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Feb. 19, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Pospisil

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1774

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.2K)

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Combined Opinion

23CA1774 Peo v Pospisil 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1774
Jefferson County District Court No. 18CR1310
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eric Pospisil,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Moultrie and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 19, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

James West, Alternate Defense Counsel, Longmont, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Eric Pospisil, appeals the postconviction court’s

order denying his Crim. P. 35(c) motion without a hearing. We

affirm the order.

I. Background

¶2 Pospisil shot his girlfriend in the head, fled the scene, and

later burned the car he used to flee. Pospisil’s girlfriend suffered a

severe brain injury.

¶3 A jury found Pospisil guilty of attempted second degree

murder, first degree assault, first degree aggravated motor vehicle

theft, and tampering with physical evidence. The district court

sentenced Pospisil to an aggregate thirty-two years in prison.

¶4 Pospisil appealed his conviction, and a division of this court

affirmed. People v. Pospisil, (Colo. App. No. 19CA0583, July 15,

2021) (not published pursuant to C.A.R. 35(e)).

¶5 Pospisil later sought a sentence reduction under Crim. P.

35(b). The postconviction court denied the motion.

¶6 Pospisil then filed a pro se Rule 35(c) motion, alleging that his

trial counsel had provided ineffective assistance by (1) convincing

him to reject a plea agreement with a potential sentence of ten to

thirty-two years and (2) “waiving any claim” that a special jury had

1
to make a factual finding regarding “the presence of a deadly

weapon and/or serious bodily injury.” The postconviction court

denied Pospisil’s motion without an evidentiary hearing.

¶7 Pospisil now appeals only the denial of his claim that his trial

counsel was ineffective by convincing him to reject a plea deal and

proceed to trial.1

II. Standard of Review and Applicable Law

¶8 We review de novo a postconviction court’s denial of a Rule

35(c) motion without an evidentiary hearing. People v. Cali, 2020

CO 20, ¶ 14.

¶9 To warrant a hearing on a Rule 35(c) motion, a defendant

must allege facts that, if true, entitle him to relief. People v. Joslin,

2018 COA 24, ¶ 4. A postconviction court may deny a Rule 35(c)

motion without an evidentiary hearing if (1) the allegations are bare

and conclusory; (2) the allegations, even if true, do not warrant

relief; or (3) the record directly refutes the allegations. People v.

Duran, 2025 COA 34, ¶ 15.

1 Because Pospisil does not reassert his remaining ineffective

assistance of counsel claim, we deem it abandoned. See People v.
Villarreal, 231 P.3d 29, 32 n.1 (Colo. App. 2009), aff’d, 2012 CO 64,
and abrogated on other grounds by, Hagos v. People, 2012 CO 60.

2
¶ 10 A defendant has a constitutional right to effective assistance of

counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. To

prevail on an ineffective assistance claim, a defendant must

establish that (1) counsel’s performance was deficient, meaning it

fell below an objective standard of reasonableness; and (2) the

deficient performance prejudiced him, meaning there is a

reasonable probability that, but for counsel’s errors, the outcome

would have been different. Strickland v. Washington, 466 U.S. 668,

687 (1984). If a defendant fails to prove either the performance or

prejudice prong, the court may resolve the claim on that basis

alone. Id. at 697.

¶ 11 A defendant’s constitutional right to effective representation

extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S.

156, 162 (2012). To establish deficient performance in the plea

context, a defendant must show that counsel’s advice deprived him

of the opportunity to make a reasonably informed decision whether

to accept or reject a plea offer. People v. Delgado, 2019 COA 55,

¶ 17; see People v. Corson, 2016 CO 33, ¶ 35 (noting that the

performance prong under Strickland “is no different in the plea

setting”). To establish prejudice based on a rejected plea offer, a

3
defendant must demonstrate a reasonable probability that (1) he

would have accepted the plea offer; (2) the prosecution would not

have withdrawn it in light of intervening circumstances; (3) the

court would have accepted its terms; and (4) the conviction or

sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that were imposed.

Delgado, ¶ 21.

¶ 12 We broadly construe pleadings filed by unrepresented litigants

“to ensure that they are not denied review of important issues

because of their inability to articulate their argument like a lawyer.”

Jones v. Williams, 2019 CO 61, ¶ 5. But we will not rewrite an

unrepresented party’s pleadings or act as their advocate. Cali,

¶ 34.

III. Analysis

¶ 13 Pospisil contends that he alleged sufficient facts to entitle him

to an evidentiary hearing on his claim regarding trial counsel’s

inadequate plea advice. We disagree.

¶ 14 In his motion, Pospisil alleged only that the prosecution

“tendered a plea agreement” with a sentence of ten to thirty-two

years and that he “was very much inclined to take the deal,” but his

4
trial counsel “vehemently suggested that [Pospisil] not take the

plea”; that a trial victory was “basically a foregone conclusion”; and

that even if he lost at trial, he would “give it all back on appeal.”2

¶ 15 But nothing in these conclusory allegations, even if true,

shows deficient performance. That is, Pospisil doesn’t allege that

trial counsel failed to convey a plea offer to him. See People v.

Perry, 68 P.3d 472, 477 (Colo. App. 2002) (adopting rule that failure

to convey plea offer is deficient performance). He doesn’t allege that

counsel misrepresented the terms of the plea offer or misadvised

him about the advantages or disadvantages of the alleged offer. See

Delgado, ¶ 17 (“Failure to correctly advise a defendant about his

sentencing exposure deprives the defendant of the opportunity to

make a reasonably informed decision whether to accept or reject an

offer and constitutes deficient performance under Strickland.”). And

he doesn’t allege that trial counsel precluded him from accepting

the plea offer or coerced him to reject it. See People v. Lopez, 2025

COA 73, ¶ 30 (“[A] plea is invalid when it is obtained by ‘actual or

2 The alleged plea offer is not in the record, and other than a broad

sentencing range, Pospisil fails to allege facts about its purported
terms.

5
threatened physical harm or by mental coercion overbearing the will

of the defendant.’” (quoting Brady v. United States, 397 U.S. 742,

750 (1970))).

¶ 16 Instead, Pospisil alleges only that counsel advised against

accepting the plea offer and wrongly assessed the chances of

success at trial. But “an erroneous strategic prediction about the

outcome of a trial is not necessarily deficient performance.” Lafler,

566 U.S. at 174; see also People v. Zuniga, 80 P.3d 965, 973 (Colo.

App. 2003) (“[A]bsent a showing of a deliberate misrepresentation

that induced a defendant’s guilty plea, counsel’s erroneous

assessment concerning sentencing does not constitute ineffective

assistance of counsel.”).3

¶ 17 And even if the Rule 35(c) motion alleged sufficient facts to

show deficient performance, it failed to sufficiently allege prejudice.

Specifically, the motion did not allege facts to demonstrate a

reasonable probability that the prosecution would not have

3 Pospisil now asserts that the record supports “the notion that

[trial counsel] may have told him that a trial could not result in
more jail time” and that counsel misadvised Pospisil “about the
collateral consequences of a plea.” But that is not alleged in the
Crim. P. 35(c) motion, and we don’t consider allegations not raised
in the motion. See People v. Huggins, 2019 COA 116, ¶ 17.

6
withdrawn the alleged offer; that the court would have accepted its

terms; and that, most critically, the conviction or sentence, or both,

under the offer’s terms would have been less severe than under the

judgment and sentence that were imposed. See Delgado, ¶ 21;

Lafler, 566 U.S. at 164. The most the Rule 35(c) motion alleged was

that the prosecution extended a plea offer — to an unidentified

charge or charges — with a sentencing range that included the

sentence Pospisil ultimately received. Though it baldly alleged that

the “outcome would have been different” had Pospisil not gone to

trial and “been given the maximum sentence,” it alleged no facts to

show that he would have received a shorter sentence under the

purported plea offer, or even that a shorter sentence was reasonably

likely.

¶ 18 And while Pospisil now asserts that he “may have received a

shorter sentence if he had pleaded guilty” and that “he certainly

would not have ended up with a verdict for multiple counts

including one that extended his parole eligibility date by years,”

these allegations appear nowhere in the Rule 35(c) motion. We

therefore will not consider them. See People v. Huggins, 2019 COA

116, ¶ 17.

7
¶ 19 For all these reasons, we agree with the postconviction court

that the allegations in the Rule 35(c) motion “are bare and

conclusory and fail to allege any specific facts that, even if true,

would provide a basis for relief.”4

IV. Disposition

¶ 20 The order is affirmed.

JUDGE MOULTRIE and JUDGE HAWTHORNE concur.

4 We agree with Pospisil on one point: a defendant is not required to

present evidence to obtain a hearing under Rule 35(c). And to the
extent anything in the postconviction court’s order suggested
otherwise, the court erred. But as we have already discussed, the
postconviction court correctly denied the request for a hearing
because the allegations in the Rule 35(c) motion are bare and
conclusory.

8