April 21, 2019

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.

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