Background
Fredric Dryer led Mile High Capital Group, a real-estate investment company that offered promissory notes, deposits on undeveloped duplexes, and land-banking programs. After the company entered receivership and bankruptcy, a grand jury charged Dryer with theft, securities fraud, conspiracy, and violating the Colorado Organized Crime Control Act.
A jury convicted Dryer on twenty-seven theft counts, thirteen securities-fraud counts, two conspiracy counts, and one COCCA count. His original 132-year sentence was reduced to 84 years after an earlier appeal required merger of theft counts for sentencing. Governor Jared Polis commuted Dryer’s sentence in 2020, but Dryer continued pursuing a Crim. P. 35(c) challenge to his convictions.
The Court’s Holding
The Colorado Court of Appeals affirmed the postconviction court’s denial of relief. It held that the court did not abuse its discretion by refusing to let postconviction counsel withdraw on the day of the evidentiary hearing. Dryer did not establish either objectively deficient postconviction representation or prejudice—meaning a reasonable probability that the court would have ordered a new trial absent counsel’s alleged shortcomings.
The court also rejected Dryer’s claim that later decisions concerning the “family resemblance” test for securities transformed his already-resolved jury-instruction claim. His direct appeal had assumed an instructional error but found it constitutionally harmless, and the later authorities likewise permit harmless-error review. Dryer also failed to prove that trial counsel had an actual financial conflict affecting representation or that alleged failures to investigate, organize records, or retrieve emails prejudiced his defense.
Key Takeaways
- A lawyer’s assertion of being unprepared or conflicted does not itself establish constitutionally ineffective assistance.
- A claim resolved on direct appeal generally cannot be relitigated through postconviction proceedings absent a qualifying new, retroactive constitutional rule.
- To establish an actual conflict, a defendant must connect the conflict to a viable alternative defense strategy that counsel failed to pursue.
Why It Matters
The decision reinforces the demanding showing required for Colorado postconviction relief based on counsel’s performance. Allegations of inadequate preparation or financial pressure must be tied to concrete prejudice or an adverse effect on a plausible defense strategy.
It also confirms that a defendant cannot evade the bar on successive claims by recasting an issue already decided on direct appeal as a later change in law when the earlier appeal applied the same harmless-error framework.