     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
                                                                July 30, 2020

                               2020COA117

No. 17CA0999, People v. Thompson — Criminal Procedure —
Postconviction Remedies; Criminal Law — Content of
Application for DNA Testing

     A division of the court of appeals considers whether Crim. P.

35(c) authorizes postconviction DNA testing. The division concludes

that, while section 18-1-413(1), C.R.S. 2019 may entitle a defendant

to testing if he satisfies the statutory criteria, Crim. P. 35(c) does

not independently authorize such testing.
COLORADO COURT OF APPEALS                                      2020COA117


Court of Appeals No. 17CA0999
City and County of Denver District Court No. 93CR2979
Honorable Brian R. Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry Allen Thompson,

Defendant-Appellant.


                             ORDERS AFFIRMED

                                 Division III
                         Opinion by JUDGE BERGER
                        Furman and Grove, JJ., concur

                           Announced July 30, 2020


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1    In 1994, a jury found defendant, Larry Allen Thompson, guilty

 of first degree murder. Police discovered the victim in an alley

 wrapped in a blanket, mattress cover, and electrical cord. He had

 been stabbed more than forty times.

¶2    In this postconviction proceeding, Thompson’s second, he

 appeals the postconviction court’s order denying DNA testing of the

 blanket, mattress cover, electrical cord, and the victim’s clothes. He

 contends that the court erred in denying his requests for DNA

 testing under section 18-1-413, C.R.S. 2019, and Crim. P. 35(c).

 He also appeals the order denying his various ineffective assistance

 of counsel claims as to his trial counsel and his first postconviction

 counsel.

¶3    We hold, as a matter of first impression, that Crim. P. 35(c)

 does not authorize postconviction DNA testing. We further agree

 with the postconviction court that Thompson failed to satisfy the

 actual innocence standard under section 18-1-413, so he is not

 entitled to DNA testing under that statute. Finally, we conclude

 that the postconviction court properly denied his ineffective

 assistance of counsel claims. Accordingly, we affirm the

 postconviction court’s orders.


                                   1
             I.    Relevant Facts and Procedural History

                        A.    Evidence at Trial

¶4    The prosecution presented evidence that, although Thompson

 lived in Portland, Oregon, with his wife, he was in Denver, caring for

 his mother, at the time of the murder. Thompson stayed in the

 same apartment complex as the victim, and he and his brother

 regularly purchased crack cocaine from the victim. The victim’s

 girlfriend testified about animosity between Thompson and the

 victim over drug dealings.

¶5    Thompson confessed to four people that he murdered the

 victim, and all four testified at trial. One witness was Thompson’s

 wife. She testified that Thompson had told her that he and his

 brother were upset with the victim for selling them diluted crack

 cocaine, so they decided that the victim had “to die today.”

 Thompson also told her that his brother held the victim down while

 Thompson stabbed him, and that Thompson accidentally cut

 himself on his wrist during the altercation. Enraged by the cut,

 Thompson stabbed the victim “over and over.” Thompson and his




                                   2
 brother “rolled the victim up in something,” put the body in the

 brother’s van,1 and dumped him in an alley.

¶6    Another witness testified that Thompson told him that he had

 stabbed a drug dealer in Denver. Still another said that Thompson

 told him he had murdered someone. The fourth witness testified

 that Thompson told him that, while he was in Denver, he had killed

 the person who cut him on the wrist.

¶7    On the day that police discovered the victim’s body, Thompson

 went to a Denver hospital for treatment for a cut to his wrist. A

 doctor testified at trial that Thompson’s cut was consistent with a

 stab wound. Thompson testified differently; he said that the cut on

 his wrist came from a broken piece of glass.

¶8    The prosecution also presented scientific evidence to the jury

 to establish that the blood found on a carpet in the van likely came

 from the victim.




 1 At various points in the record, the vehicle used to transport the
 victim’s body is referred to as a truck and as a van. This distinction
 makes no difference to our analysis.

                                   3
                     B.   First Postconviction Proceeding

¶9     DNA testing conducted after Thompson’s trial revealed that

  the bloodstain in the van did not belong to the victim, contrary to

  the prosecution’s arguments and evidence at trial. After this came

  to light, Thompson’s first postconviction counsel moved for a new

  trial based on newly discovered evidence under Crim. P. 35(c)(2)(V).

  Thompson’s first postconviction counsel also asserted eight

  ineffective assistance of trial counsel claims. The first

  postconviction court denied the eight ineffective assistance claims

  after a hearing.

¶ 10   That postconviction court also concluded that the new DNA

  evidence was insufficient to warrant a new trial. The court

  reasoned that, although the newly discovered evidence was

  significant, when considered in combination with all the other

  evidence, it would not likely have resulted in an acquittal —

  particularly given Thompson’s four confessions. On that basis, the

  court concluded that Thompson’s argument was “too great a reach.”

¶ 11   For seven reasons, a division of this court affirmed the first

  postconviction court’s order:




                                      4
First, the evidence established that defendant
and the victim knew each other well and lived
“very close” to each other.

Second, they had a relationship pertinent to
the case: defendant regularly purchased drugs
from the victim. Indeed, defendant admitted
that he purchased drugs from the victim
during the time frame in which the murder
occurred.

Third, defendant had a motive to kill the
victim. The victim’s girlfriend testified that
there was animosity between defendant and
the victim because of problems arising out of
their drug transactions. . . .

Fourth, while living in Portland after the
murder, defendant admitted to his wife that he
had murdered the victim. Defendant’s wife
testified that defendant provided explicit
details about the killing, including how his
brother held the victim while defendant
stabbed the victim; how the victim struggled,
causing defendant to cut himself on the wrist;
how this cut enraged defendant and led him to
stab the victim “over and over”; and how they
disposed of the body.

....

Fifth, while living in Portland, defendant also
made admissions to three men about the
killing. . . .

Sixth, physical evidence corroborates this
testimony. On the same day that the police
found the victim’s body, shortly after the
victim was slain, defendant sought treatment
at Denver General Hospital for the cut on his

                        5
             wrist. This cut was consistent with the type of
             wound one might receive from a knife. . . .

             Seventh, the prosecution’s closing arguments
             focused on the testimony from defendant’s
             wife, the three men, and the cut on
             defendant’s wrist. The prosecutors mentioned
             the results of the tests on the carpet, but that
             evidence was used to corroborate defendant’s
             various admissions; it did not serve as the
             centerpiece of the prosecution’s case.

  People v. Thompson, slip op. at 9–11 (Colo. App. No. 06CA2270,

  Sept. 10, 2009) (not published pursuant to C.A.R. 35(f)).

  Ultimately, that division concluded that the blood stain evidence

  was “corroborative of, but not crucial to, defendant’s guilt.” Id. at

  11. The supreme court denied certiorari, and this court issued the

  mandate.

                 C.   Second Postconviction Proceeding

¶ 12   Years later, Thompson again moved for postconviction relief

  under Crim. P. 35(c)(2)(V) based on newly discovered evidence.2 He

  requested additional DNA testing of the victim’s clothing, the

  mattress cover, the blanket, and the extension cord, on the theory

  that there was a strong possibility that the actual perpetrator’s DNA



  2 There is no time bar on motions for postconviction relief from
  class 1 felony convictions. § 16-5-402(1), C.R.S. 2019.

                                     6
  was on those items, but that Thompson’s DNA was not. Later,

  Thompson moved for preservation of evidence and DNA testing

  under section 18-1-413.

¶ 13   The second postconviction court first denied Thompson’s

  motion for postconviction relief based on newly discovered evidence

  because it was premature.

¶ 14   Thompson again moved for a new trial based on newly

  discovered evidence, this time based on an expert opinion that the

  cut on his wrist was not caused by a knife but was instead caused

  by a piece of glass (as Thompson had testified at trial). Thompson

  also alleged that trial counsel was ineffective for failing to present

  such an expert opinion at trial, and that postconviction counsel was

  ineffective for failing to investigate this theory and for failing to raise

  this issue in the first postconviction motion.

¶ 15   The second postconviction court held a hearing on

  Thompson’s motion for DNA testing of various items that had not

  been previously tested. Experts hired by both Thompson and the

  prosecution testified about DNA testing and the possible results.

  The court denied Thompson’s motion in a thorough written order,

  concluding that Thompson failed to show that additional DNA


                                       7
  testing would prove his actual innocence, as required by section

  18-1-413.

¶ 16   The postconviction court held a separate hearing on

  Thompson’s newly discovered evidence and ineffective assistance of

  counsel claims regarding the wrist-laceration theory. The court

  denied Thompson’s newly discovered evidence claim because

  evidence regarding “the source of the scarring was available both at

  trial and at the prior 35(c) hearing” such that the wrist-laceration

  theory was “not ‘evidence that could not have been discovered

  previously through the exercise of due diligence’ as it was known

  and knowable at the time of trial.” Thompson does not appeal the

  denial of this newly discovered evidence claim.

¶ 17   The court also denied all of Thompson’s ineffective assistance

  of counsel claims pertaining to the wrist-laceration theory. The

  court reasoned that the claims pertaining to trial counsel were

  procedurally barred as successive because they could have been

  raised in the first postconviction motion. As to his first

  postconviction counsel’s claimed ineffectiveness, the court

  concluded that Thompson did not prove prejudice under Strickland

  v. Washington, 466 U.S. 668 (1984).


                                     8
                              II.   Analysis

               A.    Order Denying Additional DNA Testing

¶ 18   Thompson first contends that the postconviction court erred

  by denying his motion for additional DNA testing under section

  18-1-413.

              1.    We Have Jurisdiction to Review the Order

¶ 19   The Attorney General argues that this court does not have

  jurisdiction to review the order denying DNA testing because

  Thompson did not timely appeal it. We reject the Attorney

  General’s argument.

¶ 20   Jurisdiction is a question of law that we review de novo.

  People v. Vargas-Reyes, 2018 COA 181, ¶ 9. We lack jurisdiction to

  hear untimely appeals. People v. Baker, 104 P.3d 893, 895 (Colo.

  2005). “[I]n a criminal case the notice of appeal by a defendant

  shall be filed in the appellate court and an advisory copy served on

  the clerk of the trial court within 49 days after the entry of the

  judgment or order appealed from.” C.A.R. 4(b)(1).

¶ 21   It was unclear whether the postconviction court’s order

  denying additional DNA testing was a final order. Indeed, in a later

  order the postconviction court stated, “[t]he Court notes that


                                     9
  Defendant may appeal [the order denying DNA testing] once the

  pending 35(c) hearing is resolved.”3 Under these circumstances, we

  conclude that Thompson’s appeal is timely because the

  postconviction court entered an interlocutory order, not a final

  order.

¶ 22   Alternatively, even if the order denying DNA testing was a final

  appealable order, we conclude that we have jurisdiction to hear the

  appeal under the unusual circumstances doctrine. This doctrine

  “may apply if a party reasonably relies and acts upon an erroneous

  or misleading statement or ruling by a trial court regarding the time

  for filing post-trial motions.” Converse v. Zinke, 635 P.2d 882, 886

  (Colo. 1981). The postconviction court told counsel that he could

  appeal “once the pending 35(c) hearing is resolved”; any error in

  failing to timely appeal the order was made in reasonable reliance

  on the postconviction court’s statement.




  3The quoted language appears in the court’s order denying
  Thompson’s request to stay the court’s order on DNA testing.

                                   10
  2.   The Postconviction Court Correctly Denied Thompson’s Motion
                        for Additional DNA Testing

¶ 23   Thompson argues that additional DNA testing would

  demonstrate his actual innocence, and that the postconviction

  court erred by concluding otherwise.

¶ 24   Review of a postconviction motion for DNA testing presents a

  mixed question of fact and law. People v. Young, 2014 COA 169,

  ¶ 37. We review the postconviction court’s factual findings for clear

  error and the court’s legal conclusions de novo. Id.

¶ 25   Section 18-1-413(1) prohibits a court from ordering

  postconviction DNA testing “unless the petitioner demonstrates by a

  preponderance of the evidence that . . . [f]avorable results of the

  DNA testing will demonstrate the petitioner’s actual innocence.”4

  Actual innocence is “clear and convincing evidence such that no

  reasonable juror would have convicted the defendant.”

  § 18-1-411(1), C.R.S. 2019.

¶ 26   We agree with the postconviction court that the absence of

  Thompson’s DNA on the mattress pad, blanket, extension cord, and




  4 A petitioner must also demonstrate three other statutory elements
  that are not at issue in this appeal. § 18-1-413(1), C.R.S. 2019.

                                    11
  victim’s clothes would not constitute “clear and convincing evidence

  such that no reasonable juror would have convicted the defendant.”

  DNA testing of these items would not necessarily or logically rebut

  other strong evidence of Thompson’s guilt: (1) his confessions to

  four different people; (2) the fact that he lived in the same

  apartment complex as the victim and was in Denver at the time of

  the murder; (3) his acquaintance with the victim; (4) the fact that he

  had a motive, according to his wife and the victim’s girlfriend,

  because Thompson had received bad drugs from the victim; and (5)

  the cut on his wrist, for which he received treatment at a Denver

  hospital on the same day that police found the victim’s body.

¶ 27   Furthermore, the court credited the prosecution’s expert, who

  testified that Thompson’s DNA could “be missed due to overarching

  DNA evidence from the victim . . . and the ‘needle’ of locating bodily

  fluid of [Thompson] in a ‘haystack’ of the clearly overwhelming

  amount of bodily fluids on the crime scene.”

¶ 28   The court ruled that “[b]ecause so many factors can influence

  the outcome, the court cannot find by a preponderance of the

  evidence that a finding of the absence of [Thompson’s] DNA would

  demonstrate his actual innocence.” This factual finding and the


                                     12
  resulting legal conclusions are amply supported by the record and

  we cannot disturb them.

       3.     Thompson’s Other Arguments Regarding DNA Testing Fail

¶ 29        Thompson next argues that the court erred by requiring him

  to proceed exclusively under the DNA testing statute, sections

  18-1-411 to -416, C.R.S. 2019, instead of allowing him to claim an

  independent right to DNA testing under Crim. P. 35(c). We

  disagree.

¶ 30        The meaning of a court rule is a question of law that we review

  de novo. Mercantile Adjustment Bureau, L.L.C. v. Flood, 2012 CO

  38, ¶ 30.

¶ 31        It is unnecessary for us to decide whether sections 18-1-411

  to -416 constitute the exclusive basis on which a postconviction

  court can order DNA testing. The only other basis posited by

  Thompson for DNA testing is Crim. P. 35(c). So, we only need to

  decide whether Crim. P. 35(c) authorizes a DNA testing order. We

  hold that it does not.

¶ 32        The plain language of Crim. P. 35(c), promulgated by the

  supreme court, does not authorize discovery procedures, including

  DNA testing. Had the supreme court intended to allow such


                                       13
  discovery in connection with a Crim. P. 35(c) motion, it easily could

  have said so. It did not.

¶ 33   True, Crim. P. 35(c)(2)(V) permits a motion based on newly

  discovered evidence, but that section does not address or authorize

  the discovery of such evidence — DNA or otherwise. Rather, “[t]o

  succeed on a motion for a new trial [based on newly discovered

  evidence], the defendant should show that the evidence was

  discovered after the trial.” People v. Rodriguez, 914 P.2d 230, 292

  (Colo. 1996) (emphasis added) (quoting People v. Gutierrez, 622 P.2d

  547, 559 (Colo. 1981)). Simply put, Crim. P. 35(c) is not a discovery

  mechanism to find new evidence, but, rather, prescribes a

  procedure to present such evidence when it has been obtained

  through other sources.

¶ 34   In his notice of supplemental authority, Thompson cites

  Bresnahan v. District Court for the proposition that a Crim. P. 35(c)

  proceeding is controlled by criminal procedural rules with respect to

  any permitted discovery.5 164 Colo. 263, 434 P.2d 419 (1967).


  5Obviously, Bresnahan v. District Court, 164 Colo. 263, 434 P.2d
  419 (1967), decided more than fifty years ago, is not “new” authority
  within the meaning of C.A.R. 28(i). Nevertheless, because one of the


                                    14
  While that is true, Bresnahan does not entitle a defendant to any

  postconviction discovery under Crim. P. 35(c).

¶ 35   There, the Colorado Supreme Court addressed whether

  criminal or civil procedural rules applied to taking depositions in

  connection with a postconviction deposition. The court said, “[a]

  35(b) hearing is not a civil proceeding. Rather, it is but one phase

  of a criminal proceeding. Such being the case, then, the taking of

  any deposition to be used in a 35(b) hearing is governed by our

  Rules on Criminal Procedure . . . .”6 Id. at 268, 434 P.2d at 421.

  Thus, Bresnahan stands only for the proposition that if depositions

  are taken in a Crim. P. 35(c) proceeding, they must be taken in

  accordance with criminal, not civil, procedural rules. See id.

  Nothing in Bresnahan authorizes any particular discovery in

  postconviction proceedings, much less DNA testing.

¶ 36   Next, Thompson argues that the postconviction court erred by

  denying DNA testing because he needed it to prove Strickland



  judges on this division asked counsel at oral argument whether he
  had any supporting authority on this point, we exercise our
  discretion to address, and reject, Thompson’s reliance on that case.
  6 Many of the postconviction remedies now provided for in Crim. P.

  35(c) were previously found in Crim. P. 35(b). People v. Wiedemer,
  852 P.2d 424, 430 n.6 (Colo. 1993).

                                    15
  prejudice, and because his first postconviction counsel allegedly

  was ineffective for not requesting that testing. These arguments fail

  because, as stated previously, Crim. P. 35(c) does not provide an

  independent basis for DNA testing.

¶ 37   Lastly, Thompson argues that he is entitled to additional DNA

  testing because the prosecution allowed him to test the blood in the

  van during his first postconviction proceeding. But the fact that the

  prosecution previously stipulated to DNA testing of other evidence

  does not entitle Thompson to whatever additional DNA testing he

  now seeks.

¶ 38   Because Thompson failed to satisfy the statutory requirements

  for postconviction DNA testing, the second postconviction court

  properly denied his DNA testing request.

           B.    Order Denying Ineffective Assistance Claims

¶ 39   Thompson next contends that the postconviction court erred

  by denying his ineffective assistance of counsel claims as to both

  his trial counsel and his first postconviction counsel.




                                    16
       1.    The Ineffective Assistance Claim Regarding Trial Counsel is
                                      Successive

¶ 40        Thompson argues that his trial counsel provided ineffective

  assistance because he failed to investigate or to provide expert

  testimony regarding his wrist-laceration theory.

¶ 41        The postconviction court denied this claim because it was

  successive and thus barred under Crim. P. 35(c)(3)(VII).

¶ 42        We review de novo whether a postconviction claim is

  successive. People v. Taylor, 2018 COA 175, ¶ 8.

¶ 43        Crim. P. 35(c)(3)(VII) requires a court to “deny any claim that

  could have been presented in an appeal previously brought or

  postconviction proceeding previously brought.” Claims that could

  have been brought in a previous postconviction motion are barred

  because they are successive. Taylor, ¶ 20.

¶ 44        The postconviction court correctly denied Thompson’s claim

  that trial counsel was ineffective because Thompson could have

  raised this claim in his first postconviction motion. Thompson’s

  argument that this claim has never previously been litigated fails

  because it ignores the plain language of Crim. P. 35(c)(3)(VII), which

  bars claims that “could have been presented” in a previous



                                        17
  postconviction proceeding. And the fact that Thompson argues that

  his first postconviction counsel was ineffective for not arguing the

  ineffectiveness of trial counsel in this regard does not automatically

  revive the claim as to trial counsel.

¶ 45        Undeterred, Thompson argues that his first postconviction

  counsel’s ineffectiveness constituted a justifiable excuse or

  excusable neglect for not raising the ineffective assistance claim as

  to trial counsel earlier. But while Crim. P. 35(c)(3)(VII) contains five

  exceptions to the successiveness bar, justifiable excuse and

  excusable neglect are not among them. The cases cited by

  Thompson address the Crim. P. 35(c) motion time bar, which may

  be tolled by justifiable excuse or excusable neglect. See, e.g., People

  v. Chavez-Torres, 2016 COA 169M, ¶¶ 10–12, aff’d, 2019 CO 59.

  The time bar is not at issue here; therefore, the authorities relied on

  by Thompson are inapposite.

       2.    The Ineffective Assistance Claims Regarding Postconviction
                              Counsel Fail on the Merits

¶ 46        Thompson next argues that his first postconviction counsel

  provided ineffective assistance of counsel because she (1) failed to

  investigate or to procure expert testimony about the wrist-laceration



                                       18
  theory and (2) failed to request additional DNA testing of objects

  associated with the murder.

¶ 47   As to the first claim, the postconviction court reasoned that

  Thompson did not establish prejudice because Thompson argued

  the wrist-laceration theory at trial (albeit not through expert

  testimony), and the prosecution challenged the legitimacy of the

  wrist-laceration theory through an expert who called it “junk

  science.” The court ultimately concluded,

             [T]he Court cannot find that [Thompson] has
             demonstrated that [expert testimony on the
             wrist-laceration theory] would have caused a
             different result. Judge Stern clearly
             determined that a new piece of exculpatory
             evidence was not sufficient to tip the balance
             in [Thompson’s] favor at trial. It is evident that
             the addition of evidence with limited value
             would [not] have overcome the “great reach” he
             alluded to and change the outcome resulting
             in a new trial.

¶ 48   As to the second claim, the court concluded that Thompson

  “didn’t present sufficient evidence for the court’s consideration that

  post-conviction counsel erred in not requesting further DNA testing

  of objects associated with the murder . . . .”

¶ 49   “A claim of ineffective assistance of counsel presents a mixed

  question of law and fact.” People v. Stovall, 2012 COA 7M, ¶ 18.


                                    19
  We review de novo the postconviction court’s legal conclusions but

  defer to its factual findings when they are supported by the record.

  Id.

¶ 50    A defendant bears the burden to prove his postconviction

  claims by a preponderance of the evidence. People v. Naranjo, 840

  P.2d 319, 325 (Colo. 1992). To prevail on a claim of ineffective

  assistance, a defendant must show that (1) counsel performed

  deficiently and (2) prejudice resulted from the deficient

  performance. Strickland, 466 U.S. at 686; Carmichael v. People,

  206 P.3d 800, 805–06 (Colo. 2009). “[T]he failure to establish one

  prong of the two-part test defeats a claim for ineffective assistance.”

  People in Interest of S.L., 2017 COA 160, ¶ 60. The Strickland

  standard applies “for evaluating the effectiveness of post-conviction

  counsel.” Silva v. People, 156 P.3d 1164, 1169 (Colo. 2007).

¶ 51    To prove prejudice, a defendant must show that there is a

  reasonable probability that, but for counsel’s deficient performance,

  the result of the proceeding would have been different. Dunlap v.

  People, 173 P.3d 1054, 1063 (Colo. 2007). “A reasonable

  probability is a probability sufficient to undermine confidence in the

  outcome.” Strickland, 466 U.S. at 694.


                                    20
¶ 52   We reject Thompson’s argument that the postconviction court

  applied the wrong standard for evaluating prejudice. The court

  correctly noted that Thompson had the burden to prove his

  postconviction claims by a preponderance of the evidence. Then,

  the court correctly applied the reasonable probability standard for

  determining whether Thompson demonstrated prejudice. But the

  court concluded that “the outcome [of the prior proceeding] would

  not have been different.”

¶ 53   Like the postconviction court, we reject both of Thompson’s

  ineffective assistance claims regarding his postconviction counsel

  because he has not demonstrated prejudice.

¶ 54   Thompson has not demonstrated that expert testimony on the

  wrist-laceration theory would have changed the result of the first

  postconviction proceeding. First, there is evidence in the record

  supporting the postconviction court’s conclusion that the wrist-

  laceration theory was “evidence with limited value,” including the

  fact that the prosecution’s expert called the theory “junk science.”

  Second, as the second postconviction court found (and as the first

  postconviction court found, and a division of this court determined),




                                    21
  there was other strong evidence of Thompson’s guilt, including the

  four witnesses’ testimony about Thompson’s confessions.

¶ 55   Thompson also failed to demonstrate that the result of the

  prior proceeding would have been different had counsel requested

  additional DNA testing.7 Such an argument is inherently

  speculative because the testing has not been performed. “When the

  evidence only provides speculative proof of prejudice,” a defendant’s

  ineffective assistance claim fails. People v. Finney, 2012 COA 38,

  ¶ 66, aff’d, 2014 CO 38.

                             III.   Conclusion

¶ 56   The orders are affirmed.

       JUDGE FURMAN and JUDGE GROVE concur.


  7 The Attorney General contends that Thompson’s claim regarding
  DNA testing fails because he did not present any evidence about it
  at the hearing. This appears to be the basis on which the trial
  court denied the claim, as it reasoned that Thompson “didn’t
  present sufficient evidence for the court’s consideration . . . .” But
  the prosecutor at the Crim. P. 35(c) hearing stipulated that
  Thompson’s expert’s testimony and affidavit from the hearing on
  DNA testing could be incorporated into the record of the Crim. P.
  35(c) hearing, and that the testimony and affidavit addressed this
  argument. That being the case, we resolve this argument on
  Thompson’s deficient evidence of prejudice. We may affirm a
  district court’s judgment on any ground supported by the record,
  even if the district court did not raise or address that ground.
  People v. Scott, 116 P.3d 1231, 1233 (Colo. App. 2004).

                                     22
