September 24, 2017

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Crim. P. 35 Requires Court to Allow Public Defender’s Office to Respond to Motion Requesting Counsel

The Colorado Court of Appeals issued its opinion in People v. Higgins on Thursday, May 4, 2017.

Crim. P. 35(c)—Notice—Public Defender.

Higgins pleaded guilty to felony menacing, and the court sentenced him to 18 months in prison. Higgins thereafter filed a Crim. P. 35(c) motion and requested counsel to represent him on his motion. The district court sent a copy of Higgins’s motion to the prosecution and, after receiving the prosecution’s response, denied the motion without a hearing and without hearing from the public defender’s office.

On appeal, Higgins contended that the district court erred by departing from the procedure outlined in Crim. P. 35(c)(3)(IV) and (V) and that the court’s error required reversal. The court has the authority to summarily deny a Crim. P. 35(c) motion without a hearing if the motion, files, and the record clearly show the defendant is not entitled to relief. However, if the court does not summarily deny the motion, the court is required to send a copy of the motion to the prosecutor and, if defendant has requested counsel, to the public defender’s office, who are given an opportunity to respond to the motion. Here, the court failed to send a copy of the motion to the public defender’s office. Thus, the court erred by departing from the Crim. P. 35(c)(3)(IV) and (V) mandatory procedure. The error was not harmless because it affected the fairness of the proceedings.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Denial of Crim. P. 35 Motion Without Hearing was In Error

The Colorado Court of Appeals issued its opinion in People v. Smith on Thursday, January 27, 2017.

Crim. P. 35(c)Post-Conviction ReliefPlea AgreementIneffective Assistance of CounselHearing—Sentencing.

Smith was charged with three sexual offenses. As the result of an unwritten plea agreement, Smith pleaded guilty to added counts of first degree assault with a deadly weapon and attempted sexual assault on a child by a person in a position of trust. The original charges were dismissed, and Smith was sentenced to a determinate 28-year term in the custody of the Department of Corrections.

Acting pro se, Smith timely moved for post-conviction relief under Crim. P. 35(c). The district court appointed counsel to expound on Smith’s claims in a supplemental motion. The court sought and received a response from the prosecution, which attached a report authored by the prosecution’s investigator. Smith filed a reply that did not specifically challenge the investigator’s report but rather identified contested issues of fact and requested an evidentiary hearing. In a written order, the district court denied Smith’s motion without holding a hearing.

On appeal, Smith contended that the district court erred in denying his motion without a hearing because he asserted sufficient facts to support his claim that plea counsel was ineffective. Under certain circumstances, a trial court may deny a post-conviction motion without conducting an evidentiary hearing if the motion, the files, and the record show the defendant is not entitled to relief, and where the court refers the matter for additional briefing, as it did here, it may enter a ruling based on the pleadings if it finds it appropriate to do so. Here, the district court relied, in part, on the report authored by the prosecution’s investigator in determining that Smith was not entitled to relief. Because the attachment was not part of the file and record of the case, and did not qualify as a pleading, the district court’s reliance on that document was error. It was also error for the court to rely on Smith’s plea colloquy in denying his claims related to that phase of the proceedings because Smith alleged sufficient facts to warrant a hearing on his claim of ineffective assistance related to his plea.

Smith also claimed ineffective assistance of counsel at his sentencing. The Colorado Court of Appeals determined that this claim was conclusory, vague, and lacking in detail, and that it failed to adequately allege the required prejudice.

The district court’s order on Smith’s claim of ineffective assistance of counsel at sentencing was affirmed. The district court’s order on Smith’s claim of ineffective assistance of counsel related to his plea was reversed and the case was remanded for a hearing solely on that claim.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Did Not Err in Summarily Denying Defendant’s Petition for Postconviction Relief

The Colorado Court of Appeals issued its opinion in People v. Phipps on Thursday, December 30, 2016.

Sexual Assault on a Child—Ineffective Assistance of Counsel.

Police discovered child pornography on Phipps’s computer by using LimeWire, a peer-to-peer file sharing application. Phipps pleaded guilty to sexual assault on a child and was sentenced to an indeterminate prison term of 17 years to life. He sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Phipps asserted that the district court was required to hold a hearing on his motion and erred in rejecting his claims of ineffective assistance of counsel. A district court may deny a post-conviction motion without a hearing where allegations are bare and conclusory, directly refuted by the record, or, even if proven true, would fail to establish one of the prongs of the Strickland test to determine whether there has been ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must establish that (1) counsel’s performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. To satisfy the prejudice prong, a defendant must show that there is a reasonable probability that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Phipps argued that his counsel should have challenged the validity of the initial, remote search of his computer. Phipps claimed that he did not know that the files stored on his computer were publicly accessible through LimeWire. Consistent with other courts that have considered the matter, the Colorado Court of Appeals held that Phipps had no reasonable expectation of privacy in the files he made available for public viewing through LimeWire. Thus his counsel’s failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.

Phipps also argued that his counsel was ineffective when he waived the preliminary hearing. This decision was a matter of strategy. In addition, the evidence of Phipps’s guilt was overwhelming. The waiver of the preliminary hearing could not have constituted ineffective assistance of counsel.

Phipps further argued that his counsel failed to investigate several aspects of his case. Even if this claim were true, it fails the prejudice test. Phipps admitted to possessing child pornography on his computer and he produced a video of him sexually assaulting his underage stepdaughter.

Phipps next contended that his counsel misadvised or failed to advise him of the consequences of his guilty plea. The court carefully examined each of Phipps’s contentions in this regard and found them all without merit.

Lastly, Phipps argued that the district court “redacted” his Crim. P. 35(c) motion and the transcript of his sentencing hearing was falsified. The court found no evidence to support these arguments.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Potential Conflict of Interest Relevant in Determination of Prejudice to Defendant

The Colorado Court of Appeals issued its opinion in People v. Villanueva on Thursday, May 5, 2016.

Benjamin Garcia-Diaz’s wife called the police for a domestic violence incident, and authorized a search of the residence. Police found $30,000 worth of cocaine during the search. Garcia-Diaz retained Charles Elliot to defend the domestic violence charges, and although the prosecution moved to add drug charges, the motion was still pending when Garcia-Diaz disappeared in March 2005. His body was found in September 2005, and Martin Villanueva was arrested for the murder.

Villanueva retained Elliot, who had represented him in the past. Elliot advised Villanueva that the prosecution might seek to disqualify him because of his prior representation with Garcia-Diaz, and later Elliot entered into an agreement with the prosecution where neither party would mention his prior representation of Garcia-Diaz. The trial court was never told about the conflict of interest.

At trial in 2006, the prosecution’s theory of the case was that Garcia-Diaz was about to enter into an agreement with the prosecution and would have laid the blame on Villanueva, his supplier, so Villanueva shot him at a crucial time. In fact, as Elliot knew, Garcia-Diaz had not negotiated at all with the prosecution and was not preparing to blame Villanueva, but because of his agreement Elliot could not rebut the prosecution’s theory.

Villanueva was eventually convicted and sentenced to life in prison without the possibility of parole. His conviction was affirmed on direct appeal. He then filed a Crim. P. 35(c) motion alleging that Elliot’s performance was deficient because he had a conflict of interest that adversely affected his trial performance. The district court denied the postconviction motion.

On appeal, the court of appeals evaluated Villanueva’s claims under the framework set forth in West v. People, 2015 CO 5, which clarified the correct standard for evaluating conflict of interest claims. Under West, to show an adverse effect from a conflict of interest, the defendant must identify a plausible defense or strategy, show that the alternative strategy was objectively reasonable, and establish that counsel’s failure to pursue the alternative strategy was linked to the conflict. Villanueva contended that Elliot was ineffective for failing to rebut the prosecution’s theory of the case. The trial court determined that because Villanueva showed only a potential conflict, not an actual conflict, his argument failed. However, under West, Villanueva needed only to show a potential conflict.

The court of appeals remanded for the district court to consider whether Elliot’s duties to Garcia-Diaz were inherently in conflict with Villanueva’s suggested alternative strategy of rebutting the prosecution’s evidence regarding whether Garcia-Diaz was about to snitch on Villanueva.

Colorado Court of Appeals: Underrepresentation of Asian Americans in Jury Pool Not Constitutionally Significant

The Colorado Court of Appeals issued its opinion in People v. Luong on Thursday, February 11, 2016.

Man Hao Luong was convicted of several crimes based on acts occurring in 2005 and was sentenced to 96 years imprisonment. On direct appeal, the court of appeals affirmed in part, reversed in part, and remanded, and on remand his sentence was reduced to 64 years. Luong then filed a Crim. P. 35(c) motion for postconviction relief, arguing his counsel was ineffective because he had not investigated the underrepresentation of Asian Americans in the jury pool at Luong’s trial. The postconviction court denied his motion and Luong appealed.

Luong’s original trial took place in Jefferson County, where Asian Americans comprise 2.63% of the population. Of the 100 member jury pool at Luong’s trial, none were Asian American. Luong argued his counsel should have investigated whether jurors of Asian descent were systematically or intentionally underrepresented in his jury as well as other juries in the county. Luong also asserted that the state’s destruction of the master jury list (jury wheel) and jury panel violated his constitutional rights because the destruction prevented him from proving his counsel’s performance prejudiced him. After he filed his appeal but before the court of appeals issued its opinion, the state court administrator informed Luong that the records of the jury wheel and jury panel had been found, and provided a list of the 324 people who reported for jury service on the date of Luong’s trial. Luong moved to remand for reconsideration of that information, but the court of appeals denied his motion.

On appeal, the court of appeals first noted that to establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment, the defendant must prove (1) the excluded group is distinctive, (2) the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. The court of appeals, acknowledging that Asian Americans are a distinctive group, evaluated whether the representation of Asian Americans in the jury pool was fair and reasonable in relation to the population within the community. The court noted that implicit in Luong’s argument was a presumption that his counsel should have known the percentage of Asians in Jefferson County and been surprised that there were not at least two people of Asian descent in the 100-person jury pool. The court initially noted that counsel’s performance was not grossly incompetent and a hearing on the Crim. P. 35 motion was unnecessary. Next, using statistical analyses, the court found no constitutional violation from having a 100-person jury pool with no Asian Americans. Because the population of Asians in Jefferson County was small, the absolute impact of the absence of Asians on the jury pool was insignificant.

The court of appeals affirmed the denial of Luong’s Crim. P. 35 motion for postconviction relief.

 

Colorado Court of Appeals: Defendant Entitled to Hearing Under Crim. P. 35 if Facts Alleged Would Provide Basis for Relief

The Colorado Court of Appeals issued its opinion in People v. Morones-Quinonez on Thursday, November 5, 2015.

Ineffective Assistance of Counsel—Advising of Immigration Consequences.

Defendant was charged with one count of criminal possession of a forged instrument and one count of criminal impersonation after officers conducting a traffic stop discovered a false identification card in her possession. She hired a lawyer whose practice focused on immigration and criminal law to represent her in both the criminal case and the removal proceedings that had been subsequently initiated.

Defendant alleged in her Crim.P. 35(c) motion that she was adamantly opposed to accepting any plea offer that would make her ineligible for relief from deportation. Her lawyer recommended she plead guilty to criminal impersonation, assuring her that she would be “just fine” in immigration court because it was “minor felony” and would not affect her immigration case. Defendant pleaded guilty to criminal impersonation and was later order deported by an immigration law judge. She filed this Crim.P. 35(c) motion, alleging ineffective assistance of counsel. She contended that if she had been properly advised, she would have rejected the plea and proceeded to trial. The district court denied the motion without a hearing.

Defendant was entitled to a hearing so long as she asserted facts in her post-conviction motion that, if true, would provide a basis for relief. Applying the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court of Appeals examined whether defendant showed that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that counsel’s deficient performance prejudiced the defendant.

The Court found that defendant had sufficiently pleaded deficient performance by her counsel. The Court disagreed that the district court could find as a matter of law that defendant’s allegation of prejudice was insufficient. It also found that the district court’s advisement did not cure any potential prejudice from the lawyer’s advice. Accordingly, the order was reversed and the case was remanded for an evidentiary hearing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retrospective Competency Evaluation Showed Defendant’s Plea Knowing, Intelligent, and Voluntary

The Colorado Court of Appeals issued its opinion in People v. Pendleton on Thursday, October 22, 2015.

Retrospective Competency Determination—Ineffective Assistance of Counsel.

Defendant gave birth in a public restroom and discarded her newborn son in the trash, where he was later found dead. In exchange for accepting a plea to the child abuse charge, the prosecution dismissed the murder charge and agreed to a sentencing range of between 16 and 40 years in prison. The trial court accepted the agreement and sentenced defendant to 40 years in prison. Almost three years later, defendant filed a motion for post-conviction relief under Crim.P.35(c), seeking to withdraw her plea. The motion was denied.

On appeal, defendant claimed that the post-conviction court erred when it retrospectively determined that she was competent at the time she entered her guilty plea. The Court of Appeals disagreed, finding that (1) the nature of defendant’s post-conviction claims made it necessary for the post-conviction court to evaluate defendant’s competency at the time of her plea; (2) the court had enough information to make a retrospective competency determination; and (3) the record supported the finding that defendant was competent. The Court also rejected defendant’s argument that her guilty plea was not knowing, voluntary, and intelligent, because this claim hinged on defendant’s contention that she was not competent when she entered her plea.

Defendant also argued that the post-conviction court erred when it denied her motion for post-conviction relief on the ground that her plea counsel was ineffective. Defendant’s claim failed because she did not show both deficient performance and prejudice. Counsel’s advice to defendant to abandon her insanity defense in favor of the plea offer, as well as decisions counsel made regarding investigation of the case and defenses, did not fall outside the wide range of reasonable professional assistance. Further, counsel argued effectively on defendant’s behalf at the sentencing hearing. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Appeals Court Must Assume Omitted Trial Transcripts Would Support Lower Court’s Order

The Colorado Court of Appeals issued its opinion in People v. Duran on Thursday, October 8, 2015.

Adequate Record on Appeal—Trial Transcripts—Ineffective Assistance of Counsel.

Duran was convicted of kidnapping, sexual assault, menacing, stalking, and violation of a protective order. He filed a post-conviction motion, arguing that he had received ineffective assistance of trial and appellate counsel. The motion was denied without a hearing. Duran then filed a timely notice of appeal but did not include transcripts in the appellate record.

The People argued that because the trial transcripts were not included in the appellate record, the Court of Appeals must assume they would support the trial court’s order and affirm. To prove ineffective assistance of counsel, Duran needed to show that counsel’s performance was deficient and that he was prejudiced by counsel’s errors. In ruling on Duran’s motion, the trial court properly relied on its review of the trial record. Therefore, without an adequate record on appeal, it must be presumed that the court’s order was correct. The trial court’s order rejecting these claims was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Denial of Presentence Confinement Credit for Nonresidential Corrections Program

The Colorado Court of Appeals issued its opinion in People v. Pimble on Thursday, August 13, 2015.

Sentence—Presentence Confinement Credit—Nonresidential Community Corrections Program.

Defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance and attempted first-degree aggravated motor vehicle theft. The court initially sentenced her to twelve years in community corrections and later reduced this sentence to six years. Her community corrections placement was subsequently terminated. The court then resentenced defendant to six years in the custody of the Department of Corrections (DOC) and granted defendant credit for time served. However, the court did not give credit for her time served in the nonresidential program.

On appeal, defendant contended that she was entitled to presentence confinement credit (PSCC) for time spent in a nonresidential community corrections program, and the court erred by refusing to amend the mittimus to include this as time served. A defendant resentenced to DOC custody is entitled to PSCC for any time served in a residential community corrections facility. However, a defendant must be confined to receive PSCC. Because defendant was not confined in the nonresidential program, she was not entitled to PSCC for this period of time. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Counsel Not Ineffective for Failing to Appeal POWPO Conviction to Supreme Court

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, July 16, 2015.

Possession of a Weapon by a Previous Offender—Ineffective Assistance of Counsel—Certiorari Petition—U.S. Supreme Court—Investigation—Affirmative Defense.

After police officers observed Ray driving his vehicle straight through an intersection while in a left turn lane, exceeding the speed limit, playing loud music, and driving recklessly, they stopped and searched his car, discovering a BB gun and a firearm. Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Ray was charged with and convicted of Possession of a Weapon by a Previous Offender (POWPO). Ray is on death row after having been convicted of first-degree murder in a separate case, and his POWPO conviction was used as an aggravating factor in determining his death sentence. Ray filed a Crim.P. 35(c) motion for post-conviction relief, which was denied.

On appeal, Ray contended that appellate counsel rendered ineffective assistance by failing to file a certiorari petition with the U.S. Supreme Court. Ray had no right to counsel to pursue a petition for certiorari review in the Supreme Court. Further, he did not establish any resulting prejudice from failure to file a petition, because (1) he failed to show that it was likely the petition would be granted, (2) the exclusionary rule would not have precluded suppression of the firearm found in his car, and (3) the good faith exception to the exclusionary rule would have ultimately precluded suppression of the firearm.

Ray also contended that trial counsel rendered ineffective assistance by failing to investigate whether others had driven his car before the POWPO arrest. Because there was no reasonable probability that the result of the trial would have changed if evidence that others had driven the car had been admitted, the court did not err in determining this claim was raised and resolved on direct appeal.

Finally, Ray contended that trial counsel rendered ineffective assistance by failing to investigate a potential affirmative defense based on his Second Amendment right to possess firearms for self-defense. However, such a defense was not supported by the evidence and would have conflicted with Ray’s theory of defense that he did not know the firearm was in his car. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.