Think You May Have an Ineffective Assistance of Counsel Claim?
Here at the Law Office of Daniel H. Kyser, L.L.C., we have brought ineffective assistance claims in the past and intend to continue doing so. If, after reading this, you believe you may have a claim, please do not hesitate to call for a free initial consultation. We are highly selective about which 35(c) claims we take, because often, no matter how unjust a result may feel, the law requires proof that the result was actually caused by ineffective assistance of counsel, not simply that a different lawyer might have done something differently. If, after your free consultation, the Law Office of Daniel H. Kyser agrees to take your 35(c) motion, it is because we believe you have a valid claim.
Attorney Daniel H. Kyser has over 19 years of courtroom and appellate experience across Colorado’s trial and appellate courts. The firm is based in Greenwood Village, Colorado, and serves clients statewide.
Call 303-831-6111 for a free, confidential consultation, or request a case evaluation online. Learn more about the firm’s Colorado appeals and post-conviction practice.
During my 19+ years of handling criminal defense appeals, and more specifically Rule 35(c) motions, the topic of ineffective assistance of counsel comes up frequently. It is common, and probably normal, for a person who lost at trial, or who agreed to a plea they now regret, to start blaming their lawyer. Some believe their attorney didn’t do a good job, should have presented certain evidence, or should have called a particular witness, and that if they had, the result would have been different. Some people even come to believe that their own lawyer and the prosecution were working together against them. I understand why someone may feel that way.
The legal standard for proving ineffective assistance of counsel in Colorado is demanding by design, and most claims, even sincere ones, do not meet it. This article explains what the law actually requires, how a Rule 35(c) motion works procedurally, why the “it was just strategy” defense succeeds as often as it does, and what kinds of claims actually have a realistic chance.
What Is a Rule 35(c) Motion, and Why Isn’t This Just Another Appeal?
Colorado law generally discourages bringing ineffective-assistance claims in a traditional direct appeal and instead puts them into a separate proceeding: a petition for postconviction relief under Colorado Rule of Criminal Procedure 35(c). The rule allows a defendant to seek relief, as a matter of right, on the grounds that the conviction was “obtained or sentence imposed in violation of the Constitution or laws of” the United States or Colorado, or on any other grounds “otherwise properly the basis for collateral attack upon a conviction or judgment.” Colo. R. Crim. P. 35(c)(2)(I), (VI). A Rule 35(c) motion is not a second bite at the apple. Issues you already raised, or should have raised, on direct appeal generally cannot be relitigated in a 35(c) motion. What this means is that there are often limited issues available using a 35(c) motion.
How the Process Actually Works
Once a Rule 35(c) petition is filed the Court generally must review it within 63 days. Colo. R. Crim. P. 35(c)(3)(IV). If after reading the initial petition, the court thinks there is no legally recognizable claim raised, then it can end the motion right there without ever involving the prosecution or having a hearing. If the petition survives that initial screening, it is served on the District Attorney’s office, which then has 35 days to respond, and the defendant has 21 days to reply. Colo. R. Crim. P. 35(c)(3)(V). From there, the court can either rule on the papers or order an evidentiary hearing.
Timing matters. Under C.R.S. § 16-5-402, the deadline to file runs from the date of conviction (or, for a juvenile, from their 18th birthday): class 1 felonies have no statutory deadline at all, other felonies must be filed within 3 years, misdemeanors within 18 months, and petty offenses within 6 months. Missing these windows, absent a recognized exception, generally means the court must dismiss your motion.
The Legal Standard: Strickland’s Two Prongs
Every ineffective-assistance claim in Colorado is governed by the framework the United States Supreme Court established in Strickland v. Washington, 466 U.S. 668 (1984).
To win a 35(c) claim, a defendant must satisfy two separate prongs, and failing either one means the court must find no ineffective assistance of counsel.
Prong one: deficient performance. The first legal standard for ineffective assistance of counsel is whether, “in light of all circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Lawyers are presumed to be effective. The defendant must prove the representation was unreasonable under prevailing professional norms, and that the decision in question was an unsound strategy. Strickland, 466 U.S. at 688–89.
Prong two: prejudice. Even genuinely poor lawyering is not enough on its own. In Colorado, it must be proved that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” People v. Dillon, 739 P.2d 919, 921 (Colo. App. 1987).
Why the “It Was Just Strategy” Defense Usually Wins
What this all means is that for a lawyer’s conduct to be ineffective, it must fall below a level that any reasonable, objective person could believe was competent. The law does not prohibit bad lawyering; it prohibits ineffective lawyering. It is not enough for the defendant or a family member to feel that the lawyer did a bad job. The prosecution often argues that the decision being second-guessed was not a mistake, but trial strategy. Most of the time, it does not matter that the strategy turned out to be wrong. The strategy of course of action does not need to be correct, it only needs to be reasonable given the facts and circumstances of the particular case.
I often see this particular situation: a person convicted at trial believes certain evidence should have been presented, or that a different witness should have been called. Setting aside that the evidence or witness may have been legally inadmissible for entirely separate reasons, this is the classic scenario where the strategy defense gets raised, and most of the time, it works. A lawyer can simply acknowledge they were aware of the evidence or witness, but made a reasonable judgment call that it would not help, or might actually hurt, the case.
The strategy defense holds up less well against purely legal questions, such as whether the client was advised of the possible penalties or elements of the crime, whether they were advised of the immigration consequences of a plea, and, in some extreme cases, whether counsel had a duty to investigate at all.
Proving It Is Expensive and Difficult
The burden of proving ineffective assistance falls entirely on the defendant, and that burden carries real costs.
The first step is almost always ordering transcripts of every relevant hearing. Transcribers typically charge per page, and if the underlying case involved dozens of court appearances, multi-day motions hearings, and a multi-week trial, the transcript cost alone can easily run into the thousands of dollars.
Beyond that, a defendant generally needs to retain an expert in trial procedure, often a long-experienced criminal defense attorney or a law professor, to testify that the conduct at issue was objectively unreasonable under prevailing professional norms. Experts of that caliber are not inexpensive; you are paying for years of specialized expertise. If the defendant is incarcerated and the court grants an evidentiary hearing, there is a right to appointed counsel in the form of a public defender or alternate defense counsel, and in those cases the state will bear the cost of the lawyer and expert. Outside of that scenario, the defendant typically bears these costs personally.
The Prejudice Hurdle Is the Hardest Part
Even after clearing the deficient-performance prong, a defendant still has to show the errors actually mattered to the outcome. The prejudice prong asks whether the defendant would have had a reasonable chance, not necessarily a 50 percent or greater chance, of a different result. Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012).
Still, a court is fully entitled to find that whatever went wrong had no real effect on the verdict, often because the rest of the evidence against the defendant was overwhelming. If the Court makes this finding is frequently the hardest part of this process for a defendant to accept, but it is also where most claims, even ones resting on a genuine attorney error, ultimately fall apart.
Why Most Claims Fail, and Which Ones Actually Succeed
Because the legal standard is written this way, many — though not all — ineffective-assistance claims fail. A judge can deny a 35(c) motion without ever holding a hearing, and judges are not shy about using that power.
Despite the demanding standard, the real difficulty of presenting proof, and the ever-present risk that a court simply finds the evidence overwhelming regardless of counsel’s errors, there are cases where ineffective assistance of counsel is real and provable. In my experience, the claims most likely to succeed tend to focus on legal issues rather than tactical, in-the-moment judgment calls. A lawyer who fails to advise a client of the possible penalties they face, the actual elements of the charge, or the immigration consequences of a plea, or who in extreme cases fails to investigate the case at all, is far more likely to have crossed the line from strategy into ineffective counsel.
Frequently Asked Questions
What is the legal standard for ineffective assistance of counsel in Colorado?
Colorado follows the two-prong test from Strickland v. Washington, 466 U.S. 668 (1984). A defendant must show both that counsel’s performance fell outside the wide range of professionally competent assistance, and that there is a reasonable probability the result of the proceeding would have been different but for counsel’s errors.
Is a Rule 35(c) motion the same thing as an appeal?
No. A direct appeal challenges legal errors that are apparent from the trial record. A Rule 35(c) motion is a separate, collateral proceeding generally used for claims, like ineffective assistance, that usually require evidence outside the existing record, such as testimony about why a lawyer made a particular decision.
How long do I have to file a Rule 35(c) motion in Colorado?
Under C.R.S. § 16-5-402, the deadline depends on the conviction: class 1 felonies have no time limit, other felonies must be filed within 3 years, misdemeanors within 18 months, and petty offenses within 6 months, generally measured from the date of conviction.
Why do so many ineffective assistance claims fail?
Largely because of the strong presumption that counsel’s decisions were reasonable strategy. Courts will not second-guess a strategic choice made after adequate investigation, even if it turned out badly, as long as the choice was objectively reasonable at the time it was made.
Can my lawyer’s choice not to call a witness or present certain evidence be ineffective assistance?
It can be, but it is one of the hardest types of claims to win, because it is so easily characterized as strategy. The stronger version of this claim usually involves a complete failure to investigate, where the lawyer was never in a position to make an informed strategic choice in the first place.
Do I need an expert to prove ineffective assistance of counsel?
In most cases, yes. Proving that an attorney’s conduct fell below prevailing professional norms typically requires expert testimony from an experienced criminal defense attorney or law professor, in addition to the cost of ordering complete hearing and trial transcripts.
What kinds of ineffective assistance claims have the best chance of success?
Claims centered on legal advice tend to fare better than claims about tactical decisions made in the heat of trial. Failing to advise a client about the possible penalties they face, the actual elements of the charged offense, immigration consequences of a plea, or a wholesale failure to investigate the case, are the categories most likely to meet the Strickland standard.
Law Office of Daniel H. Kyser, 5950 S. Willow Drive, Suite 250, Greenwood Village, CO 80111. Based in the Denver Tech Center, serving Adams, Arapahoe, Denver, Douglas, Jefferson, and Weld counties, and handling criminal appeals and postconviction matters statewide.
