People v. Hardin ( 2016 )

COLORADO COURT OF APPEALS 2016COA175
Court of Appeals No. 14CA0710
City and County of Denver District Court No. 87CR1542
Honorable Elizabeth A. Starrs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Daniel Hardin,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE FOX
Bernard and Richman, JJ., concur
Announced December 1, 2016
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
¶1 Defendant, William Daniel Hardin, appeals the postconviction
court’s long-awaited order denying his Crim. P. 35(c) motion for
postconviction relief.1 We affirm.
I. Background
¶2 Hardin was accused of robbing three men, Isaac Fisher, Victor
Irving, and Lloyd Rhodes, and of killing two of the men, Fisher and
Irving. The prosecution charged Hardin with one count of
aggravated robbery for the robbery of all three men and with two
counts each of felony murder and murder after deliberation with
respect to the killings of Fisher and Irving. When Hardin’s 1988
trial concluded, the jury found him guilty by separate verdict forms
of two counts of aggravated robbery regarding Irving and Rhodes
and two counts each of felony murder and murder after deliberation
with respect to Fisher and Irving. The jury acquitted Hardin of the
aggravated robbery count with respect to Fisher.
¶3 The trial court entered a judgment of conviction and sentenced
Hardin to consecutive terms of imprisonment of sixteen years for
each aggravated robbery conviction and life for each felony murder
1 The third and final district court judge to preside over this case
finally took action after years of inaction by the judge’s two
predecessors.
1
conviction. It did not sentence Hardin on the murder after
deliberation convictions.2
¶4 Several months after the trial, Hardin filed a notice of appeal
regarding the judgment of conviction. Soon after, he requested and
was granted a limited remand to pursue an ineffective assistance
claim, pursuant to Crim. P. 35(c), concerning his trial counsel. To
avoid a conflict of interest, the public defender’s office was allowed
to withdraw from the postconviction proceedings and the appeal. In
granting the remand in 1991, a division of this court ordered that
the postconviction proceedings “be done with all due speed.”
¶5 Over the next six years, the postconviction court appointed a
succession of private attorneys to represent Hardin; they all
withdrew before resolution of the proceedings. The postconviction
court repeatedly set the matter, only to later vacate the settings.
Hardin repeatedly expressed frustration with his legal
2The trial court’s minute orders and mittimus seemingly conflict
with each other as to whether the aggravated robbery and felony
murder convictions regarding Irving merged, and whether Hardin
was sentenced to life imprisonment on each count of felony murder
and murder after deliberation, or just the felony murder
convictions. Two divisions of this court, and the postconviction
court, later interpreted Hardin’s sentences as explained here.
2
representation and with his appointed attorneys’ lack of action in
the postconviction court and in this court.
¶6 A division of this court eventually vacated the limited remand
and decided Hardin’s direct appeal in 1997, about ten years after
Hardin committed the underlying crimes. See People v. Hardin,
(Colo. App. No. 88CA1898, Dec. 18, 1997) (not published pursuant
to C.A.R. 35(f)) (Hardin I). That division affirmed Hardin’s
convictions, but it remanded with instructions for the trial court to
vacate the felony murder conviction concerning Irving’s death, enter
a judgment of conviction for the count of murder after deliberation
concerning Irving’s death, and resentence Hardin accordingly.3 Id.
That division also concluded that Hardin’s ineffective assistance of
counsel claims should be considered in a postconviction
proceeding. Id.
¶7 Hardin later filed a pro se Crim. P. 35(c) motion raising
numerous claims, including ineffective assistance of counsel. The
postconviction court denied the motion in 1999 without holding a
hearing, appointing counsel, or resentencing Hardin in accordance
3The resulting sentence for this conviction, finally imposed in 2014,
was life imprisonment.
3
with the remand instructions. Hardin appealed the 1999 order
denying his postconviction motion. In December 2000, a division of
this court reversed the order and remanded with instructions to
hold further proceedings on Hardin’s postconviction claims and to
comply with the 1997 remand instructions regarding resentencing.
See People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21, 2000) (not
published pursuant to C.A.R. 35(f)).
¶8 After the remand, the postconviction court appointed another
attorney to represent Hardin in April 2001. Over the next four
years, and after the postconviction court allowed several extensions
of time to supplement Hardin’s pro se Crim. P. 35(c) motion,
Hardin’s appointed counsel failed to file any supplement.
Meanwhile, Hardin made numerous pro se filings expressing his
frustration with his attorney’s inaction and his desire to obtain
adequate counsel. In response to the inactivity in these
proceedings, the postconviction court appointed Hardin’s current
attorney in February 2005.
¶9 Almost eight years later, in December 2012 — about twenty-
four years after trial and about twelve years after Hardin filed his
original Crim. P. 35(c) motion — the third and final trial judge to
4
preside over this case since the 2000 remand issued an order
mandating that Hardin’s postconviction proceedings “get moving.”4
Thereafter, Hardin’s attorney filed two supplemental briefs in
support of his motion for postconviction relief. The postconviction
court held an evidentiary hearing over three days on the matter.
After the hearing, the postconviction court denied Hardin’s motion.
In denying the motion, the postconviction court stated that the
twelve-year delay in the postconviction proceedings “did not amount
to a remedial due process violation . . . and, perhaps most
importantly, did not legally prejudice [Hardin].”
¶ 10 Hardin now appeals.
II. Due Process
¶ 11 Hardin argues that the postconviction court erred in
concluding that the proper remedy for the twelve-year delay in
resolving his postconviction claims, which violated his right to due
4 The judge, noting the “excruciating and often inexplicable delays”
in this case, stated that “nothing substantively has been done” in
this case since the December 2000 remand; “no hearing has ever
been held” on Hardin’s Crim. P. 35(c) motion; appointed counsel
had failed to supplement the motion during her nearly seven-year
tenure as Hardin’s attorney; and Hardin’s series of attorneys had
filed “endless motions for extensions of time,” several of which had
yet to be ruled upon.
5
process, was to finally address his Crim. P. 35(c) motion, rather
than grant him a new trial. In support of this position, Hardin
asserts that the delay impaired his ability to present his claims for
postconviction relief, as shown by the witnesses’ faded memories
and the unavailability of certain records. Hardin further argues
that we should analyze his due process claim concerning the
twelve-year delay in his postconviction proceedings in the same
manner as appellate delays — that is, under the Colorado Supreme
Court’s iteration of the factors set forth in Barker v. Wingo, 407 U.S.
514 (1972). See Hoang v. People, 2014 CO 27, ¶¶ 48-54. We
conclude that the postconviction court properly declined to grant
Hardin a new trial on this issue, but we respectfully disagree with
the postconviction court’s legal analysis.
A. Preservation, Standard of Review, and Applicable Law
¶ 12 The parties agree that this issue has been properly preserved.
¶ 13 This issue presents a mixed question of fact and law. See
People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010). We defer to
a postconviction court’s findings of fact if they are supported by
evidence in the record, and we review its conclusions of law de
novo. See Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007).
6
¶ 14 As a matter of first impression, we determine that due process
claims arising from delays in resolving motions for postconviction
relief should be analyzed under the balancing test set forth in
Barker, 407 U.S. at 530. Although this test was originally applied
to issues concerning a defendant’s Sixth Amendment right to a
speedy trial, courts have employed it in the context of due process
claims arising from delays in various legal proceedings. See, e.g.,
People v. Smith, 183 P.3d 726, 730 (Colo. App. 2008) (delay
regarding a probation revocation hearing); People v. Rios, 43 P.3d
726, 732 (Colo. App. 2001) (delay in appellate proceedings);
Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. Ct. 2010)
(delay in resolving a motion for postconviction relief). We see no
reasoned basis why the Barker factors should not inform our
analysis in the context of postconviction proceedings.
¶ 15 Under this test, a court should consider the following factors:
(1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his or her right; and (4) whether the
defendant suffered prejudice as a result of the delay. Rios, 43 P.3d
at 732; accord Barker, 407 U.S. at 530. The length of the delay
must be at least presumptively prejudicial to the defendant before
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further inquiry into the other factors is warranted. See Barker, 407
U.S. at 530. No single factor is determinative. Id. at 533. “Rather,
they are related factors and must be considered together with such
other circumstances as may be relevant.” Id.B. Analysis
¶ 16 Employing the Barker balancing test here, we defer to the
postconviction court’s factual findings and agree that the delay did
not violate Hardin’s right to due process in a manner entitling him
to a new trial. See Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e
can affirm on any grounds supported by the record.”).
1. Length of the Delay
¶ 17 Under these circumstances, we are satisfied that the twelve-
year delay was presumptively prejudicial and warrants further
inquiry into the other Barker factors. See Moody v. Corsentino, 843
P.2d 1355, 1364 (Colo. 1993) (finding an eight-year delay sufficient
to proceed to examining the other Barker factors); see also Smith,
183 P.3d at 730 (finding a six-year delay sufficient).
2. Reason for the Delay
¶ 18 The second factor “examines whether the government or the
criminal defendant is ‘more to blame’ for the delay.” Hoang, ¶ 50
8
(citation omitted). The postconviction court found that the
“negligence” of counsel and of the postconviction court were to
blame for the twelve-year delay. While any negligence of the
postconviction court and the prosecution’s counsel is likely
attributable to the government, see id. (attributing delays caused by
court reporters to the government), any negligence of Hardin’s
counsel is, unfortunately, attributable to him, even though his
attorneys were appointed by the court.5 See Vermont v. Brillon, 556
U.S. 81, 91 (2009) (“[D]elay caused by the defendant’s counsel is
also charged against the defendant . . . whether counsel is privately
retained or publicly assigned . . . .”); Glaser, 250 P.3d at 635.
Consequently, we conclude that this factor weighs in favor of
neither Hardin nor the government, as both inexcusably
contributed to the delay. See Barker, 407 U.S. at 531 (noting that
delays caused by negligence do not weigh as strongly against the
government as those caused intentionally).
5Any issues Hardin may have with the assistance of his appointed
counsel are not currently before us; they would be part of a
separate proceeding.
9
3. Assertion of Right
¶ 19 On the third factor, the record evidences Hardin’s numerous
letters and pro se motions expressing his desire to have his claims
for postconviction relief decided and his frustration with the
inaction of the court and of his attorneys. Thus, this factor weighs
in Hardin’s favor. See Smith, 183 P.3d at 730.
4. Prejudice
¶ 20 Regarding the final factor, we examine whether Hardin
suffered prejudice as a result of the delay, particularly whether the
delay impaired Hardin’s ability to prepare his case for
postconviction relief. See Barker, 407 U.S. at 532.
¶ 21 The record supports the postconviction court’s findings
regarding the evidence, in the form of tangible records and
witnesses, available to Hardin at the time of the evidentiary hearing.
The postconviction court found that only a “small part” of the
record was unavailable as a result of the delay, and it found the
witness testimony available to Hardin was sufficient for him to “fully
and completely” present his claims. Importantly, the court
reasoned that if anyone was prejudiced by Hardin’s trial attorney’s
“often dim memory” and the unavailability of certain evidence, it
10
was the prosecution. Hardin testified at the hearing and often
contradicted trial counsel’s testimony.
¶ 22 While the record shows that the witnesses’ memories had
dimmed to some degree by the time the evidentiary hearing was
held, it also shows that the witnesses were able to recall key details,
such as trial counsel’s strategic reason for declining to object to the
duplicity or trifurcation6 of the aggravated robbery charge. On this
record, we cannot say that Hardin was significantly prejudiced in
presenting his postconviction claims as a result of the delay.
Deferring to the postconviction court’s factual findings, we agree
that Hardin has not demonstrated prejudice resulting from the
delay sufficient to establish a due process violation.
¶ 23 Accordingly, because Hardin did not make an adequate
showing of prejudice, we agree with the postconviction court that
the proper remedy for this delay was to address the motion
6 Initially, the prosecution charged Hardin with a single count of
aggravated robbery for robbing three different men; this count gave
rise to a potential duplicity objection. The jury, however, convicted
Hardin of two separate counts of aggravated robbery and acquitted
him of a third aggravated robbery count regarding Fisher; the three
separate counts considered by the jury gave rise to a potential
trifurcation objection.
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posthaste, rather than to grant a new trial. See People v. Valdez,
178 P.3d 1269, 1279 (Colo. App. 2007).
¶ 24 Although we conclude that Hardin received the proper remedy
for the twelve-year delay, we emphasize that the conduct that
precipitated this lengthy delay is unacceptable in a legal system
that is designed to provide criminal defendants with reasonably
prompt resolutions of their postconviction motions. Under different
circumstances, such a delay in postconviction proceedings could
give rise to a cognizable due process violation. Cf. Burkett, 5 A.3d
at 1275-80 (analyzing a potential due process violation under the
Barker test in the context of postconviction proceedings).
III. Motion for Postconviction Relief
¶ 25 Hardin argues that the postconviction court erroneously
denied his motion for postconviction relief. We disagree.
A. Sufficient Factual Findings and Legal Conclusions
¶ 26 Hardin asserts that the postconviction court abused its
discretion by not making findings of fact or conclusions of law as to
whether his trial counsel was ineffective in failing to object to the
duplicity or the trifurcation of the aggravated robbery charge. Had
trial counsel properly objected and had the charge not been
12
trifurcated, Hardin argues, the jury likely would have been unable
to reach a unanimous verdict or would have acquitted him of
aggravated robbery and felony murder. At the very least, Hardin
asserts, this would have preserved the issue and allowed his
success on direct appeal. Consequently, Hardin asks us to remand
for further proceedings on this issue. We are unpersuaded.
1. Preservation, Standard of Review, and Applicable Law
¶ 27 The parties agree that this issue has been properly preserved.
¶ 28 In a Crim. P. 35(c) proceeding, a conviction is presumed valid
and the defendant bears the burden of proving his or her
entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We
defer to a postconviction court’s findings of fact if they are
supported by the record, and we review its conclusions of law de
novo. See id. at 1063.
¶ 29 To succeed on an ineffective assistance claim, a defendant
must show that counsel’s performance was constitutionally
deficient and that this deficient performance prejudiced the defense.
See Strickland v. Washington, 466 U.S. 668, 687 (1984); Dunlap,
173 P.3d at 1062. To satisfy the performance prong, the defendant
must show that counsel’s representation fell below an objective
13
standard of reasonableness. Dunlap, 173 P.3d at 1062. To satisfy
the prejudice prong, the defendant must show that there is a
reasonable probability that, but for the deficient performance, the
result of the proceeding would have been different. Id. at 1063;
People v. Washington, 2014 COA 41, ¶¶ 21-29. If a court
determines that a defendant has failed to prove either prong of the
Strickland test, it may deny the claim on that ground without
addressing the other prong. Strickland, 466 U.S. at 697; see also
People v. Naranjo, 840 P.2d 319, 324 (Colo. 1992).
¶ 30 When resolving a motion pursuant to Crim. P. 35(c), a court
must make findings of fact and conclusions of law sufficient to
explain the basis of its ruling. People v. Rodriguez, 209 P.3d 1151,
1157 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010). To
constitute an abuse of discretion, the postconviction court’s
decision must be shown to be manifestly arbitrary, unreasonable,
or unfair. See People v. White, 55 P.3d 220, 223 (Colo. App. 2002).
A court’s failure to exercise discretion can be an abuse of discretion.
People v. Darlington, 105 P.3d 230, 232 (Colo. 2005).
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2. Analysis
¶ 31 Because the postconviction court made factual findings
regarding the lack of prejudice Hardin suffered as a result of any
alleged ineffective assistance of trial counsel, we defer to those
findings and conclude that Hardin has not satisfied the prejudice
prong of the Strickland test. As a result, we see no need to remand
for further proceedings on this issue, and we affirm.
¶ 32 In its order denying Hardin’s motion, the postconviction court
made extensive findings, supported by the record, as to the strength
of the prosecution’s case and the challenges Hardin had to
overcome. The postconviction court placed the numerous
ineffective assistance allegations Hardin made in seeking
postconviction relief into three groups, and it addressed some
allegations generally and the rest specifically. Finally, the court
concluded that “none of the claimed instances of . . . ineffectiveness
would, separately or together, likely have had any impact on the
outcome of this case.”
¶ 33 Moreover, a division of this court found that Hardin had “failed
to demonstrate any prejudice resulting from the manner in which
the aggravated robberies were charged,” in part because of the trial
15
court’s uncontested power to allow constructive amendments or
variances of a criminal information at any time before the verdict.
See Hardin I, slip op. at 6. We find no support in the record for
Hardin’s speculative assertions that the trial court (1) would have
likely refused to allow the amendment or variance upon objection or
(2) abused its discretion in allowing this amendment or variance
regardless of whether trial counsel made the desired objection.
¶ 34 We conclude that, although the postconviction court only
addressed some of Hardin’s arguments specifically, it addressed all
of his arguments at least generally. Consequently, we conclude
that, whether implicitly or expressly, the postconviction court
denied all of Hardin’s arguments. Cf. Bd. of Cty. Comm’rs
v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (“When a trial court
does not rule on a motion, it may be considered implicitly denied or
such failure to rule may be considered harmless error.”) (citation
omitted).
¶ 35 We therefore determine that the postconviction court’s findings
of fact and conclusions of law sufficiently provided the basis of its
ruling — namely, that Hardin had failed to satisfy the prejudice
prong of Strickland. See People v. Breaman, 939 P.2d 1348, 1352
16
(Colo. 1997); see also People v. Chipman, 2015 COA 142, ¶¶ 88-85
(concluding that the postconviction court’s order was sufficient to
set forth the basis of its denial of a Crim. P. 35(c) motion where the
order was merely a motion from the prosecution asking the court to
deny the defendant’s motion with the word “granted,” the judge’s
initials, and the date written on it). The postconviction court’s lack
of specific factual findings on the arguments at issue, accordingly,
did not constitute an abuse of discretion.
¶ 36 Finally, assuming without deciding that trial counsel’s failures
to object constituted ineffective assistance, we defer to the
postconviction court’s factual findings, and we determine that
Hardin has not satisfied the prejudice prong of the Strickland test.
See Strickland, 466 U.S. at 697.
B. Waiver of the Right to Testify
¶ 37 Lastly, Hardin contends that the postconviction court erred in
finding that he validly waived his right to testify at trial. Hardin
notes that he initially expressed his desire to testify after the trial
court’s first advisement regarding his right to testify. Later that
same day, however, Hardin decided not to testify. Hardin claims
that trial counsel improperly interfered with his right to testify.
17
Also, according to Hardin, the trial court’s second advisement,
which incorporated the initial advisement by reference and was
made after he changed his mind about testifying, was insufficient.
Therefore, he argues, his waiver was not voluntary, knowing, or
intelligent.
1. Preservation, Standard of Review, and Applicable Law
¶ 38 The parties agree that this issue has been properly preserved.
¶ 39 In a Crim. P. 35(c) proceeding, a conviction is presumed valid
and the defendant bears the burden of proving his or her
entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We
defer to a postconviction court’s findings of fact if they are
supported by the record, and we review its conclusions of law de
novo. See id. at 1063. The postconviction court determines the
weight and credibility to give to the testimony of witnesses at a
Crim. P. 35(c) hearing. See id. at 1061-62.
¶ 40 To be valid, a defendant’s waiver of the right to testify must be
knowing, voluntary, and intelligent. People v. Curtis, 681 P.2d 504,
514 (Colo. 1984), modified, People v. Blehm, 983 P.2d 779 (Colo.
1999). To this end, a trial court should advise the defendant
outside the presence of the jury that (1) the defendant has the right
18
to testify; (2) if he or she wants to testify, no one can prevent him or
her from doing so; (3) if the defendant testifies, the prosecution will
be allowed to cross-examine him or her; (4) if the defendant has
been convicted of a felony, the prosecutor will be entitled to ask
about it; and (5) if the felony conviction is disclosed to the jury, the
jury can be instructed to consider it only as it bears on the
defendant’s credibility. Id. at 514-15. Regardless of whether the
trial court’s Curtis advisement contained the requisite five elements,
the essential task before the postconviction court is to determine
whether the defendant’s waiver of the fundamental constitutional
right to testify was knowing, voluntary, and intelligent. Moore v.
People, 2014 CO 8, ¶ 22.
2. Analysis
¶ 41 We conclude that the postconviction court rightly determined
that Hardin validly waived his right to testify.
¶ 42 The record supports the postconviction court’s findings that
the trial court initially gave Hardin a proper Curtis advisement that
included the five requisite elements and that, in turn, Hardin gave
coherent responses. During the second Curtis advisement, given
after Hardin decided not to testify, the trial court incorporated the
19
initial advisement that it had given mere hours earlier and
reiterated that Hardin had the right to testify in spite of his
attorney’s advice to the contrary. Hardin’s responses show that he
remained firm in his decision to forgo testifying. We defer to the
postconviction court’s factual findings and agree that Hardin’s
waiver was voluntary, knowing, and intelligent. See Dunlap, 173
P.3d at 1063.
¶ 43 Additionally, the record supports the finding that, although
trial counsel strongly advised Hardin against testifying, trial
counsel did not “intimidate” Hardin or otherwise improperly
interfere with his ability to choose whether to testify. The
postconviction court found trial counsel’s related testimony at the
evidentiary hearing more credible than Hardin’s. We may not
disregard this credibility determination. See id. at 1061-62.
¶ 44 Therefore, we agree that Hardin’s waiver was valid, and we
affirm.
IV. Conclusion
¶ 45 The order is affirmed.
JUDGE BERNARD and JUDGE RICHMAN concur.
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