v. Sharp

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 29, 2019

                               2019COA133

No. 18CA0264, People v. Sharp — Criminal Procedure — New
Trial — Postconviction Remedies — New Trial Based on Newly
Discovered Evidence; Attorneys and Clients — Ineffective
Assistance of Counsel

     A division of the court of appeals holds that a defendant

asserting a claim for ineffective assistance of counsel under Crim. P.

35(c) based on counsel’s failure to file a motion for a new trial must

prove prejudice resulting from the failure. This means the

defendant must prove that the trial court would have granted the

motion.
COLORADO COURT OF APPEALS                                         2019COA133


Court of Appeals No. 18CA0264
Adams County District Court No. 11CR1307
Honorable Ted C. Tow, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Harley David Sharp,

Defendant-Appellee.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division IV
                          Opinion by JUDGE J. JONES
                       Román and Rothenberg*, JJ., concur

                          Announced August 29, 2019


Dave Young, District Attorney, Michael Whitney, Deputy District Attorney,
Brighton, Colorado, for Plaintiff-Appellant

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    The People appeal the postconviction court’s order granting

 the Crim. P. 35(c)(2) motion of defendant, Harley David Sharp, and

 ordering a new trial. We reverse and remand with instructions to

 reinstate the judgment of conviction and the sentence imposed. We

 first conclude that defendant didn’t establish prejudice resulting

 from his trial attorney’s failure to investigate. And we conclude that

 to establish ineffective assistance of trial counsel where counsel

 failed to move for a new trial, a defendant must demonstrate a

 reasonable probability that the court would have granted the

 motion. Prejudice can’t be presumed in this situation, and in this

 case, defendant didn’t establish a reasonable probability that a

 motion for a new trial would have been granted.

                           I.   Background

¶2    The People charged defendant with sexually assaulting his

 daughter between 2008 and 2010 when she was between two and

 five years old. The victim’s great aunt had reported the assaults to

 the department of social services after the victim confided in her

 and spontaneously engaged in aggressive sexual behavior in late

 2010.




                                   1
¶3    At trial, the victim struggled to remember details. But she

 testified that her father had touched her buttocks, touched and

 licked her vagina, and had her touch his penis. The victim’s mother

 testified that one night she woke up and saw defendant touching

 the victim’s vagina while also touching himself. She told defendant

 to stop, but she didn’t report the incident. 1 A sexual assault nurse

 examiner (SANE) who examined the victim shortly after the victim’s

 great aunt reported the assaults testified that she didn’t find any

 physical trauma. But according to the SANE, that was a fairly

 typical result for the type of contact the victim and her mother

 accused defendant of engaging in. (The SANE had been told the

 victim hadn’t had any contact with her father for at least two

 months.) She also said that only about four percent of the children

 she has examined for evidence of sexual assault showed any

 physical trauma.




 1At the time of trial, the victim’s mother had pleaded guilty to
 sexual assault and attempted sexual assault relating to the same
 conduct with which defendant was charged, and was serving a
 seven-year prison sentence.

                                   2
¶4    A jury found defendant guilty of sexual assault on a child,

 sexual assault on a child as a pattern of abuse, and sexual assault

 on a child by one in a position of trust.

¶5    At defendant’s sentencing hearing, R.H., a cousin of the

 victim’s mother, spoke with defense counsel’s investigator and

 made some new allegations. R.H. said that the victim had asked

 her “what would happen if I lied?” — a statement R.H. assumed

 meant the victim was lying about her father assaulting her. R.H.

 also told the investigator that, in 2010, the victim’s grandmother

 had offered to pay R.H. to make false allegations of sexual assault

 against the grandmother’s husband (or ex-husband) to get “revenge”

 against him for refusing to pay rent to her. Defense counsel didn’t

 move for a new trial based on R.H.’s allegations.

¶6    A division of this court affirmed defendant’s convictions on

 direct appeal. People v. Sharp, (Colo. App. No. 13CA1761, June 11,

 2015) (not published pursuant to C.A.R. 35(f)).

¶7    Defendant filed a pro se motion (followed shortly thereafter by

 a supplemental motion from newly appointed postconviction

 defense counsel) for postconviction relief under Crim. P. 35(c). He

 sought a new trial based on newly discovered evidence (see Crim. P.


                                    3
 35(c)(2)(V)) — specifically, the information R.H. had given the

 investigator — and alleged that his trial counsel had been

 ineffective in a variety of ways (see Crim. P. 35(c)(2)(I)). As now

 relevant, defendant alleged that his trial counsel provided ineffective

 assistance by failing to investigate potential witnesses (one of whom

 was R.H.) and by failing to move for a new trial under Crim. P. 33

 after R.H. came forward with new information.

¶8    The postconviction court held an evidentiary hearing on the

 motion. Defendant testified that in late 2007 or early 2008, the

 grandmother picked up the victim from the babysitter and took her

 home to defendant. The grandmother told him that she had seen

 inflammation and green discharge on the victim’s vaginal area after

 picking her up. He said that he “flipped” and took the victim to the

 hospital, where a doctor examined her and didn’t find any

 inflammation or green discharge. He said he told trial counsel

 about the incident before trial, but counsel failed to investigate

 further or to seek information from the hospital where the victim

 had been examined. R.H. testified about her conversations with the

 victim, the grandmother, and the defense investigator.




                                    4
¶9    The postconviction court rejected many of defendant’s claims,

 but found merit in two. First, it found trial counsel’s failure to

 investigate defendant’s assertion that he had taken the victim to a

 hospital to be examined during the same period he was allegedly

 assaulting her was ineffective assistance that prejudiced defendant.

 On this basis, the court vacated defendant’s convictions and

 ordered a new trial. Second, it found that trial counsel’s failure to

 move for a new trial after R.H. came forward was ineffective

 assistance. The court said it did not need to determine whether

 such a motion would have been successful, reasoning that the

 failure to move for a new trial is like a failure to perfect an appeal, a

 circumstance in which the loss of the appellate proceeding

 constitutes the required prejudice. So the remedy for a failure to

 move for a new trial, the court said, would be to restore defendant’s

 opportunity to seek a new trial. 2




 2 The court addressed this issue only as a backstop in case this
 court disagreed with its conclusion on the prior hospital visit issue.
 There would be no point in allowing defendant to move for a new
 trial if this court were to affirm the postconviction court’s ruling
 granting a new trial.

                                      5
                             II.   Discussion

¶ 10   The People challenge both of the postconviction court’s bases

  for finding ineffective assistance of counsel. We agree with them as

  to both.

              A.   Applicable Law and Standard of Review

¶ 11   To prevail on a claim of ineffective assistance of counsel under

  Rule 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 v. Washington,

  

, 687-88 (1984). There is a strong presumption that

  counsel’s performance did not fall below an objective standard of

  reasonableness. 

To prove prejudice, the defendant must

  show “a reasonable probability that, but for counsel’s

  unprofessional errors, the result of the proceeding would have been

  different.” 

accord Ardolino v. People, 

, 76

  (Colo. 2003) (“[A] reasonable probability means a probability

  sufficient to undermine confidence in the outcome.”).

¶ 12   A postconviction court’s ruling on a Rule 35(c) motion presents

  a mixed question of fact and law. Dunlap v. People, 

,

  1063 (Colo. 2007). We defer to the court’s findings of fact if they


                                     6
  have record support, but we review any legal conclusions de novo.

  

conclusions to which we do not defer include “the

  ultimate determinations on Strickland’s performance and prejudice

  prongs.” People v. Sifuentes, 

, ¶ 16; see People v.

  Newmiller, 

, ¶ 18.

                               B.    Analysis

                        1.    Failure to Investigate

¶ 13   The postconviction court found that trial counsel’s failure to

  further investigate the 2007 or 2008 hospital visit met both

  Strickland prongs: (1) it fell below the objective standard of

  reasonableness and (2) “[t]his information, if true, may very well

  have had some impact on the jury’s consideration of the facts.”

  This is so, the court said, because this evidence would have shown

  “that during the same time period Defendant was alleged to have

  been perpetrating upon this child, the child was examined by a

  doctor, who had found no signs of physical abuse.” The court

  concluded that “while it is entirely possible that a jury will still

  convict Defendant, the Court finds that the confidence in the verdict

  is sufficiently undermined[.]”




                                      7
¶ 14   We don’t address the postconviction court’s finding of

  ineffective assistance because we disagree with its ultimate

  determination of prejudice. See 

(“[A]

  court need not determine whether counsel’s performance was

  deficient before examining the prejudice suffered by the defendant

  as a result of the alleged deficiencies.”); People v. Villanueva, 

, ¶ 66 (“If a court determines that a defendant has failed to

  prove either prong of the Strickland analysis, it may deny an

  ineffective assistance claim without addressing the other prong.”).

¶ 15   To show prejudice, defendant had to show a reasonable

  probability that the result of the trial would have been different had

  defense counsel investigated the hospital visit and introduced

  related evidence at trial. See Villanueva, ¶ 67 (A defendant “must

  do more than simply allege that other evidence could have aided his

  defense; he must identify the evidence and demonstrate that it

  would have advanced his defense.”); People v. Pendleton, 

, ¶ 34 (“[T]he mere possibility that additional investigation

  would have revealed useful information does not establish

  ineffective assistance.”).




                                     8
¶ 16   We conclude that, for the following reasons, defendant failed to

  meet his burden:

           • The SANE who examined the victim in early 2011

              testified that only four percent of over 600 children

              whom she had examined for sexual assault showed

              signs of irritation or trauma. She explained that

              children heal “really quickly” and often the abuse is

              “gentle.” Defense counsel didn’t challenge any of that

              testimony (and defendant doesn’t contend he should

              have).

           • The People didn’t allege that defendant had committed

              any acts of penetration or any other forceful acts one

              might expect to cause physical trauma.3

           • The first examination of the victim allegedly occurred in

              late 2007 or early 2008. There was therefore only a

              small overlap, if any, between the time of that

              examination and the period covering the charges


  3 The People argued and presented evidence of only nonforceful
  touching and licking. The jury made specific findings as to the
  particular acts defendant had committed. All involved “touching” or
  “licking” either the victim’s or defendant’s genitals.

                                   9
  (January 1, 2008, to December 10, 2010). Indeed, the

  evidence strongly points to defendant having committed

  the charged acts in 2010, two or more years after the

  first examination. The victim testified that she was six

  years old when defendant touched her. (She actually

  didn’t turn six until July 5, 2011.) Her mother testified

  that she saw one of the incidents in the summer of

  2010. (She claimed to have seen only that one

  incident.) Defendant testified that he was separated

  from the victim’s mother from July 2008 to August

  2010, he was homeless during much of that time, the

  victim lived with her mother during that time, and he

  had very little contact with the victim during that time.

  And the victim told her great aunt about defendant’s

  acts in late 2010, about the same time the great aunt

  noticed the victim exhibiting inappropriate sexual

  behavior.

• This wasn’t a typical child sex assault case, where the

  only evidence is the child victim’s testimony. As noted,

  the victim’s mother testified that she once saw


                       10
               defendant touching the victim while the victim’s pants

               were down. And the mother had pleaded guilty to a

               sexual offense against the victim arising from that

               incident.

¶ 17   In light of all this, we conclude that the potential evidence of

  the first examination would have had only minimal relevance, and

  virtually no exculpatory value. The nature of the charged conduct

  (supported by both the victim’s and her mother’s testimony) and the

  SANE’s testimony were entirely consistent with any finding of no

  physical trauma.

¶ 18   Though defendant argues that taking his daughter to a

  hospital for a sexual assault examination isn’t the conduct of one

  who has sexually assaulted his daughter, and therefore evidence of

  that event would have negatively impacted the victim’s and her

  mother’s credibility, he overstates the point. After all, there was a

  potential gap of more than two years between the first examination

  and the acts with which he was charged.

¶ 19   Defendant’s argument that the evidence would have

  undermined the grandmother’s credibility fares no better.




                                    11
¶ 20   According to defendant’s testimony at the postconviction

  hearing, it was the grandmother who told defendant the victim may

  have been sexually assaulted by a babysitter, which prompted him

  to take the victim to the hospital in late 2007 or early 2008. So,

  defendant says, had the jury learned that the grandmother had

  accused someone else of sexually assaulting the victim, it might

  have viewed her less credibly. But the grandmother’s credibility

  wasn’t an issue at trial. She didn’t testify, and no one testified that

  the grandmother had ever accused defendant of sexually assaulting

  the victim.4 The only things mentioned about the grandmother

  were that she sometimes babysat the victim and had spoken to the

  victim about defendant after the police arrested defendant. 5

¶ 21   In sum, defense counsel’s failure to investigate the 2007 or

  2008 examination doesn’t undermine our confidence in the




  4 The grandmother didn’t testify because defense counsel
  successfully argued she shouldn’t be allowed to do so because her
  presence during the victim’s testimony violated the court’s
  sequestration order. Defendant has never asserted that his counsel
  provided ineffective assistance in making that request.
  5 The victim testified that her grandmother talked to her (after she

  had come forward) about getting her father help and had told her to
  “just say the truth.”

                                    12
  outcome of the trial. The postconviction court therefore erred in

  setting aside defendant’s convictions and ordering a new trial.

                   2.   Failure to Move for a New Trial

¶ 22   Though we reverse the postconviction court’s decision to set

  aside defendant’s convictions, we also must address its finding that

  counsel provided ineffective assistance by failing to move for a new

  trial. This is so because the postconviction court ordered that

  defendant be allowed to file a motion for a new trial in the event we

  reversed its decision to vacate the convictions. Such a motion could

  conceivably result in a new trial. Functionally, therefore, the

  postconviction court’s ruling on the failure to move for a new trial

  could have the same effect as a ruling setting aside the convictions.

  We conclude that the postconviction court erred in granting

  defendant relief on this claim.

¶ 23   The postconviction court concluded that counsel provided

  ineffective assistance by failing to move for a new trial after R.H.

  came forward at the sentencing hearing. The court reasoned that

  R.H.’s assertion that the grandmother had offered to pay R.H. to

  falsely accuse the grandmother’s husband to get revenge against

  her husband and R.H.’s assertion that the victim had said “what


                                     13
  would happen if I lied?” were “potentially exculpatory.” That

  information, the court said, could have affected the jury’s

  assessment of the victim’s credibility and supported “the possible

  defense that [the grandmother] planted the allegations with the

  [victim].” (Emphasis added.) So, the court concluded, trial counsel

  provided ineffective assistance by failing to file a motion for a new

  trial based on this “newly discovered” evidence.

¶ 24   But the court didn’t find that this evidence met the test for

  granting a new trial based on newly discovered evidence. Indeed,

  the court said it didn’t need to “determine whether a new trial

  would have been granted.” Instead, citing People v. Long, 

, 286 (Colo. App. 2005), the court determined that, like the

  forfeiture of an appeal, “the loss of the ability to present an

  argument for a new trial is sufficient prejudice under Strickland.”

¶ 25   The postconviction court erred in relieving defendant of the

  obligation to show Strickland prejudice. And because defendant

  didn’t establish that the new evidence met the requirements for

  granting a new trial, the postconviction court erred in granting

  defendant relief on this claim.




                                     14
       a.   Defendant Was Required to Show Strickland Prejudice

¶ 26   To reiterate, Strickland generally requires a showing that the

  defendant was prejudiced — that is, that there is a reasonable

  probability that the result of the proceeding would have been

  different but for counsel’s deficient performance. 

, 694. Such proof of actual prejudice is necessary

  because of the “strong presumption of reliability” attached to the

  judgment. 

see Smith v. Robbins, 

, 286

  (2000); People v. Valdez, 

, 1278 (Colo. App. 2007).

¶ 27   Only in very limited circumstances is prejudice presumed. A

  complete denial of counsel falls in this category, United States v.

  Cronic, 

, 658-59 (1984), as does a complete failure to

  subject the prosecution’s case to meaningful adversarial testing, 

and a situation in which even fully competent counsel

  couldn’t provide effective assistance, 

¶ 28   More specifically relevant to this case, so does counsel’s failure

  to perfect a defendant’s desired appeal. Roe v. Flores-Ortega, 

, 483-84 (2000); 

. In such a case,

  the deficiency “deprive[s] [the defendant] of the appellate proceeding

  altogether.” 

; accord 

;


                                    15
  see also 

(comparing the complete denial of

  counsel, for which prejudice need not be shown, to “[t]he even more

  serious denial of the entire judicial proceeding itself, . . . to which

  [the defendant] had a right”). The upshot is that unlike a case

  where the defendant claims his counsel provided ineffective

  assistance during the appeal, for which the defendant must show

  that he would have prevailed on appeal but for the deficient

  performance, 

(unreasonable failure to file

  a merits brief on appeal required showing of actual prejudice); 

, in the circumstance where counsel fails to appeal

  in contravention of a defendant’s wishes, no such showing is

  required.

¶ 29   In Valdez, a division of this court extended this principle to a

  case in which postconviction counsel failed to timely pursue a

  motion under Crim. P. 35(c) as requested by the defendant,

  resulting in the postconviction court deeming the motion barred by

  the doctrine of 

. In reversing, the

  division concluded that because counsel’s ineffectiveness had

  caused the defendant to be denied “the judicial proceeding he




                                     16
  sought” — the Rule 35(c) proceeding — the defendant didn’t have to

  show Strickland prejudice. 

¶ 30   Our takeaways from this line of authority are (1) absent one of

  the situations identified in Cronic, a defendant must show actual

  prejudice unless counsel’s ineffectiveness caused the forfeiture of a

  “proceeding” in its entirety; and (2) a “proceeding” in this context

  means the whole of a discrete phase of a criminal prosecution. In

  Colorado, these discrete phases include (1) a trial proceeding, from

  the commencement of the case to the resolution of all allowed post-

  judgment, pre-appeal motions in the trial court; (2) an appellate

  proceeding, including at least a defendant’s appeal as a matter of

  right to this court; 6 and (3) a postconviction proceeding under Rule

  35(c).

¶ 31   With these principles in mind, we hold that counsel’s failure in

  this case to file a motion for a new trial didn’t result in the forfeiture

  of an entire proceeding but was, at most, ineffective assistance in

  6 We need not decide whether supreme court review, to which, with
  the exception of capital cases, a defendant has no right, constitutes
  a separate proceeding. We observe, however, that in People v.
  Valdez, 

, 410-11 (Colo. 1990), the supreme court held
  that a defendant who claimed that his counsel should have filed a
  petition for a writ of certiorari after an adverse decision by the court
  of appeals was required to show prejudice.

                                     17
  the course of a trial proceeding. And just as a defendant must

  show actual prejudice as a result of deficient performance in the

  course of an appellate proceeding, see 

;

  People v. Valdez, 

, 409-10 (Colo. 1990), or in the

  course of a Rule 35(c) proceeding, see People v. Fitzgerald, 

, 712-13 (Colo. App. 1998) (court properly denied postconviction

  relief where the defendant failed to show any prejudice caused by

  the previous postconviction counsel’s actions), a defendant is

  required to show prejudice as a result of counsel’s deficient

  performance in the course of a trial proceeding, see Bell v. Cone,

  

, 695-98 (2002) (where counsel didn’t entirely fail to

  subject the prosecution’s case to meaningful adversarial testing,

  but merely failed to do so at specific points — by failing to adduce

  mitigating evidence and failing to make a closing argument —

  prejudice would not be presumed).

¶ 32   Consider the analogous circumstance of counsel failing to

  move to suppress evidence. Such a motion, like a motion for a new

  trial, is filed within a proceeding. And granting a motion to

  suppress may result in the dismissal of charges. Yet, the Supreme

  Court has held that a defendant seeking postconviction relief based


                                    18
  on counsel’s failure to file such a motion must demonstrate actual

  Strickland prejudice by proving that the motion would have been

  granted. Kimmelman v. Morrison, 

, 375 (1986) (“[T]he

  defendant must also prove that his Fourth Amendment claim is

  meritorious and that there is a reasonable probability that the

  verdict would have been different absent the excludable

  evidence . . . .”); accord People v. Terry, 

, ¶ 31; People v.

  Vicente-Sontay, 

, ¶ 23.

¶ 33   Consider as well the equally analogous circumstance of

  counsel failing to move for a judgment of acquittal. In that

  circumstance, a defendant must also show Strickland prejudice.

  See, e.g., Rivera-Rivera v. United States, 

, 188 (1st Cir.

  2016) (a defendant must satisfy the prejudice prong when seeking

  relief for ineffective assistance of counsel based on counsel’s failure

  to move for acquittal); Commonwealth v. Hanible, 

, 442-

  43 (Pa. 2011) (the defendant’s ineffectiveness claim failed where he

  did not demonstrate “a reasonable probability that the trial court

  would have granted a motion for judgment on [sic] acquittal”).

¶ 34   We don’t see any principled difference in this context between

  failing to file a motion to suppress or failing to move for a judgment


                                    19
  of acquittal and failing to file a motion for a new trial. As we see it,

  all such failures are failures within a proceeding, not failures that

  deprive a defendant of “an entire judicial proceeding.”

¶ 35   Rule 35(c) itself also supports our conclusion. Subsection

  (c)(2)(V) says that a defendant may seek postconviction relief if

             there exists evidence of material facts, not
             theretofore presented and heard, which, by the
             exercise of reasonable diligence, could not
             have been known to or learned by the
             defendant or his attorney prior to the
             submission of the issues to the court or jury,
             and which requires vacation of the conviction
             or sentence in the interest of justice.

  In other words, a defendant may obtain postconviction relief under

  Rule 35(c)(2)(V) based on newly discovered evidence only by making

  essentially the same showing required to succeed on a Crim. P. 33

  post-trial motion for a new trial based on newly discovered

  evidence. See People v. Gutierrez, 

, 559-60 (Colo.

  1981) (setting forth a defendant’s burden on a Rule 33 motion for a

  new trial based on newly discovered evidence); People v. Gee, 

, ¶ 73 (same); People v. Muniz, 

, 1357 (Colo.

  App. 1996) (holding that the same elements apply to a claim under

  Rule 35(c)(2)(V)). A defendant may not avoid that burden simply by



                                     20
  repackaging his newly discovered evidence claim as one for

  ineffective assistance of counsel.

¶ 36   As noted, the only case the postconviction court cited in

  support of its conclusion was Long. Long, however, involved the

  forfeiture of the entire appellate proceeding. Defendant doesn’t cite

  any case, and we haven’t found one, in Colorado or elsewhere,

  indicating that losing the opportunity to move for a new trial is a

  forfeiture of an entire judicial proceeding such that a showing of

  Strickland prejudice isn’t required. On the contrary, numerous

  cases hold that a showing of Strickland prejudice is required in this

  context. See, e.g., United States v. Higgs, 

, 742-43

  (4th Cir. 2011) (a defendant must show a likelihood of prevailing on

  a motion for a new trial to establish prejudice based on counsel’s

  failure to file such a motion); Wilson v. Henry, 

, 991

  (9th Cir. 1999) (“[B]ecause the motion [for a new trial] almost

  certainly would have failed, [the defendant] has not demonstrated

  that he was prejudiced by counsel’s refusal to make it.”); Manley v.

  State, 

, 1328 (Fla. Dist. Ct. App. 1992) (there is no

  per se entitlement to relief when counsel fails to file a timely motion

  for a new trial); State v. C.D.L., 

, 80-81 (Utah Ct. App.


                                       21
  2011) (the defendant failed to show prejudice from counsel’s failure

  to move for a new trial because he couldn’t show that he was

  entitled to a new trial). 7 For the reasons discussed above, we find

  these authorities persuasive.

           b.   Defendant Failed to Show Strickland Prejudice

¶ 37   To show that a motion for a new trial would have succeeded,

  defendant had to show at the postconviction hearing that (1) the

  evidence — R.H.’s testimony about what the victim and the

  7 See also, e.g., Ingram v. Sec’y, Fla. Dep’t of Corr., 736 F. App’x 798,
  801 (11th Cir. 2018) (no deficient performance or prejudice where
  the defendant can’t show he would have been entitled to a new trial
  if his counsel had filed a motion); Weaver v. United States, 

, 864-65 (8th Cir. 2015) (the defendant wasn’t prejudiced by
  counsel’s failure to move for a new trial when evidence wasn’t newly
  discovered); Diaz v. United States, 298 F. App’x 858, 859-61 (11th
  Cir. 2008) (newly discovered impeachment evidence was insufficient
  to justify a new trial, so the defendant failed to show that there was
  a reasonable probability of a different result had her counsel filed a
  motion for a new trial); Jewson v. Crosby, No. 3:04CV71/MCR/MD,
  

, at *7-8 (N.D. Fla. Mar. 11, 2005) (unpublished
  report and recommendation) (declining the defendant’s request to
  presume prejudice where counsel failed to move for a new trial; loss
  of an evidentiary hearing on a motion for a new trial is not a
  forfeiture of an entire judicial proceeding), adopted as modified,
  

(N.D. Fla. June 16, 2005) (unpublished opinion),
  aff’d, 174 F. App’x 529 (11th Cir. 2006); State v. Batek, 

, 812 (Mo. Ct. App. 1982) (“The fact of untimely filing [for a
  motion for new trial], by itself, does not compel reversal; it is also
  essential that the defendant show some error by the trial court
  which could have resulted in a successful appeal, had the motion
  been filed on time.”).

                                     22
  grandmother had said to her — was discovered after trial; (2) he

  and his attorney were diligent in attempting to uncover it before

  trial; (3) the evidence would have been material and not merely

  cumulative or impeaching; and (4) the evidence probably would

  have resulted in an acquittal if presented at trial. 

; see Crim. P. 35(c)(2)(V). He failed to meet that burden.

¶ 38   Initially, we reject defendant’s argument that the

  postconviction court “implicitly” found all of these factors save

  whether he could have discovered the evidence through the exercise

  of reasonable diligence before trial. The court specifically said that

  it need not determine whether a motion would have been

  successful, and its order doesn’t include an express finding on any

  of the required elements. Nor, contrary to defendant’s assertion,

  does the record of the postconviction hearing establish all of the

  required elements.

¶ 39   First of all, defendant knew of R.H. before trial. Though he

  testified that he told his attorney about R.H. before trial, the

  postconviction court found him not credible on that point.

  Defendant’s failure to tell his attorney of a potential defense witness

  of which he was aware is, by itself, enough to defeat any newly


                                     23
  discovered evidence claim. Cf. People v. Gallegos, 

, 10,

  

, 231 (1974) (“Clearly, evidence within the defendant’s

  knowledge before trial does not constitute newly discovered

  evidence.”).

¶ 40   Second, the evidence that the victim asked R.H. “what would

  happen if I lied” may have been of some impeachment value, but

  not enough to be of “consequence to the outcome.” Farrar v. People,

  

, 707 (Colo. 2009) (The evidence “must be of sufficient

  consequence for reasons other than its ability to impeach, or cast

  doubt upon, the evidence already presented at trial. It must be

  consequential in the sense of being affirmatively probative of the

  defendant’s innocence, whether that is accomplished by helping to

  demonstrate that someone else probably committed the crime; that

  the defendant probably could not have committed the crime; or

  even that the crime was probably not committed at all.”) (citations

  omitted).

¶ 41   To the contrary, when R.H.’s testimony is read in context, it is

  more likely that the victim (if she said this at all) was wondering

  whether she should lie by saying defendant hadn’t assaulted her.

  On this issue, R.H. testified in full as follows:


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            And on the drive home one day we were talking
            about her dad. And the conversation got
            brought up that he was going to be going away
            to get some help. And I asked [the victim] — I
            said, well, why do you think your daddy needs
            help. And she said well because he did bad
            things to me. And I said are you sure. What
            kind of things did he do to you. And she said,
            well, just bad things, I don’t know, just bad
            things. And so then the conversation went on
            and at the end of the conversation she said,
            well, what would happen if I lied.

  R.H. questioned the victim’s stated desire to get “help” for her father

  and whether the victim was sure her father had done “bad things”

  to her. This could have been perceived by the victim as pressure

  not to testify against her father. All in all, the exchange was

  ambiguous.

¶ 42   Defendant doesn’t explain how R.H.’s testimony about the

  grandmother’s offer to pay R.H. to lie about having been assaulted

  by the grandmother’s husband would have been admissible.

  Because the grandmother didn’t testify, and because the

  grandmother’s statements to R.H. would have been offered for their

  truth, R.H.’s statements would have been inadmissible hearsay at

  trial. See CRE 801, 802. And because there was no evidence of any

  discussion between the victim and her grandmother about



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  defendant’s touching of the victim (or anything else) before the

  victim’s outcry, any assertion that the grandmother’s effort to enlist

  R.H. in a scheme to falsely accuse the grandmother’s husband

  raised the possibility that the grandmother had similarly attempted

  to influence the victim would have been utter speculation. It

  therefore wouldn’t have been relevant even if it wasn’t inadmissible

  hearsay. See CRE 401, 402 (irrelevant evidence is inadmissible).

¶ 43   In sum, we conclude that there isn’t a reasonable probability

  that defendant would have been granted a new trial had counsel

  brought the motion. It follows that defendant isn’t entitled to move

  for a new trial.

                            III.   Conclusion

¶ 44   We reverse the order and remand the case to the district court

  to reinstate defendant’s judgment of conviction and sentence.

       JUDGE ROMÁN and JUDGE ROTHENBERG concur.




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