v. Sharp, 2019 COA 133

Harley David Sharp was convicted by a jury of multiple counts of sexual assault on his daughter (charged 2008–2010) based on the victim’s testimony and the victim’s mother’s testimony; SANE exam showed no physical trauma but she testified that absence of trauma is common.
After conviction, at sentencing a witness (R.H.) told defense investigator that the victim once asked “what would happen if I lied?” and that the victim’s grandmother had once offered to pay R.H. to make false accusations against a different man.
Defense counsel did not investigate a 2007–2008 hospital examination Sharp said he had taken the victim to, nor move for a new trial based on R.H.’s post‑trial information.
Sharp filed a Crim. P. 35(c) postconviction motion alleging (1) newly discovered evidence and (2) ineffective assistance of trial counsel for failure to investigate and failure to move for a new trial.
The postconviction court granted relief: it vacated the convictions based on failure to investigate the hospital visit and allowed Sharp to file a new‑trial motion for counsel’s failure to do so; the People appealed.
The Court of Appeals reversed, holding Sharp failed to prove Strickland prejudice from the alleged failures and that prejudice is required where counsel fails to move for a new trial (i.e., loss of opportunity to move for a new trial is not a forfeiture of an entire proceeding requiring presumed prejudice).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to investigate and present evidence of a 2007–2008 hospital exam was prejudicial under Strickland	People: No prejudice; SANE testimony and other evidence made the hospital exam unlikely to change the verdict	Sharp: Hospital exam would have undermined victim/grandmother credibility and materially affected outcome	Court: No reasonable probability result would differ; absence of trauma was consistent with charged conduct and timing/minimal overlap diminished relevance; no Strickland prejudice shown
Whether counsel’s failure to move for a new trial after R.H. came forward requires presumed prejudice	People: Must show Strickland prejudice — reasonable probability a new‑trial motion would have been granted	Sharp/postconviction court: Loss of the opportunity to seek a new trial is like loss of an appeal and warrants presumed prejudice	Court: Rejects presumption; failure to move for a new trial is a failure within the trial proceeding and requires proof that a motion would likely have succeeded (Strickland prejudice) — Sharp failed to make that showing

Strickland v. Washington, 466 U.S. 668 (establishes performance and prejudice test for ineffective assistance)
United States v. Cronic, 466 U.S. 648 (circumstances where prejudice may be presumed for denial of counsel or entire proceeding)
Roe v. Flores‑Ortega, 528 U.S. 470 (addressing prejudice when counsel fails to perfect an appeal)
Kimmelman v. Morrison, 477 U.S. 365 (prejudice required for failure to file a suppression motion — show motion would have been granted and likely different result)
Robbins v. Oklahoma, 528 U.S. 259 (relief for appellate counsel failures generally requires showing actual prejudice)
People v. Valdez, 178 P.3d 1269 (Colo. App.) (forfeiture of a Rule 35(c) proceeding can remove need to show Strickland prejudice when entire proceeding is lost)
People v. Gutierrez, 622 P.2d 547 (Colo.) (elements for a Crim. P. 33 new‑trial motion based on newly discovered evidence)