November 14, 2018

Colorado Court of Appeals: Defendant Facing Probation Revocation has Statutory Right to Effective Counsel

The Colorado Court of Appeals issued its opinion in People v. Timoshchuk on Thursday, November 1, 2018.

Criminal ProcedurePostconviction RemediesImmigrationProbationRight to Counsel.

Timoshchuk was a lawful permanent resident of the United States. He was charged with forgery. As part of a plea agreement, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases. Timoshchuk’s probation officer filed a complaint in district court alleging that Timoshchuk had violated the two conditions of his probation. Timoshchuk then entered into an agreement resolving all four cases: he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk’s probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections concurrent with his other sentences.

The Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony. Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged and later denied his request for asylum. Timoshchuk then filed a Crim. P. 35(c) postconviction motion alleging he was denied effective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Timoshchuk argued that the court erred in denying his Crim. P. 35(c) motion without a hearing. He contended that his probation revocation counsel failed to sufficiently investigate and advise him of the specific immigration consequences of his plea. The court of appeals held that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel. Here, it was clear that Timoshchuk could be subject to removal for his aggravated felony conviction, and his probation revocation counsel should have advised him with certainty that his admission and resulting sentence could subject him to removal. Further, Timoshchuk became ineligible for asylum when he was sentenced to three years in prison for the forgery conviction, and his counsel should have advised him with certainty of the immigration consequences of his admission. If Timoshchuk did not receive an advisement from his counsel of the specific immigration consequences of his plea, he may be entitled to relief. Therefore, Timoshchuk alleged sufficient facts to warrant a hearing on the adequacy of the advice he received.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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