People v. Higgins , 413 P.3d 298 ( 2017 )

COLORADO COURT OF APPEALS 2017COA57
Court of Appeals No. 15CA0128
Jefferson County District Court No. 13CR1081
Honorable Christie B. Phillips, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Breck Torrell Higgins,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Welling and Davidson*, JJ., concur
Announced May 4, 2017
Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jessica A. Scotella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Defendant, Breck Torrell Higgins, filed a Crim. P. 35(c) motion
and requested counsel to represent him on his motion. The district
court sent a copy of Higgins’s motion to the prosecution and, after
receiving the prosecution’s response, denied the motion without a
hearing and without hearing from the public defender’s office. But,
the court was required under Crim. P. 35(c)(3)(V) to allow the public
defender’s office to respond. Because the court departed from Crim.
P. 35(c)(3)(V)’s procedure, we reverse and remand its order without
considering the merits of Higgins’s postconviction claims.
I. Higgins’s Crim. P. 35(c) Motion
¶2 Higgins pleaded guilty to felony menacing, and the court
sentenced him to serve eighteen months in prison. During the next
two months, he filed three unsuccessful motions for a reduced
sentence, one through his lawyer and two pro se. A few months
later, he filed the Crim. P. 35(c) motion, which included several
claims of ineffective assistance of counsel.
II. Discussion
¶3 Higgins contends that the district court erred by departing
from the procedure outlined by Crim. P. 35(c)(3)(IV) and (V) and that
the court’s error requires reversal. We agree.
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A. Crim. P. 35(c)(3)(IV) and (V)
¶4 Crim. P. 35(c)(3)(IV) permits a district court to deny a
defendant’s Crim. P. 35(c) motion without a hearing if the motion,
the files, and the record clearly show that the defendant is not
entitled to relief. See Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003).
¶5 If the court does not summarily deny the motion under Crim.
P. 35(c)(3)(IV), however, subsection (c)(3)(V) requires the court to
take specific actions. The “court shall cause a complete copy of
[the] motion to be served on the prosecuting attorney,” and if the
defendant has requested counsel in the motion, “the court shall
cause a complete copy of [the] motion to be served on the Public
Defender.” Crim. P. 35(c)(3)(V). The public defender’s office then
has forty-nine days to inform the court whether it intends to
represent the defendant, “identify whether any conflict exists,
request any additional time needed to investigate, and add any
claims the Public Defender finds to have arguable merit.” Id. The
court must then order the prosecution to respond and the
defendant to reply. Id. Once the parties have filed their pleadings,
“the court shall grant a prompt hearing on the motion unless, based
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on the pleadings, the court finds that it is appropriate to enter a
ruling containing written findings of fact and conclusions of law.”
Id.
B. Preservation and Standard of Review
¶6 The parties dispute whether Higgins preserved his argument
that the district court erred by sending his motion to the prosecutor
without also sending it to the public defender’s office. Higgins
contends that he preserved this issue by requesting counsel in his
motion; the People respond that he also needed to object once the
court sent the motion to the prosecution but not the public
defender’s office.
¶7 We agree with Higgins.
¶8 A defendant preserves an issue for appeal if he or she alerts
the trial court to the particular issue. People v. Cordova, 293 P.3d
114, 120 (Colo. App. 2011).
¶9 Under Crim. P. 35(c)(3)(V), if the court does not summarily
deny the defendant’s motion, “the court shall cause a complete
copy” of the motion to be served on the Public Defender if “the
defendant has requested counsel be appointed in the motion.” By
requesting counsel in his motion, then, Higgins sufficiently alerted
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the court to the issue he pursues on appeal. See Crim. P.
35(c)(3)(V).
¶ 10 Even so, the People rely on People v. Davis, 2012 COA 14,
¶ 13, in which the division noted that the defendant “requested
appointment of an attorney and objected to the court’s failure to
allow the Public Defender to respond.” Although the defendant in
Davis happened to have requested counsel and also objected to the
court’s action, we do not read Davis to hold that a defendant must
take both of those steps to preserve a claim that the district court
erred by not sending the defendant’s motion to the public defender’s
office under Crim. P. 35(c)(3)(V). And, given Crim. P. 35(c)(3)(V)’s
clear, mandatory language, we hold that a defendant need only
request appointed counsel in a Crim. P. 35(c) motion to preserve
such a claim.
¶ 11 We review de novo a district court’s decision to deny a Crim. P.
35(c) motion without a hearing. People v. Lopez, 2015 COA 45,
¶ 68. We also review de novo interpretations of the rules of criminal
procedure. People v. Corson, 2016 CO 33, ¶ 44.
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C. Analysis
¶ 12 In Davis, the defendant filed a Crim. P. 35(c) motion in which
he requested counsel. Davis, ¶ 4. The district court ordered the
prosecution to respond but did not serve a copy of the defendant’s
motion on the public defender’s office. Id. at ¶ 5. The prosecution
filed a response with an affidavit attached. Id. at ¶ 10. After
reviewing the response, the district court denied the defendant’s
motion without permitting the public defender’s office to respond.
Id. at ¶ 5. The Davis division reversed, agreeing “that the district
court erred by referring [the defendant’s] motion to the prosecution
without also sending a copy to the Public Defender in accordance
with the procedures outlined in Crim. P. 35(c)(3)(IV) and (V).” Id. at
¶ 7.
¶ 13 Just as in Davis, the district court in this case did not
summarily deny the postconviction motion. Instead, it sent a copy
of the motion to the prosecution, but not to the public defender’s
office, and denied the postconviction motion after reviewing the
prosecution’s response. We conclude that the district court erred
by departing from the mandatory procedure outlined by Crim. P.
35(c)(3)(IV) and (V). See id.
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¶ 14 The People contend, however, that Crim. P. 35(c)(3)(V) did not
require the district court to send a copy of Higgins’s motion to the
public defender’s office. The People again rely on Davis, noting that
the district court in that case considered not only the prosecution’s
response but also the attached affidavit. Id. at ¶ 10. Considering
the affidavit, the People contend, triggered the district court’s duty
in Davis to serve a copy of the defendant’s motion on the public
defender’s office. And, because the district court here did not
consider evidence (such as an affidavit) outside of the record, the
People maintain that the district court had no duty to serve
Higgins’s motion on the public defender’s office. The People’s
position finds support in Davis: “the requirement of service on the
Public Defender is triggered when the court finds that it is
necessary to consider matters outside of the motion, files, and
record of the case (here, an affidavit that was provided by the
government and was not part of the underlying proceedings).” Id. at
¶ 12.
¶ 15 But, Crim. P. 35(c)(3)(V)’s plain language ultimately forecloses
the People’s argument. Under the rule, the event that triggers a
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district court’s duty to comply with Crim. P. 35(c)(3)(V)’s procedure
is its decision not to summarily deny the defendant’s motion.
¶ 16 We next consider whether the district court’s error was
harmless. See id. at ¶ 13. An error is not harmless, as relevant
here, if it affected the fairness of the district court proceedings. See
Hagos v. People, 2012 CO 63, ¶ 12.
¶ 17 The People contend that the district court’s error was harmless
because the merits of Higgins’s claims did not entitle him to relief
and also because his motion was successive. We do not consider
the merits of Higgins’s claims to determine whether the court’s error
was harmless. This is so because harmlessness can never be
measured by the face of the motion because the Public Defender
can add claims to the defendant’s motion. See Crim. P. 35(c)(3)(V)
(“In such response, the Public Defender shall . . . add any claims
the Public Defender finds to have arguable merit.”). That is, the
district court’s decision not to send Higgins’s postconviction motion
to the public defender’s office deprived Higgins of the opportunity to
have the public defender’s office respond or add any claims with
arguable merit. See Davis, ¶ 14. “Because the procedures
mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit,
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we must conclude that the court’s failure to comply may have
prejudiced” Higgins. Id.
¶ 18 And, we disagree with the People’s claim that Higgins’s Crim.
P. 35(c) motion was successive. A district court must deny any
Crim. P. 35(c) claim that was raised and resolved, or that could
have been raised, in a prior appeal or postconviction proceeding.
Crim. P. 35(c)(3)(VI), (VII). The People contend that Higgins raised,
or could have raised, his current ineffective assistance claims in his
third Crim. P. 35(b) motion. The People correctly point out that
Higgins’s third Rule 35(b) motion cited his lawyer’s alleged
ineffective assistance as grounds to reduce his sentence. Indeed,
the district court even “determine[d] the motion [was] properly
within” Crim. P. 35(c). We do not adopt that determination,
however. Although the motion alleged that Higgins received
ineffective assistance, the only remedy that it sought was a reduced
sentence — which Crim. P. 35(b), not (c), authorizes. So, Higgins’s
current Crim. P. 35(c) claims are not successive.
¶ 19 We recognize that the parties dispute the merits of Higgins’s
claims and whether the allegations in his motion warranted a
hearing. We therefore emphasize that our discussion reaches only
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the district court’s procedure; we express no opinion about the
merits of Higgins’s claims, about whether his claims require a
hearing, or about whether Higgins will be entitled to postconviction
counsel. See Davis, ¶ 15; see also Silva v. People, 156 P.3d 1164,
1168 (Colo. 2007) (concluding that “the court and the state public
defender’s office must find that a defendant’s Crim. P. 35(c) motion
has arguable merit before the statutory right to post-conviction
counsel is triggered”).
III. Conclusion
¶ 20 The order denying Higgins’s motion is reversed, and the case is
remanded with directions for the district court to proceed according
to Crim. P. 35(c)(3)(V).
JUDGE WELLING and JUDGE DAVIDSON concur.
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