October 23, 2017

Colorado Supreme Court: Trial Court Did Not Err in Denying Defense’s Requested Continuance

The Colorado Supreme Court issued its opinion in People v. Ahuero on Monday, October 2, 2017.

Criminal Law—Continuances.

This case required the Colorado Supreme Court to decide whether a trial court abused its discretion in denying a continuance that defense counsel requested seeking more time to prepare for trial. At the time the continuance was requested, the trial court considered the following factors: (1) defense counsel would have three weeks to prepare for a two- or three-day trial involving eight witnesses and no physical evidence, but defense counsel refused to make specific arguments on why the additional time was needed; (2) the trial court would have had to rearrange its docket and possibly hand off the case to a different judge; (3) priority is given to cases involving the sexual assault of a child; and (4) the victim’s family wanted to resolve the case promptly.

The supreme court concluded that, under these circumstances, the trial court’s decision to deny a continuance was not so manifestly arbitrary, unreasonable, or unfair to constitute an abuse of discretion. Therefore, the court reversed the court of appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Failure to Properly Advise Defendant of Immigration Consequences was Deficient Performance

The Colorado Court of Appeals issued its opinion in People v. Sifuentes on Thursday, April 20, 2017.

Felony—Plea Agreement—Immigration—Deportation—Ineffective Assistance of Counsel—Prejudice.

The prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to 42 months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation under federal law.

Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel based on the erroneous advice regarding deportation. The postconviction court denied the petition. Although the court agreed that plea counsel failed to properly advise defendant, it determined that defendant did not suffer prejudice because due to the purported evidence against him, even if defendant had known the consequences of his plea, it would not have been rational for him to reject the plea offer. The court further concluded that even if he had established prejudice, defendant was not entitled to relief due to the circumstances of his providency hearing.

On appeal, defendant contended that the district court erred in determining that his plea counsel’s deficient performance did not prejudice him. When an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he will in most cases be permitted to withdraw the plea. Here, defendant presented some objective corroborating evidence of his prejudice claim (e.g., his plea counsel’s testimony confirming defendant’s concerns about deportation and her erroneous advice about deportation). Although the prosecution’s case against defendant appeared to be strong, it cannot be concluded that a conviction would have resulted if defendant went to trial. The court of appeals concluded that rejecting the guilty plea offer and going to trial would have been a rational decision for defendant. Because defendant established a reasonable probability that his plea counsel’s deficient performance affected the outcome of the plea process, he was allowed to withdraw his guilty plea.

The order was reversed and the case was remanded with directions.

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: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Failure to Communicate with Counsel Does Not Warrant Continuance

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

Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance—Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

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: Pattern of Abuse Enhancement Requires Proof of At Least Two Distinct Instances

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

William Edward Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Johnson had anally raped her earlier that day and had been sexually abusing her for years. Johnson was charged with one count of sexual abuse on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of abuse. The jury found Johnson guilty of the anal rape but none of the other listed incidents of sexual assault. The jury convicted Johnson of the pattern of abuse enhancer based on the anal rape and another incident where Johnson was asleep and woke up ejaculating as R.B. was “grinding” on him. The trial court merged all the convictions into the sexual assault on a child as a pattern of abuse conviction and sentenced Johnson to 20 years to life.

On appeal, Johnson argued the evidence was insufficient to support the sentence enhancer, and the court of appeals agreed. The jury had rejected all of the incidents listed by the prosecution except the anal rape and instead wrote in the incident where R.B. was grinding on Johnson while he slept. The court disagreed with Johnson’s contention that the jury was bound to consider only the specifically listed incidents, finding instead that the jury need only agree unanimously that the defendant committed the same act or acts or all of the acts described by the victim. However, evaluating the incident in question, the court found insufficient evidence to support his conviction based on that incident, because he was asleep at the time of the incident and therefore could not have knowingly committed the act. Therefore, only one of the specific incidents found by the jury qualified as sexual assault, and the enhancer could not apply. The court of appeals remanded for resentencing.

Johnson also argued the trial court erred in denying his request for substitute counsel based on his dissatisfaction with the level of communication present with current counsel. The trial court denied Johnson’s motion, finding that counsel’s failure to visit Johnson in prison did not indicate deficient performance, and also noting that it had observed counsel in other trials and she had always provided effective assistance. The court of appeals affirmed the trial court’s denial of Johnson’s motion for substitute counsel, finding that mere difficulties in communication do not constitute deficient performance.

Next, the court evaluated Johnson’s claim that the jury’s access to the videotaped interview of R.B. was unduly prejudicial. The trial court in this case understood its obligation to consider certain restrictions on the jury’s view of the videotape and imposed restrictions. Because the court considered its duty and restricted the jury’s access, the court of appeals found no error.

The court of appeals remanded for resentencing based on the insufficient evidence to support the sentence enhancer and affirmed on all other counts.

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: Defense Counsel Did Not Err by Refusing to Call Expert Witness who Agreed with Prosecution

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

First-Degree Murder—Ineffective Assistance of Counsel—Rebuttal Expert—Jury Instructions—Conflict of Interest.

Defendant was charged and found guilty of first-degree murder for stabbing a female friend to death when the two were most likely high on methamphetamine.

On appeal, defendant contended that the post-conviction court erred in denying his motion because the evidence at the post-conviction hearing established that his trial counsel was ineffective. Defense counsel was not ineffective for failing to call a rebuttal expert to testify regarding the cause of the victim’s death after defendant’s first expert changed her mind and agreed with the prosecution’s expert witnesses. Further, because the subject of hypothermia as a potential cause of death was not central to the case, defense counsel did not err in failing to call an expert on this issue. It was also reasonable for defense counsel to forgo calling a methamphetamine expert, who could cause more harm than good to defendant’s case, and to forego calling another inmate, Mr. K, when this witness had three felony convictions and two other inmates had already been used as impeachment witnesses to rebut the prosecution’s witness. It was also not a conflict of interest for defense counsel to represent defendant after previously having represented Mr. K, who was a potential witness for defendant.

Defendant also asserted that his attorney erred by not objecting to the jury instructions, which only contained a partial instruction regarding intoxication law. However, voluntary intoxication was not consistent with defendant’s theory of the case, which was that he did not kill the victim. Therefore, although defense counsel should have asked to include a complete instruction regarding intoxication law since the prosecution had introduced the instruction, it was not err in failing to do so given the theory of the case. In light of these considerations, the post-conviction court correctly determined that defendant had not shown an actual conflict of interest adversely affecting his counsel’s performance.

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

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.