June 29, 2015

Colorado Supreme Court: Crim. P. 35(c) Post-Conviction Relief Inapplicable but Defendant May Seek to Withdraw Plea Under Crim. P. 32(d) for a “Fair and Just Reason”

The Colorado Supreme Court issued its opinion in Kazadi v. People on Thursday, November 20, 2012.

Criminal Law—Post-Conviction Review—Crim.P. 35(c) and 32(d)—Deferred Judgment—CRS § 18-1.3-102—Withdrawal of Guilty Plea—Ineffective Assistance of Counsel.

In this appeal, petitioner Yanick Kazadi, a legal permanent resident born in the Congo, sought Crim.P. 35(c) post-conviction review of his felony plea leading to a deferred judgment. Kazadi claimed ineffective assistance of counsel for counsel’s failure to notify him of possible deportation consequences for pleading guilty to obtain a deferred judgment and sentence.

The Supreme Court affirmed the ruling of the court of appeals, holding that Kazadi may not seek review of his deferred judgment and sentence under Crim.P. 35(c) while in the deferred judgment period because, in a deferred judgment situation, there has not been a judgment of conviction that makes Crim.P. 35(c) review available. Kazadi may, alternatively, seek to withdraw his guilty plea under Crim.P. 32(d). This rule allows a defendant to move to withdraw a guilty plea before sentence is imposed. In the unique situation of a deferred judgment, the defendant’s case is continued and there is no imposition of sentence and entry of judgment while the deferred judgment is in effect. Therefore, Kazadi may seek to withdraw his guilty plea pursuant to Crim.P. 32(d) for a “fair and just reason.”

Summary and full case available here.

Tenth Circuit: Defendant Received Ineffective Assistance of Counsel When His Attorney Disregarded His Request to Appeal

The Tenth Circuit issued its opinion in Clayton v. Jones on Friday, November 16, 2012.

Mr. Clayton entered a blind guilty plea to five counts in state court, including second degree murder. He received a life sentence for the murder charge. He was represented by counsel. During the plea and  sentencing proceedings, the state court informed Mr. Clayton that he had a right to appeal the decision and that he had ten days in which to do so. The court also asked his attorney to stay on as Mr. Clayton’s attorney for a period of ten days and stay on through any appeal time that might run. Neither an application to withdraw the plea nor a direct appeal was filed. Mr. Clayton filed both a pro se application for post-conviction relief (which was denied), and then appealed the state court’s ruling to the Oklahoma Court of Appeals, which affirmed the state court’s denial of post-conviction relief.

Mr. Clayton filed a petition for habeas relief in federal district court, which was denied as procedurally barred. The Tenth Circuit granted a certificate of appealability, vacated the district court judgment, and remanded for a hearing to determine whether Mr. Clayton requested counsel to file an appeal.

At this evidentiary hearing, evidence was presented that Mr. Clayton asked his state court attorney to file an appeal, but no appeal was filed. The State failed to refute Mr. Clayton’s allegation. The magistrate recommended the case be held in abeyance for not longer than 120 days to allow Mr. Clayton to withdraw his guilty plea.

On appeal, the State first argued that the district court committed clear error in finding that Mr. Clayton asked his attorney to file an appeal. Because appeals are part of the criminal process, a defendant is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so. Ample evidence supported the district court’s finding that Mr. Clayton’s attorney failed to comply with his request to file an appeal. The Tenth Circuit concluded that Mr. Clayton received ineffective assistance of counsel when his attorney disregarded his request to appeal.

The district court further granted Mr. Clayton a conditional writ, allowing him 120 days to withdraw his guilty plea. The State argued this remedy was an abuse of discretion. Since neither the magistrate’s report nor the district court’s order explained why this was the appropriate form of relief, the Tenth Circuit was unable to review the district court’s decision. To facilitate review, the Tenth Circuit ordered a limited remand to allow the district court to clarify why it granted Mr. Clayton a withdrawal of his guilty plea, rather than an appeal out of time.

The Tenth Circuit retained jurisdiction over the appeal.

Colorado Supreme Court: Determination that Instructional Error Did Not Constitute Plain Error Does Not Control Determination of Prejudice Because the Two Standards Differ

The Colorado Supreme Court issued its opinion in Hagos v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Hagos’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis. Thus, the Court affirmed the court of appeals’ judgment, albeit on different grounds.

Summary and full case available here.

Colorado Supreme Court: Plain Error Standard Differs from Standard Defined in Strickland v. Washington

The Colorado Supreme Court issued its opinion in Villareal v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court, employing the reasoning of Hagos v. People, 2012 CO 63 (No. 10SC424), affirmed the judgment of the court of appeals. The Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Villarreal’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis.

Summary and full case available here.

Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Court Denied Defendant’s Claims that His Statements Were Involuntary and that He Received Ineffective Assistance of Counsel

The Tenth Circuit published its opinion in Davis v. Workman on August 28, 2012.

An Oklahoma jury convicted Defendant Davis of the first degree murder and rape of Josephine “Jody” Sanford. After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA),  and pursuing postconviction relief in state court, Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but the Tenth Circuit granted a COA on three issues: (1) whether Defendant’s statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; (2) whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements; and (3) whether Defendant’s trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning.

The Court’s review in a § 2254 proceeding is highly deferential.

(1) Defendant contended that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. What Defendant presented on appeal failed to overcome the deference owed to the OCCA decision. The expert report merely stated that there was a possibility of impairment from the medication. The Tenth Circuit held that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.

(2) Defendant argued his counsel was ineffective in failing to present scientific evidence that he was impaired while making statements in the hospital. To succeed on an ineffectiveness-of-counsel claim, Defendant must show: that counsel’s representation fell below an objective standard of reasonableness, rendering his or her performance deficient, and that the deficiency prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the jury would have had a reasonable doubt respecting guilt.  The Tenth Circuit held that Defendant did not make the necessary showing that the OCCA “unreasonably concluded that [he] was not prejudiced” by counsel’s failure to present at trial the additional evidence of impairment.

(3) Finally, Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning. For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine coercion claim and that he was prejudiced by the failure of his attorneys to do so. However, the Court found the evidence that Defendant felt coerced by the withholding of morphine very weak, if not nonexistent. Accordingly, this claim was also denied.

Tenth Circuit: Certificate of Appealability Denied Except to Amend Motion to Add Claims that Counsel Was Ineffective for Failing to Challenge Calculation of Criminal History

The Tenth Circuit Court of Appeals published its opinion in United States v. Roberts on Friday, July 20, 2012.

The Tenth Circuit granted Petitioner a certificate of appealability (COA) on one issue, and denied it regarding all other issues. Petitioner sought a COA so he could appeal the district court’s denial of the motion to vacate, set aside, or correct sentence after being convicted of being a felon in possession of a firearm. The judgment of conviction was affirmed by the Tenth Circuit in 2011 but later raised four claims of ineffective assistance of trial counsel. The district court denied relief on all four claims.

Petitioner cannot appeal the denial of his motion until he first obtains a COA from the Tenth Circuit. “To be entitled to a COA, [Petitioner] must make ‘a substantial showing of the denial of a constitutional right.’ To make the requisite showing, he must demonstrate ‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ . . . Although [Petitioner] need not demonstrate his appeal will succeed to be entitled to a COA, he must ‘prove something more than the absence of frivolity or the existence of mere good faith.’ In his COA application and appellate brief, [Petitioner] challenges the district court’s disposition of his four claims and also argues the court abused its discretion by refusing to permit him to amend his § 2255 motion.”

The Court concluded that Petitioner “is not entitled to a COA on any claim except the one relating to the district court’s refusal to permit him to amend his § 2255 motion to add claims his trial and appellate counsel were ineffective for failing to challenge the calculation of his criminal history. The district court’s resolution of the remaining claims on which [Petitioner] seeks a COA is not reasonably subject to debate and the other issues he seeks to raise on appeal are not adequate to deserve further proceedings.”

Colorado Court of Appeals: Criminal Defendant Does Not Have Right to Review All Discovery Obtained by Counsel or to Testify at Pre-Trial Suppression Hearing

The Colorado Court of Appeals issued its opinion in People v. Krueger on May 10, 2012.

First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.

Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.

Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.

Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.

Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.

Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.

Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.

Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.

Summary and full case available here.

Tenth Circuit: Certificate of Appealability Denied; No Facts to Suggest Defendant Prejudiced by Attorney’s Purported Ineffectiveness

The Tenth Circuit Court of Appeals published its opinion in United States v. Moya on Monday, April 16, 2012.

The Tenth Circuit denied Petitioner’s request for appeal. Petitioner, proceeding pro se, filed a motion for relief under 28 U.S.C. § 2255 in the United States District Court for the District of New Mexico. The district court denied the motion and rejected his application for a certificate of appealability (COA). He then sought a COA from the Tenth Circuit, which was denied and his appeal dismissed “because no reasonable jurist could debate the district court’s decision. [Petitioner] argues that his counsel was ineffective in negotiating his plea agreement and that the district court erred in refusing to hold an evidentiary hearing on his attorney’s ineffectiveness. But he has not alleged facts to support a finding that he was prejudiced by his attorney’s purported ineffectiveness.”

Tenth Circuit: Plea Agreement Waived Ineffective Assistance of Counsel Claim Because Failure to File Appeal Does Not Undermine Validity of Plea

The Tenth Circuit Court of Appeals published its opinion in United States v. Viera on Wednesday, March 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a federal prisoner, filed a motion to vacate, set aside, or correct his sentence pursuant, alleging ineffective assistance of counsel. The district court dismissed the first three claims because Mr. Viera could not show prejudice. The district court denied relief on all claims but the fourth—that his attorney failed to file an appeal as instructed—because Petitioner waived this collateral challenge. “The court was sufficiently uncertain, however, about the waiver determination that it granted COA on the appeal issue.”

The Court determined that the plea agreement waived Petitioner’s ineffective assistance claim “because counsel’s alleged failure to file an appeal does not undermine the validity of the plea or the waiver.” Petitioner voluntarily “entered into a valid plea agreement that waived his right to bring a collateral attack except in limited circumstances not found here, and because enforcement of the waiver does not produce a miscarriage of justice,” the Court affirmed the district court’s denial of this claim.

Colorado Court of Appeals: Defendant Waived Statutory Right to Be Advised of Possible Penalties Faced if Deferred Judgment Agreement Were to Be Revoked

The Colorado Court of Appeals issued its opinion in People v. Finney on March 15, 2012.

Deferred Judgment—Revocation—Due Process—Advisement—Sentence—Mitigating Evidence—Ineffective Assistance of Counsel.

Defendant appealed the revocation of his deferred judgment conviction. The judgment was affirmed.

In 2003, defendant was charged with three counts of class 3 felony sexual assault and three counts of class 4 felony sexual assault. Defendant entered into a deferred judgment, subsequently violated the conditions of the deferred judgment, waived any further advisement on revocation of the deferred judgment, and admitted to violating the deferred judgment. The trial court sentenced him on revocation of the deferred judgment and denied his post-conviction motions.

Defendant contended that the second judge’s denial of his post-conviction motions was error. Specifically, he argued that the Constitution’s Due Process Clause requires that the second judge advise him of the penalties he faced if the deferred judgment agreement were to be revoked. The Court of Appeals disagreed. Plea counsel, in defendant’s presence, waived defendant’s statutory right to be advised of the possible penalties defendant faced if the deferred judgment agreement were to be revoked. By its terms, Crim.P. 11 expressly applies to the entry of the guilty plea. Crim.P. 11 does not require the court to inform defendant of the possible penalties he could face when revoking the deferred judgment agreement in which he expressly waived a formal advisement and for which he repeatedly was informed of the potential penalties.

Defendant raised two contentions about the sentencing hearing. He argued that the fifth judge (1) denied him his right to offer mitigating evidence at the sentencing hearing when the court denied plea counsel’s motion to continue the hearing; and (2) ignored mitigating evidence when he imposed sentence. However, defendant did not demonstrate that he actually was prejudiced by the trial court’s decision to deny his request for a continuance. As a result, the fifth judge did not abuse his discretion when he denied that motion. Further, defendant did not raise the issue of mitigation before the trial court, so the Court declined to address that issue.

Defendant also argued that (1) the second judge unreasonably limited the evidence he could submit at the post-conviction hearing; and (2) plea counsel was ineffective in his representation of defendant during the deferred judgment revocation process. The Court disagreed. The trial court did not abuse its discretion by limiting the time in which defendant presented evidence on his allegation either that plea counsel was ineffective or that the court erroneously denied his motion to reconsider his sentence. Defendant had sufficient opportunity to present evidence in support of his post-conviction claims. Further, the record does not support a conclusion that there was a reasonable probability that, but for plea counsel’s alleged errors, defendant would not have confessed the motion to revoke his deferred judgment and would have insisted on having a hearing on the motion. Therefore, defendant was not prejudiced by plea counsel’s alleged deficient performance.

Defendant asserted, and the prosecution conceded, that the mittimus incorrectly stated that his sentence includes a mandatory three-year term of parole. Under CRS § 18-1.3-1006(1)(b), defendant’s conviction required a ten-year-to-life parole term. Thus, the case was remanded to correct the mittimus to reflect the proper parole term.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

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.