June 27, 2019

Colorado Court of Appeals: Clean Slate Rule Renders Moot Ineffective Assistance Claim Regarding First Trial

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

Crim.P. 35(c)—Ineffective Assistance of Counsel—Mootness—Expert—Statements—Impeach—Competency.

Defendant lived with his wife and the victim in this case. After defendant’s wife filed for divorce and had defendant removed from the home, defendant returned to the home two times with a gun, shooting the victim the second time. A jury convicted defendant of several felonies based on these incidents. He appealed. A division of the Court of Appeals affirmed some of his convictions and reversed others. On retrial, a second jury convicted him of lesser, although related, charges. The same attorney represented defendant at both trials. Defendant contended in a Crim.P. 35(c) motion that his trial counsel had been ineffective. The post-conviction court denied the motion.

On appeal, defendant contended that the post-conviction court erred when, without a hearing, it denied his three Crim.P. 35(c) claims of ineffective counsel. Defendant’s post-conviction claim in the first trial was moot because the appellate court had granted defendant relief in a previous direct appeal. Because defendant received all the relief to which he was entitled when the division reversed the convictions, the post-conviction court could not have given him anything more. Therefore, defendant’s appeal of this issue was dismissed.

Defendant next contended that he was prejudiced at his second trial because his counsel did not retain an expert to test the blood on his clothing, which would have showed that the blood was his and he was there to commit suicide and not hurt the victim. However, defendant failed to show how this evidence would have changed the outcome of the trial.

Defendant also contended that certain statements he made should not have been admitted during his second trial because they were obtained in violation of his Miranda rights. The record, however, shows that defendant’s statements were not the product of police interrogation. Because defendant could not prove his suppression claim, he could not prove that his counsel was ineffective in this regard.

Defendant further argued that his counsel was ineffective because he did not impeach the victim. This argument failed because counsel did try to impeach the victim and defendant’s claim was speculative.

Defendant also argued that he was incompetent during his first trial. A psychiatrist performed a retroactive competency evaluation and formed the opinion that defendant had been competent during the first trial. Therefore, the trial court did not abuse its discretion in denying a second competency evaluation.

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

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