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noting the non-exhaustive list of factors that courts should consider in addressing the issue of justifiable excuse or excusable neglect under section 16-5-402
Summary of this case from Hunsaker v. PeopleOpinion
No. 06SC520.
March 24, 2008.
Appeal from the District Court of City and County of Denver, Richard T. Spriggs, J.
Douglas K. Wilson, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
In this Crim. P. 35(c) case, we are asked to address the issue of whether conflict-free counsel should be appointed for James Close in order to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception to the time bar and a colorable claim of ineffective assistance of counsel for failure to raise the applicability of People v. Nguyen, 900 P.2d 37 (Colo. 1995). The Colorado Office of the Public Defender represented Close in direct appeal and post-conviction proceedings leading to our decision in Close v. People ("Close IIP), 48 P.3d 528 (Colo. 2002). Close III involved a timely-filed Crim. P. 35(c) motion brought by the public defender's office on behalf of Close.
After our decision in Close III, Close, filing pro se, amended his previously filed Crim. P. 35(a) motion to include a Crim. P. 35(c) motion requesting the appointment of conflict-free counsel to represent him in ineffective assistance of counsel proceedings involving the public defender's office. In this motion, Close raised the applicability of our decision in Nguyen to his sentence. Applied to Close, Nguyen could result in a reduction of Close's sentence from sixty to thirty years. The public defender's office did not raise the applicability of Nguyen at any time during its representation of Close in the trial court, court of appeals, or before this court in the proceedings leading to our decision in Close III.
In the case now before us, on remand from Close III, the trial court summarily ruled that Close's pro se Crim. P. 35(a) and 35(c) motions, as well as Crim. P. 35(b) and 35(c) motions filed on his behalf by the public defender's office, were all time barred. The court of appeals affirmed. We granted certiorari to review the court of appeals' judgment.
The four issues on which we granted certiorari are:
(1) Whether the court of appeals erred when it failed to follow Rule 35(b)'s express language and held that defendant's motion for sentence reconsideration was untimely even though it was filed, as allowed by Rule 35(b), within 120 days of this Court's decision affirming defendant's sentence in Close v. People, 48 P.3d 528 (Colo. 2002);
(2) Whether the holding in People v. Nguyen, 900 P.2d 37 (Colo. 1995), should be applied retroactively thus permitting a sentence reduction in this case;
(3) Whether the court of appeals applied the wrong standard of review to the district court's finding that defendant lacked justifiable excuse or excusable neglect for filing a late Crim. P. 35(c) motion when the district court made its decision based solely on the written pleadings; (4) Whether the court of appeals erred in denying the defendant conflict-free counsel when the district court denied a hearing on his pro se Crim. P. 35(c) motion.
We hold that the trial court must appoint conflict-free counsel to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception of section 16-5-402(2)(d) and a colorable claim of ineffective assistance of counsel for failure of the public defender's office to raise the applicability of the Nguyen decision to Close's sentence. In light of our decision, we find it unnecessary to address the remainder of the certiorari issues.
I.
Close is currently serving a sixty year Department of Corrections sentence for participating, with three other individuals, in the attack and robbery of six Japanese students from Teikyo Loretto Heights University. A jury convicted Close in 1991 of criminal mischief, under section 18-4-501, 8B, C.R.S. (1986); first degree criminal trespass, under section 18-4-502, C.R.S. (1986); theft, under section 18-4-401, C.R.S. (1986); conspiracy to commit criminal mischief and theft, under section 18-2-101, C.R.S. (1986); aggravated robbery, under section 18-2-201, C.R.S. (1986); attempted aggravated robbery, under section 18-2-101, C.R.S. (1986); second-degree assault, under section 18-3-203, C.R.S. (1986); ethnic intimidation, under section 18-9-121, 8B, C.R.S. (1990 Cum.Supp.); and conspiracy to commit assault and ethnic intimidation, under section 18-2-201, C.R.S. (1986). At sentencing, the trial court applied the mandatory crime-of-violence sentence enhancement to Close's sentence for the six second-degree assault convictions.
During trial, Close was represented by a court-appointed public defender. Following Close's sentencing, the public defender's office requested that the trial judge appoint appellate counsel to represent Close on appeal, arguing that Close's appellate claim had merit. The trial judge then appointed the public defender's office to represent Close in appellate proceedings. With the assistance of the public defender's office, Close filed a direct appeal and, due to a court of appeals' judgment, People v. Close ("Close I"), 867 P.2d 82 (Colo.App. 1993), obtained a reduction in his sentence from seventy-five to sixty years. The resulting sixty year sentence was the minimum prescribed by the crime-of-violence statute, as it existed prior to our decision in Nguyen — six consecutive five year sentences for second-degree assault and three consecutive ten year sentences for armed robbery.
The harshness of his remaining sentence, even after a fifteen year reduction, prompted the trial judge to remark that he would reduce Close's sentence even further if that option were available under Colorado law. The trial judge stated:
I do feel, very frankly, that although the crimes involved here were serious, that a 60 year sentence under these circumstances is — well, I can only say that it's more severe than any sentence I would have handed out if the law did not require a 60 year sentence, which it does.
On remand from Close I, Close, acting pro se and with the assistance of the public defender's office, filed Crim. P. 35(a), (b), and (c) motions in an effort to obtain further sentence reduction. That litigation focused on alleged errors in the complicity instruction at trial and the trial court's post-conviction ruling that Close was not entitled to a proportionality review of his sentence. Affirming the trial court, the court of appeals decided against Close on both issues in People v. Close ("Close II), 22 P.3d 933 (Colo.App. 2000).
We granted certiorari on the proportionality review issue and held in Close III that Close was entitled to an abbreviated proportionality review. 48 P.3d 528. Instead of returning the case to the trial court, as we could have, we elected to conduct the abbreviated proportionality review. Upon conducting that review, we upheld Close's sixty year sentence.
At no time in the proceedings leading up to Close III did the public defender's office raise, on Close's behalf, the applicability of Nguyen to Close's sentence.
On remand from Close III, Close filed amended pro se Crim. P. 35(a) and (c) motions for relief from his sixty year sentence. Alleging ineffective assistance of counsel and the applicability of Nguyen to his sentence, he requested the appointment of conflict-free counsel to represent him. Although Close phrased this motion as being directed at his public defender trial counsel, his pro se pleading places the public defender's office in a conflict position and necessarily implicates that office in failing to raise the applicability of Nguyen on his behalf in post-conviction proceedings.
In an effort to protect Close's rights, the public defender's office then filed Crim. P. 35(b) and (c) motions to place the applicability of Nguyen before the trial court. The trial court, without a hearing, summarily ruled that the Crim. P. 35(a), (b), and (c) motions were time barred. In its unpublished opinion that we now review, the court of appeals upheld the application of the section 16-5-402(1) time bar for post-conviction relief. The court of appeals refused to grant any relief from the time bar based on the justifiable excuse or excusable neglect provision of section 16-5-402(2)(d), reasoning that we had not issued a decision holding Nguyen to be retroactive.
We now turn to our analysis of why the court of appeals and the trial court erred in applying the Crim. P. 35(c) time bar of section 16-5-402(1) without holding a hearing, and why conflict-free counsel must be appointed to represent Close in further proceedings.
II.
We hold that the trial court must appoint conflict-free counsel to investigate and pursue potential relief from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception of section 16-5-402(2)(d) and a colorable claim of ineffective assistance of counsel for failure of the public defender's office to raise the applicability of the Nguyen decision to Close's sentence.
A. Exception to Application of the Time Bar
Following our decision in Close III, the trial court and the court of appeals ruled that any further post-conviction relief was time barred. However, Crim. P. 35(c), section 16-5-402(2)(d), contains a provision excusing operation of the time bar when the defendant has justifiable excuse or excusable neglect for not bringing the claim within the otherwise applicable time period. The statute provides:
(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:
(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.
§ 16-5-402(2)(d), C.R.S. (2007) (emphasis added).
Justifiable excuse or excusable neglect based on the alleged ineffective assistance of counsel is a matter that should be addressed, in the first instance, by the trial court. Our review today is limited to the question of whether Close was entitled to a hearing to determine the applicability of the time bar to his Crim. P. 35(c) motion. Because we consider, as a matter of law, whether the facts alleged, if true, could constitute justifiable excuse or excusable neglect pursuant to section 16-5-402(2)(d), we review this question de novo.
The defendant must allege facts that, if true, would establish justifiable excuse or excusable neglect in order to entitle him or her to a hearing on the applicability of this exception to the time bar. People v. Wiedemer, 852 P.2d 424, 440 n. 15 (Colo. 1993). A defendant need not set forth the evidentiary support for his or her allegations; instead, a defendant need only assert facts that, if true, would provide a basis for relief. Id.
In addressing the applicability of the justifiable excuse or excusable neglect time bar exception, the trial court must consider the particular facts of a case, so as to give effect to the overriding concern that defendants have a meaningful opportunity to challenge their convictions as required by due process. People v. Shepherd, 43 P.3d 693, 700 (Colo.App. 2001).
We have identified the following non-exhaustive list of factors for consideration in addressing the issue of justifiable excuse or excusable neglect under section 16-5-402: (1) whether there are circumstances or outside influences preventing a challenge to a prior conviction and the extent to which the defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of relevant avenues of relief that are available; (2) whether a defendant had any previous need to challenge a conviction and either knew that it was constitutionally infirm or had reason to question its validity; (3) whether a defendant had other means of preventing the government's use of the conviction, so that a post-conviction challenge was previously unnecessary; and (4) whether the passage of time has an effect on the State's ability to defend against the challenge. Wiedemer, 852 P.2d at 441-42.
B. Conflict-Free Counsel
The public defender's office cannot argue the claim of ineffective assistance of counsel against itself. Murphy v. People, 863 P.2d 301, 305 n. 11 (Colo. 1993); see also McCall v. Dist. Court, 783 P.2d 1223, 1227 (Colo. 1989). Under Rule 1.10 of the Colorado Rules of Professional Conduct, imputed disqualification applies with equal force to court-appointed attorneys. See People ex. rel. Peters v. Dist. Court, 951 P.2d 926, 932 (Colo. 1998).
Although a defendant does not have a constitutional right to counsel in post-conviction proceedings, Murphy, 863 P.2d at 301 n. 9, the trial court has authority to appoint counsel in Crim. P. 35(c) proceedings. Duran v. Price, 868 P.2d 375, 379 (Colo. 1994). Here, following Close I, the trial court appointed the public defender's office to represent Close in the post-conviction proceedings he pursued through the trial court, the court of appeals, and this Court in Close III.
After our decision in Close III, the trial court invoked the time bar of section 16-5-402 and summarily refused to consider any exception to its application. It reasoned that Close had brought a Crim. P. 35(c) motion pro se after the court of appeals' decision in Close I, thereby demonstrating that he had not been prevented from filing a Crim. P. 35(c) motion within the time period for bringing a timely post-conviction claim.
However, the trial court appointed the public defender's office to represent Close in post-conviction proceedings. The trial court has authority to appoint alternative defense counsel to represent Close, if the stated factual basis and alleged conflict of interest are sufficient to warrant pursuit of an ineffective assistance of counsel claim involving the public defender's office. See People v. Mills, 163 P.3d 1129, 1133 (Colo. 2007). Thus, the issue of justifiable excuse or excusable neglect in this case turns on the public defender's failure to raise Nguyen when it could have done so in the timely-filed Crim. P. 35(c) proceedings it litigated on Close's behalf leading up to our decision in Close III.
Most significantly, at stake in this case is a thirty year sentence reduction for a youthful offender, who the trial court itself recognized was being harshly but mandatorily sentenced under the pre-Nguyen statute. The public defender's office could have made the Nguyen argument when appointed to represent Close in his post-conviction proceedings following Close I. See People v. Hickey, 914 P.2d 377, 378-79 (Colo.App. 1995).
In People v. Duke, the court of appeals remanded a case to the trial court for appointment of conflict-free counsel to litigate whether post-conviction counsel's failure to file a timely Crim. P. 35(b) motion constituted ineffective assistance of counsel, which would excuse a late filing of the motion. 36 P.3d 149, 153 (Colo.App. 2001); see also Swainson v. People, 712 P.2d 479, 480 (Colo. 1986). Likewise, ineffective assistance of counsel in Crim. P. 35(c) proceedings is colorable grounds for appointment of conflict-free counsel and a trial court hearing on justifiable excuse and excusable neglect.
C.
The Public Defender's Failure to Raise Nguyen Is Colorable Grounds for a Claim of Ineffective Assistance of Counsel
The central thrust of Close's Crim. P. 35 motions now before us concerns the applicability of Nguyen to Close's case. Moreover, the four certiorari issues in this appeal revolve around the applicability of Nguyen.
In Nguyen, a decision issued following Close's conviction, we held that equal protection under the law is violated if attempted second-degree assault is treated as an automatic crime-of-violence, because attempted first-degree assault is not an automatic crime-of-violence. 900 P.2d at 41. We struck the crime-of-violence sentencing provision as it applied to second-degree assault, defined in section 18-3-203(1)(b), C.R.S. (1995).
Close was convicted under section 18-3-203(1)(b), the same statute at issue in Nguyen. The same crime-of-violence sentence enhancer that was struck down in Nguyen, as a violation of equal protection, was applied to Close's conviction and sentence. See § 18-3-203(2)(c), C.R.S. (1986). The jury convicted Close of six counts of assault in the second-degree. The charging document, the jury instructions relating to second-degree assault, and the verdict forms in Close's case all identify that Close was convicted of assault in the second-degree.
See Amended Complaint/Information (identifying criminal charges against Close as "Assault in the Second Degree, C.R.S. § 18-3-203," denoting them as counts 17-22, and stating, "That on the 7th day of October, 1990, at the City and County of Denver, State of Colorado, James Clifford Close, Jr., . . . with intent to cause bodily injury to another, did unlawfully, and feloniously cause and attempt to cause bodily injury to. . . .") (emphasis added); see also Jury Instruction No. 2 ("The Defendant is charged with . . . Assault In The Second-Degree against. . . ."); Jury Instruction No. 22 ("The elements of the crime of Assault In The Second Degree are: (1) That the Defendant, (2) in the City and County of Denver, State of Colorado, on or about October 7, 1990, (3) with intent to cause bodily injury to another person, (4) caused or attempted to cause such injury to any person, (5) by means of a deadly weapon.") (emphasis added); Jury Verdict Forms Count Nos. 17-22 ("We the jury find the Defendant, James Clifford Close, Jr. GUILTY . . . [of] Assault in the Second Degree. . . .").
At the time Close was convicted of assault in the second-degree, the statute included attempted assault. Section 18-3-203(1)(b), C.R.S. (1986), stated:
A person commits the crime of assault in the second degree if . . . [w]ith intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon. . . .
In Nguyen, we relied on a line of Colorado cases dating back to 1977 and before to hold that the second-degree assault statute, section 18-3-203, violated the equal protection guarantees, because it imposed a harsher penalty for less serious criminal conduct than did the first-degree assault statute, section 18-2-202. 900 P.2d at 40. For this application of pre-existing law, Nguyen cited to People v. Bramlett, 194 Colo. 205, 210, 573 P.2d 94, 97 (1977), and other cases, that stand for the proposition that a lesser offense cannot be punished more seriously than a greater offense. In Bramlett, we held unconstitutional a sentencing scheme that provided for a greater penalty for first-degree assault then criminally negligent homicide. Id. at 210, 573 P.2d at 97.
We decline to address the retroactivity argument raised in this case because we find that Nguyen was based on a well-established constitutional principle. See People v. Johnson, 142 P.3d 722, 726 (Colo. 2006) ("We make this inquiry because no retroactivity analysis would be necessary if Blakely `simply applied a well-established constitutional principle to govern a case which [was] closely analogous to those which ha[d] been previously considered in the prior case law.'").
See also Nguyen's reliance on Smith v. People, 852 P.2d 420, 422 (Colo. 1993); People v. Weller, 679 P.2d 1077, 1082 (Colo. 1984). In addition, Bramlett cites to People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975) and People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969) for the premise that a statute that prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like situations violates a person's right to equal protection of the laws. 194 Colo, at 208, 573 P.2d at 96.
In Nguyen, the prosecution did not contest the application of pre-existing law under the Bramlett equal protection line of cases. 900 P.2d at 37. Instead, the disagreement we resolved in Nguyen concerned the appropriate remedy for the equal protection violation. Id. at 38. The prosecution argued, and we agreed, that the appropriate remedy was to strike the crime-of-violence sentence enhancement in section 18-3-203(2)(c), as applied to Nguyen's conviction. Id. at 41.
We reject the prosecution's argument that Close's case can be differentiated from Nguyen because bodily injury, a basis for crime-of-violence sentencing, was a fact before the jury in Close's case. The prosecution's argument misses the crucial fact that, given the circumstances of his case, Close's jury returned a verdict of second-degree assault on an instruction that included attempted assault. Thus, based on the jury verdict, the jury instructions, and the complaint, Nguyen is applicable to Close's six second-degree assault convictions.
Neither we nor the trial court can conclude that the jury convicted Close of completed, rather than attempted, assaults. The instructions and verdict form did not include a special interrogatory asking the jury to choose between the two; we are precluded from inquiring into the jurors' intent and must presume they followed the trial court's instructions and discharged their duties faithfully. Stewart ex rel. Stewart v. Rice, 47 P.3d 316, 322 (Colo. 2002). At best, the verdict is ambiguous with regard to the jury's intent. In the same year we decided Nguyen, the General Assembly removed the attempt language from the second-degree assault statute under which Close was convicted, thereby eliminating the possibility of such an ambiguity and narrowing the potential applicability of Nguyen to defendants like Close convicted under the prior statutory language. See 1995 Colo. Sess. Laws, v. 2, ch. 240, sec. 18-3-203(1)(b), at 1251. When the statute under which a defendant is convicted allows imposition of a harsher punishment or a less harsh punishment, we accord the defendant the benefit of a construction favoring the less harsh punishment pursuant to the rule of lenity. See People v. Abiodun, 111 P.3d 462, 468 (Colo. 2005).
In view of Nguyen, and its reliance on the Bramlett line of cases, the alleged ineffective assistance of counsel in this case is not simply a matter of missing a case citation; rather, it involves a constitutional holding directly applicable to Close's case defining the parameters of his sentence. The allegation that counsel failed to inform the court of the constitutional limitations of Close's sentence, which in turn resulted in a sentence twice the constitutionally permissible level, is within the standard for measuring ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Accordingly, we determine, as a matter of law, that Close has alleged facts which, if true, would establish justifiable excuse or excusable neglect, and therefore merit a hearing. The trial court must appoint conflict-free counsel to investigate and pursue potential relief, from operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception of section 16-5-402(2)(d) and a colorable claim of ineffective assistance of counsel for failure of the public defender's office to raise the applicability of the Nguyen decision to Close's sentence.
Because of the likelihood that it will be necessary to resentence Close within the applicable sentencing range without the sentence enhancer, we find it unnecessary to address the Crim. P. 35(b) issue in this case in deference to the trial court proceedings.
III.
Accordingly, we reverse the judgment of the court of appeals with directions that it return this case to the trial court to appoint Close conflict-free counsel and conduct further proceedings consistent with this opinion.
Justice EID dissents and JUSTICE RICE joins in the dissent.