October 25, 2014

Colorado Court of Appeals: Defendant’s Right to Conflict-Free Counsel Violated When Sentencing Discussions Revealed

The Colorado Court of Appeals issued its opinion in People v. Delgadillo on March 1, 2012.

Sixth Amendment—Conflict of Interest—Attorney-Client Privilege.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree sexual assault and two counts of contributing to the delinquency of a minor. The judgment was reversed, the sentence was vacated, and the case was remanded for further proceedings.

Defendant took the stand at trial to testify in his own defense. Defendant testified that his counsel advised him that he would receive a sentence of twenty-five to thirty years, if found guilty. Outside the presence of the jury, defendant’s counsel testified in camera regarding his communications with defendant regarding the potential sentence, and defendant indicated that he would have taken the plea bargain instead of proceeding to trial if he had been told that the actual range was four to sixteen years if the sentences were to run concurrently. The case proceeded, and defendant was found guilty.

Defendant contended his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. No one asked defendant whether he would waive the attorney–client privilege to allow his counsel to testify, or explained what the consequences might be if defense counsel testified inconsistently with defendant’s trial testimony. The record reflects defense counsel’s inherent conflict in simultaneously trying to respond to questioning from the court and the prosecutor, to justify his earlier advice to defendant, and to remain a zealous advocate on behalf of his client. In the circumstances presented here, including defense counsel’s disclosures of attorney–client privileged information, defense strategy, and the specter of an ineffective assistance claim, there was an actual conflict of interest that deprived defendant of conflict-free representation. Accordingly, the judgment was reversed, the sentence was vacated, and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Colorado Court of Appeals: Plea Counsel Properly Advised Defendant; No Facts to Constitute Ineffective Assistance of Counsel

The Colorado Court of Appeals issued its opinion in People v. Stovall on January 19, 2012.

Crim.P. 35(a)—Plea—Ineffective Assistance of Counsel—Timeliness—Sentence.

Defendant appealed the trial court’s orders denying his Crim.P. 35(a) and (c) motions. The orders were affirmed.

Defendant shot and killed a neighbor’s dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff placed defendant under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant’s twin brother then arrived and shot the arresting deputy in the head, killing him. Defendant and his brother stole a pickup truck from a neighbor at gunpoint, and defendant shot another officer in the lower back, permanently paralyzing him. During the next twenty-four hours, defendant and his brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen officers without striking them. The brothers eventually surrendered.

Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty for either brother. Pursuant to that agreement, defendant pled guilty to one count of felony first-degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted after deliberation first-degree murder, five counts of attempted extreme indifference first-degree murder, and one count of aggravated robbery.

On appeal, defendant contended that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. Specifically, defendant argued that his plea counsel were ineffective because they failed to advise him that he could not be convicted of first-degree felony murder with a predicate offense of escape pursuant to CRS § 18-3-102(1)(b) when the escape was a petty offense. Because defendant’s plea counsel properly advised him and his claim was based on a misunderstanding of the law, he failed to state any facts that would constitute ineffective assistance of plea counsel.

Defendant also contended that plea counsel were ineffective because they did not examine the autopsy reports, police reports, or ballistic reports, and did not interview any witnesses before advising him to plead guilty. However, defendant did not specifically identify any exculpatory evidence or lack of evidence that would have affected his decision to plead guilty. Therefore, defendant’s argument is entirely speculative and insufficient to meet his burden of alleging facts that would allow the post-conviction court to find that he was prejudiced by counsel’s alleged failure to investigate.

Defendant also contended that the trial court erred in dismissing his Crim.P. 35(c) motion as time barred under CRS § 16-5-402 for the non-class felony convictions. However, defendant filed his Crim.P. 35(c) motion after the time had expired and failed to prove any justifiable excuse or excusable neglect for the untimely filing. Therefore, the court did not err in dismissing his motion.

Defendant further argued that the sentence imposed on him was illegal because his convictions for attempted after deliberation first-degree murder and attempted extreme indifference first-degree murder required inconsistent findings of fact. The information reflected that each attempted murder charge—after deliberation and extreme indifference —involved a different victim. Consequently, the sentence imposed on defendant was not illegal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 19, 2012, can be found here.

Colorado Court of Appeals: Trial Court Must Determine Whether Defendant Was Mentally Ill when He Requested to Represent Himself

The Colorado Court of Appeals issued its opinion in People v. Davis on January 5, 2012.

Competency—Mental Illness—Ineffective Assistance of Counsel—Possession—Distribution—Controlled Substance—Double Jeopardy—Guilty Plea.

Defendant appealed (1) the judgments of conviction for possession and distribution of a controlled substance entered after a jury verdict in Case No. 06CR10189; and (2) the judgments of conviction for two counts of possession of more than one gram of a controlled substance entered as a result of guilty pleas in Case Nos. 05CR1486 and 05CR3846. The case was remanded with directions.

Defendant contended that the trial court erred by denying his request to dismiss counsel and represent himself in Case No. 06CR10189. Courts may deny such requests made by defendants who are competent to stand trial, but whose mental illness renders them mentally incompetent to conduct their trials by themselves. Although the U.S. Constitution does not mandate this result, it permits it. Here, the trial court used the incorrect standard in determining whether defendant was competent to proceed to trial without counsel. Therefore, the trial court must determine on remand whether defendant was so mentally ill when he requested to represent himself that he was incompetent to conduct his trial without the assistance of counsel. If the court finds that defendant was competent to conduct his trial under this standard, the court must vacate the judgment of conviction and proceed accordingly.

Defendant next argued that the trial court erred by not adequately inquiring into his claims that substitute trial counsel was ineffective and labored under a conflict of interest. The record supports the adequacy of the trial court’s inquiry about this issue and the potential conflict of interest caused by defendant’s ethical complaint against counsel, as well as the court’s finding that defendant’s dissatisfaction pertained only to matters of trial preparation, strategy, and tactics.

Defendant further contended that the jury convictions for both possession and distribution of a controlled substance violate constitutional protections against double jeopardy, and that the conviction for possession of a controlled substance therefore must be vacated. Because the evidence was sufficient to support a finding that the possession and distribution charge each was based on a different quantum of drugs, defendant’s conviction on both counts did not violate double jeopardy principles.

Defendant also argued that it was error for the trial court to decline defendant’s request to withdraw his guilty pleas in Case Nos. 05CR1486 and 05CR3846. The decision to ask a court to withdraw a guilty plea is the defendant’s. Defense counsel is obligated to advise the defendant about the consequences of such a decision, but the defendant should have the last word. Here, because the decision to withdraw the guilty pleas was not a matter committed to substitute trial counsel’s discretion, the court abused its discretion when it declined to consider defendant’s request. The case was remanded for further inquiry on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Supreme Court: An Ineffective Assistance of Counsel Claim Premised on Failure to File Motion for Disqualification Must Have Allegation of Judicial Bias

The Colorado Supreme Court issued its opinion in People in the Interest of A.G., and Concerning C.M. on October 17, 2011.

Ineffective Assistance of Counsel—Judicial Disqualification—Appearance of Impropriety.

The Supreme Court reversed the court of appeals’ order requiring the trial court to determine on remand whether respondent received ineffective assistance of counsel because her attorney did not timely file a motion to disqualify the trial judge, whose clerk was related to a material witness in the case. The court also vacated the court of appeals’ directions to the chief judge to transfer the case to another judge.

Without deciding what is required to prevail on an ineffective assistance claim, the Court acknowledged that, at the least, an allegation of prejudice is necessary. Moreover, the Court held that when an ineffective assistance of counsel claim is premised on an attorney’s failure to file a motion for disqualification, the prejudice element cannot be satisfied without an allegation that the judge actually was biased. Because respondent’s motion for disqualification was based entirely on an appearance of impropriety, rather than a claim of actual bias, it failed to satisfy the prejudice element. Accordingly, the Court found it unnecessary to remand for additional findings on ineffective assistance.

Summary and full case available here.

Tenth Circuit: Dismissal of First Habeas Petition as Time-Barred was a Decision on the Merits; A Claim Presented in a Previous Habeas Petition Must Be Dismissed

The Tenth Circuit Court of Appeals issued its opinion in In re Rains on Wednesday, September 21, 2011.

The Tenth Circuit denied authorization to file a second or successive habeas corpus petition. Petitioner pleaded guilty in Oklahoma state court to making a telephone bomb threat, robbery with a dangerous weapon, and robbery. He was sentenced to ten, twenty, and twenty years of imprisonment, respectively, with the sentences to run concurrently. He filed his first habeas petition in federal district court in 2007, “asserting that (1) his sentence was excessive because he was eighteen years old at the time of the offenses, he was a first-time offender, and the victims were uninjured; (2) his robbery sentences were illegal; (3) his guilty plea was not entered knowingly and voluntarily because he was not told he would need to serve at least 85% of the sentence for robbery with a dangerous weapon; and (4) his counsel was ineffective for coercing him to plead guilty, failing to inform him that he would serve 85% of the robbery-with-a-dangerous-weapon sentence, and inadequately negotiating the plea. The court dismissed the petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Petitioner did not appeal.

In 2008, he filed another habeas petition, “re-asserting the first, third, and fourth claims. The district court decided this filing was an unauthorized second or successive § 2254 petition. Declining to transfer it to [the Tenth Circuit], the district court instead dismissed for lack of jurisdiction.” Petitioner again did not appeal. Petitioner now seeks authorization to assert all four claims in a second or successive habeas petition. “Under AEDPA, a claim presented in a previous § 2254 petition must be dismissed. . . . The dismissal of [Petitioner]’s first habeas petition as time-barred was a decision on the merits, and any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” The Court therefore denied authorization. The denial of authorization is also not appealable and cannot not be the subject of a petition for rehearing or for a writ of certiorari.

Tenth Circuit: Opinion Amended to Add Citation (Padilla Is New Rule of Constitutional Law; No Retroactive Application on Collateral Review)

The Tenth Circuit Court of Appeals amended its opinion in United States v. Hong on Thursday, September 1, 2011.

The Tenth Circuit amended its original opinion issued on August 30, 2011. The amendment is limited to adding a citation to Chaidez v. United States, ___ F.3d ___, 2011 WL 3705173 (7th Cir. Aug. 23, 2011).

Tenth Circuit: Padilla Is a New Rule of Constitutional Law But Does Not Apply Retroactively to Cases on Collateral Review

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hong on Tuesday, August 30, 2011.

The Tenth Circuit denied Petitioner’s application for certificate of appealability and dismissed the appeal. Petitioner is a citizen of South Korea and was a permanent legal resident of the United States. In September 2007, he pleaded guilty to one count of conspiracy to possess with intent to distribute and to distribute ecstasy, marijuana, and hydro-marijuana. He was sentenced to 37 months’ imprisonment and did not file a direct appeal. He was subsequently placed in immigration removal proceedings, which determined he was subject to removal from the United States because of his drug conspiracy conviction.

Petitioner then filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence as well as to withdraw his guilty plea on the grounds of ineffective assistance of counsel. He alleged his counsel failed to advise him of the immigration consequences of his guilty plea. In support, he cited Padilla v. Kentucky, 130 S. Ct. 1473 (2010), wherein the Supreme Court held that “before a non-citizen criminal defendant enters a guilty plea, his counsel has a duty under the Sixth Amendment to inform him ‘whether his plea carries a risk of deportation.’” The district court denied Petitioner’s § 2255 motion as untimely because “(1) it was filed outside the one-year statute of limitations period under § 2255(f)(1), and (2) Padilla was not a new rule of constitutional law and did not apply retroactively to cases on collateral review, so § 2255(f)(3) did not provide the correct starting date for the statute of limitations.” This appeal followed.

The Court concluded that “Padilla did not announce a new watershed rule of criminal procedure that affects the fundamental fairness and accuracy of a criminal proceeding. It is not within either of the extremely narrow Teague exceptions,” either, which would allow for retroactive application. “Therefore, Padilla is a new rule of constitutional law but does not apply retroactively to cases on collateral review.” Petitioner’s motion must be considered untimely then because it was not filed within one year of his conviction becoming final.

Tenth Circuit: No Evidence that Guilty Plea was Involuntary; Evidentiary Hearing Necessary to Determine Ineffective Assistance of Counsel Claim

The Tenth Circuit Court of Appeals issued its opinion in United States v. Weeks on Tuesday, August 9, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner pled guilty to conspiracy to commit securities fraud. He now argues that his guilty plea was neither knowing nor voluntary and was the result of ineffective assistance of counsel. His appeal was consolidated with his appeal from the district court’s denial of his § 2255 petition asserting the ineffective assistance of counsel claim.

The Court affirmed Petitioner’s conviction on his direct appeal, but reversed the dismissal of his § 2255 petition. Petitioner “pled guilty to the conspiracy charge without any further claim that he did not knowingly violate the law. Furthermore, four years passed between [his] guilty plea and sentencing, during which time [he] raised no concerns about the validity of his guilty plea. Under these circumstances, [the Court found that] it is neither obvious nor plain that [Petitioner's] plea was involuntary.”

Regarding the § 2255 issue, the Court concluded that the district court abused its discretion when it denied the claim that Petitioner’s attorney “had provided ineffective assistance of counsel in relation to the plea agreement without permitting further development of the record.” The Court determined nothing on the merits regarding the claim, but found that an evidentiary hearing is necessary to determine if Petitioner’s allegations are true.

Tenth Circuit: Pending Post-Conviction Motions or Collateral Attacks Do Not Negate the Finality of a Conviction for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Jimenez-Guzman v. Holder, Jr. on Tuesday, June 28, 2011.

The Tenth Circuit denied the petition for review. Petitioner, a Mexican citizen, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA). He contends that the court erred in denying his request for a continuance and in applying an incorrect legal standard to the evidence of his controlled-substance conviction; the Attorney General asserts that the Court lacks jurisdiction over a challenge to the denial of a continuance.

The Court found that there was no abuse of discretion in the denial of Petitioner’s motion for a continuance. Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned; the immigration judge had already continued the removal hearing several times while Petitioner awaited the state trial court’s disposition of his post-conviction motion. Additionally, the record and plea agreement negate any claim of ineffective assistance of counsel for failure to advise of the immigration consequences of Petitioner’s plea.

Lastly, after reviewing the substantial evidence, the Court determined that the government met its affirmative burden of establishing “through clear, unequivocal, and convincing evidence that [Petitioner] was removable based on his conviction of a crime relating to heroin, a federally controlled substance. Accordingly, the BIA committed no error in dismissing his appeal.”

Tenth Circuit: Counsel’s Actions Were Objectively Reasonable in Not Seeking Dismissal of Indictment Based on Violation of Speedy Trial Act

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rushin on Tuesday, June 28, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was sentenced to 139 years imprisonment for robbing six convenience stores at gunpoint. Petitioner appeals from the district court’s denial of his motion to vacate or set aside his sentence, claiming entitlement to post-conviction relief because he was denied his Sixth Amendment right to counsel when his trial attorney failed to seek dismissal of the indictment based on a violation of the Speedy Trial Act (STA).

The Court found that Petitioner did not carry his burden of proof regarding ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, “a defendant has the twofold burden of establishing that (1) defense counsel’s performance was deficient, i.e., counsel’s ‘representation fell below an objective standard of reasonableness’ as measured by ‘prevailing professional norms,’ and (2) defendant was prejudiced thereby, i.e., ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'” Violation of the STA is not enough to grant a dismissal with prejudice, and a dismissal without prejudice allows the government to return a new indictment within six months. Ultimately, Petitioner’s counsel’s actions during trial were objectively reasonable; should Petitioner have been successful in a pursuit of a STA claim, it is probable that the government would simply have reindicted him.

Colorado Court of Appeals: Petitioner Competent when he Waived Right to Counsel and Was Not Prejudiced when Counsel Withdrew without Requesting a Competency Hearing

The Colorado Court of Appeals issued its opinion in People v. Wilson on June 23, 2011.

Mental Competency—Right to Counsel—Waiver.

Defendant appealed the order denying his Crim.P. 35(c) motion. The order was affirmed.

Defendant was charged with first-degree murder. He initially was deemed mentally incompetent to stand trial, but later was restored to competency. After being represented by counsel during most of his case, he waived his right to counsel and proceeded pro se. The jury returned guilty verdicts for first-degree murder and a crime of violence sentence enhancer.

On appeal, defendant contended that he was entitled to an evidentiary hearing to present evidence that he was mentally incompetent to waive his right to counsel. In accordance with Crim.P. 35(c)(3)(VII), a court must deny any claim that could have been presented in an appeal previously brought. Here, on direct appeal, defendant could have, but did not, seek review of the trial court’s conclusion that he was competent to stand trial and to waive his right to counsel, and that he had knowingly and intelligently waived his right to counsel. Further, defendant was represented by counsel on his direct appeal, the record contained all of the relevant information regarding this issue, and defendant was represented by attorneys for most of his case. Therefore, the court properly denied this portion of defendant’s motion.

Defendant also contended that the post-conviction court failed to consider and apply Indiana v. Edwards, 554 U.S. 164 (2008), which recognizes a difference between mental competency to stand trial and mental competency to represent oneself at trial, and that he was not mentally competent to represent himself at trial under the Edwards standard. The Supreme Court in Edwards held that the Constitution merely permits a state to force representation on a defendant who falls within this “gray area.” Edwards did not hold that the Constitution requires such a result. The Constitution requires only that the standards of competency set forth in Dusky v. United States, 362 U.S. 402 (1960), be met. Therefore, defendant was not entitled to a hearing with this heightened standard.

Defendant further contended that his counsel were ineffective because they withdrew without first requesting a competency hearing for him. Even if counsel erred in failing to request a competency evaluation before they withdrew in 2003, defendant was not prejudiced, because the record reveals that he was competent when he waived his right to counsel. Accordingly, the post-conviction court properly denied this claim without a hearing; therefore, the failure of the court to address the ineffective assistance claim was harmless.

Defendant further contended that he was entitled to new counsel on appeal because he disagreed with the choice of issues raised by his attorney. Counsel’s tactical decision regarding which issues to assert on appeal was reasonable. Further, many of the issues defendant wished to raise were or could have been raised and resolved in his direct appeal; thus, they would have been successive in this proceeding. Accordingly, defendant had no well-founded belief that his attorney could not or would not completely represent him in this matter.

Regarding defendant’s request to represent himself, the Court of Appeals held that a criminal defendant has no constitutional right to self-representation when appealing an adverse decision in a collateral attack on his conviction. The order was affirmed and the motion was denied.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Tenth Circuit: Speculation Regarding the Purported Prejudicial Effect of Counsel’s Misconduct Not Enough to Conclude Outcome Would Have Been Different

The Tenth Circuit Court of Appeals issued its opinion in Byrd v. Workman on Friday, May 27, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner, an Oklahoma state prisoner currently serving a fifty-five-year sentence, appeals the district court’s denial of his habeas petition. Petitioner alleges that he received ineffective assistance of counsel because his trial counsel failed to investigate whether his prior felony convictions would be admissible for purposes of enhancing his sentence, and then introduced all of his prior convictions to the jury when three of them were otherwise inadmissible.

The Court disagreed with Petitioner’s contentions. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel’s performance “fell below an objective standard of reasonableness” and that “the deficient performance prejudiced the defense.” However, his counsel’s actions, while mistaken in introducing transactional felony convictions, did not rise to this level of prejudicial misconduct. The Court failed to see how the introduction of the improper transactional felonies prejudiced Petitioner; his relatively light sentence was not in itself indicative that a further reduction was reasonably probable had they not been admitted, especially given his uncontested status as a career offender. According to the Court, Petitioner “offers little more than speculation regarding the purported prejudicial effect of the admission of these additional felonies on his sentence, and it is well-established that such speculation alone cannot give rise to a ‘reasonable probability’ that the outcome of the trial would have been different.”