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.