently entered.” People v. Stovall, 2012 COA 7M , ¶ 13, 284 P.3d 151, 154 . ¶ 17 To prevail on an ineffective assistance of counsel claim, “a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2026People v. Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

2025People v. 4 Chalchi-Sevilla, 2019 COA 75, ¶ 6 (citing Strickland, 466 U.S. at 687 ). ¶ 12 To establish deficient performance, a defendant must prove that counsel’s performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688 .

2012The court of appeals followed People v. Villarreal , 231 P.3d 29, 34 ( Colo.App. 2009 ) , which determined that the prejudice component of a plain error analysis is essentially identical to the prejudice component of an ineffective assistance of counsel analysis under Strickland .

2012The court of appeals followed People v. Villarreal, 231 P.3d 29, 34 (Colo.App.2009), which determined that the prejudice component of a plain error analysis is essentially identical to the prejudice component of an ineffective assistance of counsel analysis under Strickland.

2025Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 144 (2012). ¶ 20 “[T]o prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2025Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 144 (2012). “[A] defendant may challenge [a] guilty plea on the grounds of ineffective assistance of counsel when that challenge goes to the issue of whether the plea was knowingly, voluntarily, and intelligently entered.” People v. Stovall, 2012 COA 7M , ¶ 13, 284 P.3d 151, 154 . ¶ 17 To prevail on an ineffective assistance of counsel claim, “a defendant must prove that 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).

2025See People In Interest of T.M.S., 2019 COA 136, ¶ 63 (rejecting prejudice argument where parent failed to explain how testimony by witnesses that counsel should have called would have refuted the department’s evidence). ¶ 14 Relying on United States v. Cronic, 466 U.S. 648, 659 (1984), and People v. Robles, 74 P.3d 437, 439 (Colo. App. 2003), father argues that the familiar Strickland prejudice test doesn’t apply when an ineffective assistance of counsel claim arises from the total denial of the assistance of counsel.

2015For example, no additional showing of prejudice is required if counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing" because counsel is either "totally absent, or prevented from assisting the accused during a critical stage of the proceeding." United States v. Cronic, 466 U.S. 648 , 659 & n. 25, 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984) ; see People v. Robles, 74 P.3d 437 , 439 (Colo. App. 2003) ("[T]he Strickland prejudice test does not apply at all when an ineffective assistance of counsel claim arises because of the actual or constructive total denial of

2024People v. Karpierz, 165 P.3d 753, 759 (Colo. App. 2006). ¶ 15 The constitutional right to effective assistance of counsel includes the right to conflict-free counsel.

2024People v. Karpierz, 165 P.3d 753, 759 (Colo. App. 2006). ¶ 15 The constitutional right to effective assistance of counsel includes the right to conflict-free counsel.

2026A court may resolve an ineffective assistance of counsel claim “solely on the basis that the defendant has failed in either regard.” People v. Romero, 2015 COA 7 , ¶ 25 (citing People v. Garcia, 815 P.2d 937, 941 (Colo. 1991)). 6 2.

2025A court may resolve an ineffective assistance of counsel claim “solely on the basis that the defendant has failed in either regard.” People v. Romero, 2015 COA 7 , ¶ 25 (citing People v. Garcia, 815 P.2d 937, 941 (Colo. 1991)).

2026See Weaver v. Massachusetts, 582 U.S. 286, 300-01 (2017) (“[W]hen a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically.

2025The Court then concluded that, because “not every public-trial violation will in fact lead to a fundamentally unfair trial,” when a defendant “raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically.” Id. at 300-01 .

2024People v. Long, 126 P.3d 284, 286 (Colo. App. 2005). ¶ 15 An ineffective assistance of counsel claim can be denied without a hearing if the record establishes that “the defendant’s allegations, even if proven true, would fail to establish one or the other prong of the Strickland test.” Ardolino, 69 P.3d at 77 .

2024People v. Long, 126 P.3d 284, 286 (Colo. App. 2005). ¶ 15 An ineffective assistance of counsel claim can be denied without a hearing if the record establishes that “the defendant’s allegations, even if proven true, would fail to establish one or the other prong of the Strickland test.” Ardolino, 69 P.3d at 77 .

2015People v. Sparks , 914 P.2d 544, 547 (Colo. App. 1996).

2015People v. Sparks, 914 P.2d 544, 547 (Colo.App.1996).

2015See, e.g., People v. Cole, 775 P.2d 551, 554 (Colo.1989).

2014See, e.g., People v. Cole, 775 P.2d 551, 554 (Colo.1989).

2013See People v. Thomas, 867 P.2d 880, 886 (Colo.1994) ("In cases where the ineffective assistance of counsel claim can purportedly be shown on the record, a proper record on appeal may still require explanations by trial counsel about alleged incompetent acts or omissions, or expert testimony as to the requisite stan dard of care in the applicable legal community.").

2006See Ardolino v. People, 69 P.3d 73, 77 (Colo.2003)(“In light of the considerations potentially involved in determining ineffective assistance, defendants have regularly been discouraged from attempting to litigate their counsels’ effectiveness on direct appeal.”); People v. Thomas, 867 P.2d 880, 886 (Colo.1994)(“[T]his court has expressed a preference for having ineffective assistance of counsel claims brought in Crim.

2025Strickland v. Washington, 466 U.S. 668, 687 (1984); see People v. Washington, 2014 COA 41, ¶ 18 .

2025Strickland v. Washington, 466 U.S. 668, 687 (1984); see People v. Washington, 2014 COA 41, ¶ 18 .

2025Strickland v. Washington, 466 U.S. 688, 697 (1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994).

2006See Davis v. People, 871 P.2d 769 (Colo.1994) (to establish ineffective assistance of counsel, defendant must prove that defense counsel’s performance was deficient and that the deficient performance prejudiced him).

2025See People In Interest of T.M.S., 2019 COA 136, ¶ 63 (rejecting prejudice argument where parent failed to explain how testimony by witnesses that counsel should have called would have refuted the department’s evidence). ¶ 14 Relying on United States v. Cronic, 466 U.S. 648, 659 (1984), and People v. Robles, 74 P.3d 437, 439 (Colo. App. 2003), father argues that the familiar Strickland prejudice test doesn’t apply when an ineffective assistance of counsel claim arises from the total denial of the assistance of counsel.

2015For example, no additional showing of prejudice is required if counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing" because counsel is either "totally absent, or prevented from assisting the accused during a critical stage of the proceeding." United States v. Cronic, 466 U.S. 648 , 659 & n. 25, 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984) ; see People v. Robles, 74 P.3d 437 , 439 (Colo. App. 2003) ("[T]he Strickland prejudice test does not apply at all when an ineffective assistance of counsel claim arises because of the actual or constructive total denial of

2025People v. Duran, 2025 COA 34, ¶ 16 ; Strickland, 466 U.S. at 687 ; see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying the Strickland test to ineffective assistance of counsel claims in cases involving guilty pleas).

2025See People v. Corson, 2016 CO 33, ¶ 35 (citing Hill v. Lockhart, 474 U.S. 52 , 58- 59 (1985)). ¶ 30 Failure to prove either prong is fatal to an ineffective assistance of counsel claim.

2025See People v. Corson, 2016 CO 33, ¶ 35 (citing Hill v. Lockhart, 474 U.S. 52 , 58- 59 (1985)). ¶ 30 Failure to prove either prong is fatal to an ineffective assistance of counsel claim.

2024Strickland v. Washington , 466 U.S. 668, 687 (1984); see Corson , ¶ 35 (if a defendant has failed to show prejudice, a court may resolve an ineffective assistance of counsel claim on t hat basis and need not address whether counsel’s performance w as deficient) . ¶ 15 The district court has broad discretion to determine wh ether the defendant has established a fair and just reason to wi thdraw a guilty plea.

2015And as relevant here, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Cuyler v. Sullivan, 446 U.S. 335 , 345-50, 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980).

2009However, "a defendant who shows that a conflict of interest actually affected the adequacy of his [or her] representation need not demonstrate prejudice in order to obtain relief" Id. at 349-50, 100 S.Ct. at 1719 ; see also People v. Miera, 183 P.3d 672, 677 (Colo.App.2008) (concluding that Cuyler provides the appropriate standard to analyze an ineffective assistance of counsel claim based on a conflict of interest); People v. Kelling, 151 P.3d 650, 657 (Colo.App.2006) ("Where, as here, the trial court neglects to inquire into a potential conflict, a defendant, to obtain reversal, must show th

2026Accordingly, “[w]here the evidence in the 3 record supports the findings and holding of the postconviction court that presided over an evidentiary hearing, the judgment will not be disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27 . ¶9 To succeed on an ineffective assistance of counsel claim, the defendant must establish that (1) counsel’s performance was deficient, meaning it fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced the defendant, meaning that a reasonable probability exists that, but for counsel’s deficient performance, t

2025Accordingly, “[w]here the evidence in the record supports the findings and holding of the postconviction court that presided over an evidentiary hearing, the judgment will not be disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27 . ¶ 23 To succeed on an ineffective assistance of counsel claim, the defendant must establish that (1) counsel’s performance was deficient, meaning it fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced the defendant.

2025See Silva, 156 P.3d at 1168-69 . ¶ 16 To prevail on an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence that (1) defense counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced the defendant.

2024Strickland v. Washington, 466 U.S. 668, 687 (1984); Dunlap v. People, 173 P.3d 1054, 1061-62 (Colo. 2007); Silva, 156 P.3d at 1169 .