Background
Kevin Ratter Peterson pleaded guilty under an agreement to enticement of a child and sexual assault on a child. The agreement resulted in dismissal of the remaining charges, including kidnapping, sexual exploitation of a child, and crime-of-violence sentence enhancers. The district court imposed concurrent indeterminate sentences of eight years to life and six years to life.
Peterson later filed a pro se Crim. P. 35(c) motion to withdraw his plea. He alleged that plea counsel was ineffective for not consulting a sexual-assault-nurse-examiner expert and that he was misadvised that the prosecution did not need to prove he knew the victim was under fifteen. The postconviction court denied the motion without a hearing or referral to the Public Defender.
The Court’s Holding
The Colorado Court of Appeals affirmed. Peterson’s proposed expert claim was speculative: he did not identify an expert or allege facts supporting his assertion that an expert would attribute the victim’s injuries to another cause or consensual sex. The record also showed that counsel obtained the SANE report, discussed retaining an expert with Peterson, and made a strategic decision not to pursue further investigation. Independently, the victim’s report of significant pain supported bodily injury.
The court also held that Peterson was correctly advised about the law. Under binding Colorado precedent, sexual assault on a child and enticement of a child are strict-liability offenses as to the victim’s age; a defendant’s belief that the victim was fifteen or older is irrelevant. Even assuming Peterson could make an arguable argument for extending People v. Ross, counsel was not deficient for following existing precedent. Because none of the claims had arguable merit, summary denial was proper and no referral to the Public Defender was required.
Key Takeaways
- A Crim. P. 35(c) claim based on an unretained expert cannot rest on unsupported speculation about what the expert might say.
- Colorado precedent treats the victim’s age as a strict-liability element for sexual assault on a child and enticement of a child.
- A court need not appoint or refer a pro se postconviction motion to the Public Defender when it properly summarily denies all claims as meritless.
Why It Matters
The decision reinforces the pleading threshold for postconviction ineffective-assistance claims: a defendant must allege concrete facts that could establish deficient performance and relief, not merely a possibility that additional investigation might have helped.
It also confirms that counsel may reasonably rely on controlling precedent when advising a client during plea negotiations, even if the defendant later urges a novel extension of a separate Supreme Court decision.