By Tillman Clark, Colorado criminal appeals and postconviction attorney. Last reviewed October 2026.
Ineffective assistance of counsel means the defense lawyer made a mistake a competent lawyer wouldn't have made, and there is a real chance the outcome would have been different without it. Both have to be proved. In Colorado, these claims are usually raised in a Rule 35(c) motion in the trial court after the appeal, where the judge can hear evidence.
What does "ineffective assistance of counsel" mean?
Every person charged with a crime has the right to a competent lawyer. The U.S. Supreme Court set the test in Strickland v. Washington (1984), and it has two parts. First, the lawyer's performance fell below what a competent lawyer would do. Second, there is a reasonable probability the result would have been different. A bad mistake that didn't affect the outcome isn't enough, and neither is a bad outcome without a real mistake.
Which mistakes actually matter?
Three come up again and again, and they win:
Failing to object to highly prejudicial evidence the jury should never have heard.
Failing to investigate: not interviewing witnesses, or not consulting an expert in a complex case.
Failing to properly explain a plea offer, which leads someone to take a deal when they should have gone to trial, or go to trial when they should have taken the deal.
Here is a case I've won that shows what that looks like. Prior results do not guarantee a similar outcome.
Bad plea advice. My client was charged with several minor crimes and offered a plea to those. He asked his lawyer whether the prosecution could add more serious charges if he turned it down. She said no. She was wrong. He rejected the offer, the prosecution added much more serious charges weeks later, and he lost at trial and went to prison. The court found the lawyer ineffective, threw out the serious convictions, and reinstated the original plea offer.
Which complaints don't win?
The complaints I hear most are usually different from the ones that win. Families often feel the lawyer didn't do enough: didn't argue hard enough, wasn't aggressive, didn't tell the judge everything. Many also believe the case turned on a witness lying, and that pointing out the lie would have ended the case.
I don't dismiss those complaints. I dig under them. "He didn't fight hard enough" sometimes turns out to mean "he never talked to the one witness who could have helped," and that can be a real claim. My job is to guide families from the frustration to the issue that can actually win.
Why isn't this part of the appeal?
A direct appeal is decided only on the trial record. An ineffective-assistance claim usually needs evidence that isn't in the transcript: what the lawyer knew, why they made the choices they made, what a missing witness would have said. Colorado courts have said these claims belong in a postconviction proceeding, where that evidence can come in.
The trial lawyer also can't raise the claim, because they are the one being accused. It rarely happens, and courts usually turn it down.
What happens at the hearing?
Think of it as a mini-trial, like a malpractice case where the lawyer is the one accused. A judge decides; there's no jury. It's often the same judge from the original case.
The trial lawyer testifies, usually as the key witness, about what they did, what they didn't do, and why. Raising the claim waives attorney-client privilege on those topics, so private conversations come out. The prosecutor ends up defending the trial lawyer's work, because that's how they protect the conviction. Other witnesses may include the defendant, an expert on what a competent lawyer would have done, and any witness the trial lawyer never called.
The hearing usually takes a day or two. The judge often rules weeks or months later, and getting to a hearing frequently takes a year or more after filing.
How long do we have?
For most felonies, three years. For misdemeanors, 18 months. For class 1 felonies, there is no deadline. If there was an appeal, the clock starts when the appeal ends. If there wasn't, it starts at sentencing. Narrow exceptions exist for late filings, and an illegal sentence can be challenged at any time.
You generally get one Rule 35(c) motion, so it should be complete. The mistake I see most is families hearing "the appeal comes first" and assuming the 35(c) can wait. Then the appeal ends, a year slips by, and witnesses are gone or can't remember.
What does winning actually mean?
This is the hardest conversation I have with people. In most cases, winning means a new trial, not walking out the door. A new trial means going through it all again, and the person could be convicted again. If the conviction came from a plea deal, undoing it can bring back the charges that were dropped as part of that deal. Before we file, I walk the family through the realistic best case and the risks, and then they decide.
A strong petition can also create leverage. Sometimes the prosecution would rather negotiate than retry the case. On my Results page, you'll find a 48-year sentence reduced to 30 after a petition showing that both trial and appellate counsel were ineffective, resolved by negotiation, and a felony kidnapping conviction vacated on a supplemental 35(c) petition, with the client released on a time-served misdemeanor. Prior results do not guarantee a similar outcome.
Can we sue the lawyer instead?
A malpractice lawsuit doesn't undo a conviction. Only a court ruling on the conviction itself can do that.
What should we do now?
Do:
Write down what you think went wrong, while it's fresh.
Save every communication with the lawyer: emails, texts, letters and notes from calls.
Note the dates of visits and calls, especially anything said about plea offers.
List every witness the lawyer never contacted, with contact information and what they'd say.
Ask the trial lawyer for the client's file now, while it's easy to get.
Don't:
Post about the case online.
Contact witnesses or the alleged victim to "fix" anything.
Discuss the case on recorded jail calls.
File a rushed, bare-bones petition just to get something on file. The court can deny it without a hearing, and that can cost the one real shot. The exception is a close deadline: filing on time beats everything.
How I handle these cases
I'm a solo Colorado lawyer, and appeals and postconviction cases are all I do. I spent seven years as a trial lawyer before that. I personally handle every case: I read every page of the record and write every brief myself. In the first conversation, I'll tell you the weaknesses in the case, not just the strengths.
When a family tells me the lawyer didn't do their job, I ask two things first: when the case ended, because the deadline depends on it, and what they think would have changed the outcome. It's rare that I turn someone down. Inside the deadline, I rarely find nothing worth raising.
Common questions
What qualifies as ineffective assistance of counsel in Colorado?
A mistake a competent lawyer wouldn't have made, plus a reasonable probability that the outcome would have been different without it. Both are required.
Can you raise ineffective assistance on direct appeal?
Usually not. The claim needs evidence outside the trial record, so in Colorado it's normally raised in a Rule 35(c) motion after the appeal.
How long do you have to file a 35(c) in Colorado?
Three years for most felonies, 18 months for misdemeanors, and no limit for class 1 felonies. The clock starts when the appeal ends, or at sentencing if there was no appeal.
Learn more: ineffective assistance of trial or appellate counsel, Rule 35(c) proceedings, and criminal appeals.
Talk with Tillman
Consultations are free, and you will speak with me, not with staff. Call 720-507-5814 or send me a message.
This page is general information about Colorado criminal procedure and is not legal advice about any particular case. Rules, statutes and deadlines change; confirm current requirements with a lawyer about your specific situation. Attorney advertising. Prior results do not guarantee a similar outcome.
