Peo v. Houser , 2020 COA 128 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 27, 2020
2020COA128
No. 17CA0972, Peo v Houser — Criminal Procedure —
Postconviction Remedies — Conviction Obtained or Sentence
Imposed in Violation of the Constitution; Attorneys and Clients
— Ineffective Assistance of Counsel
A division of the court of appeals considers whether a district
court may deny without a hearing a defendant’s Crim. P. 35(c)
motion premised on trial counsel’s alleged ineffectiveness for not
presenting constitutional arguments that no appellate court in this
state has ever adopted. The majority holds that a Crim. P. 35(c)
motion fails to establish a meritorious claim of ineffective assistance
of counsel if it rests on an attorney’s failure to raise novel
arguments unsupported by then-existing precedent.
The partial dissent would remand based on its determination
that several of the defendant’s constitutional claims that underlie
his ineffective assistance of counsel claims have merit. The partial
dissent would hold that a defendant is entitled to a hearing on a
Crim. P. 35(c) claim that presents serious constitutional questions
regarding the validity of his conviction and sentence.
COLORADO COURT OF APPEALS 2020COA128
Court of Appeals No. 17CA0972
Douglas County District Court No. 06CR678
Honorable Paul A. King, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Charles Houser,
Defendant-Appellant.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE LIPINSKY
Fox, J., concurs
Berger, J., concurs in part and dissents in part
Prior Opinion Announced May 7, 2020, WITHDRAWN
Petition for Rehearing GRANTED in part, DENIED in part
Announced August 27, 2020
Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Timothy Charles Houser, appeals the district
court’s order denying his Crim. P. 35(c) motion for postconviction
relief. The postconviction court rejected Houser’s constitutional
arguments and his claims of ineffective assistance of counsel
without a hearing.
¶2 We affirm the postconviction court’s denial of Houser’s
constitutional arguments. We also affirm the portion of the
postconviction court’s order addressing Houser’s claim that his trial
counsel was ineffective for failing to raise novel arguments. We hold
that an attorney cannot be deemed ineffective solely because he or
she did not take positions unsupported or not “clearly
foreshadowed” by then-existing law. In addition, we affirm the
portion of the order holding that Houser is not entitled to a hearing
on his claim that his attorney was ineffective for failing to raise a
valid defense, because that claim fails as a matter of law. However,
we reverse the postconviction court’s denial of Houser’s claims that
his counsel was ineffective for not challenging the out-of-court
identification of Houser and the search warrant resting on such
identification, and not challenging the prosecution’s alleged
outrageous conduct in forcing his first attorney to withdraw. The
1
case is remanded to the postconviction court for a hearing on those
claims.
I. Background
¶3 Houser was convicted of patronizing a prostituted child in
violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old
A.J. testified at Houser’s trial that she earned money through
prostitution. She posted an advertisement on Craigslist in which
she identified herself as a twenty-year-old “playmate.” Houser
responded to A.J.’s posting. A.J. told police she went to Houser’s
“home in Douglas County where he paid her $240 to engage in
sexual acts with him.” People v. Houser, 2013 COA 11, ¶ 2, 337
P.3d 1238, 1243 (Houser I).
¶4 Houser was charged with patronizing a prostituted child.
Houser filed a pretrial notice of intent to assert an affirmative
defense under section 18-1-503.5, C.R.S. 2019, that Houser had
reasonably believed A.J. was over the age of eighteen. That statute
authorizes a reasonable mistake of age defense, although it does
not refer to the child prostitution statutes. The prosecution filed an
objection to the notice, arguing that section 18-7-407, C.R.S. 2019,
which expressly applies to the child prostitution statutes, precluded
2
Houser from raising such a defense. See § 18-7-407 (“In any
criminal prosecution under sections 18-7-402 to 18-7-407, it shall
be no defense that the defendant did not know the child’s age or
that he reasonably believed the child to be eighteen years of age or
older.”).
¶5 Following a hearing, the trial court found that section
18-7-407 bars defendants charged with patronizing a prostituted
child from presenting a reasonable mistake of age defense. The
court, therefore, prohibited Houser from arguing at trial that he
reasonably believed A.J. was at least eighteen years old.
¶6 A jury found Houser guilty of patronizing a prostituted child.
The trial court sentenced him to thirty days in jail, with ten days’
credit for time served, and sex offender intensive supervised
probation for an indeterminate term of ten years to life. Six years
later, after Houser failed to comply with the terms of his probation,
the trial court resentenced him to two years to life in the custody of
the Department of Corrections.
3
A. Houser’s Direct Appeal
¶7 Houser appealed his conviction. A division of this court
affirmed. Houser I, ¶ 1, 337 P.3d at 1243. Two of the holdings in
Houser I are relevant here.
¶8 First, the division affirmed the trial court’s ruling that Houser
was precluded from presenting a reasonable mistake of age defense.
Id. at ¶ 27, 337 P.3d at 1246. In comparing sections 18-1-503.5(1)
and 18-7-407, the Houser I division acknowledged that the former
“mandates that the court allow a reasonable belief defense when the
victim is at least fifteen years old, [while] the other expressly
prohibits such a defense.” Id. at ¶ 19, 337 P.3d at 1245. After
meticulously analyzing the legislative history of the two statutes,
the division determined that section 18-7-407 applies to the offense
of patronizing a prostituted child. Thus, defendants charged with
that offense cannot present a reasonable mistake of age defense, as
a matter of law. Id. at ¶¶ 18-27, 337 P.3d at 1245-46.
¶9 Second, the division declined to consider Houser’s
unpreserved argument that section 18-7-401(6), C.R.S. 2019, which
defines “prostitution by a child,” is unconstitutionally vague on its
face. Id. at ¶ 49, 337 P.3d at 1250. The division decided that
4
judicial economy did not “afford a basis” for departing from the
principle that a constitutional challenge may not be raised for the
first time on appeal. Id. at ¶¶ 28, 30, 49, 337 P.3d at 1246, 1247,
1250.
B. Houser’s Crim. P. 35(c) Motion
¶ 10 After the Houser I division affirmed his conviction, Houser filed
a Crim. P. 35(c) motion challenging the constitutionality of his
conviction and sentence, and alleging ineffective assistance of
counsel. The postconviction court denied Houser’s motion without
a hearing. It found that Houser I precluded Houser’s constitutional
arguments and, even if Houser could present such arguments, they
fail on the merits. It also held that Houser failed to establish
prejudice and deficient performance and, therefore, is not entitled to
a hearing on his ineffective assistance of counsel claims. This
appeal followed.
¶ 11 In his appeal, Houser largely reasserts the arguments he
presented in his Crim. P. 35(c) motion.
¶ 12 Houser raises four constitutional arguments: (1) the offense of
patronizing a prostituted child is unconstitutionally vague; (2)
section 18-7-401(6) violates Houser’s right to equal protection; (3)
5
section 18-7-407, which Houser I held precludes a defendant from
raising an affirmative defense of reasonable mistake of age in child
prostitution cases, violates Houser’s equal protection and due
process rights; and (4) section 18-1.3-1004(2)(a), C.R.S. 2019, the
Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is
unconstitutional as applied to Houser and, specifically, violates his
due process rights.
¶ 13 Further, Houser contends that his trial counsel was ineffective
in failing to (1) challenge the constitutionality of section 18-7-407;
(2) challenge the constitutionality of his sentence under SOLSA; (3)
argue that the offense of patronizing a prostituted child is void for
vagueness; (4) argue that Houser’s conviction under section
18-7-406(1) violates equal protection; (5) raise a valid defense; (6)
call a particular witness; and (7) challenge “the State’s outrageous
conduct.” Houser argues that the postconviction court erred in
denying him a hearing on the claims raised in his Crim. P. 35(c)
motion.
II. Houser’s Constitutional Claims
¶ 14 Before we address the merits of Houser’s constitutional
arguments, we first consider the People’s contention that they are
6
not properly before us. The People assert that, because Houser
raised only one constitutional argument in his direct appeal, we are
precluded from considering all of Houser’s constitutional claims
under Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) or, in the
alternative, under the doctrine of law of the case. We disagree that
Houser’s void for vagueness argument is not properly before us.
However, we agree with the People that we are precluded from
considering Houser’s other constitutional arguments under Crim. P.
35(c).
A. Although Houser’s Void for Vagueness Argument Is Properly
Before Us, We Do Not Consider Houser’s Other Constitutional
Arguments Under Crim. P. 35(c)
1. Crim. P. 35(c)(3)(VI) and Crim. P. 35(c)(3)(VII)
¶ 15 Crim. P. 35(c)(3)(VI) requires us to “deny any claim that was
raised and resolved in a prior appeal . . . .” We must also “deny any
claim that could have been presented in an appeal previously
brought or postconviction proceeding previously brought . . . .”
Crim. P. 35(c)(3)(VII); see Dunlap v. People, 173 P.3d 1054, 1062 n.4
(Colo. 2007).
¶ 16 As discussed above, Houser contended in his direct appeal
that the offense of patronizing a prostituted child is
7
unconstitutionally vague, although the division in Houser I declined
to consider the argument. Houser I, ¶¶ 28, 49, 337 P.3d at 1246,
1250. Houser’s void for vagueness argument, therefore, does not fit
within Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) because it was
raised, but not resolved, in Houser’s direct appeal. We therefore
address this argument on the merits. We do not, however, consider
Houser’s remaining constitutional arguments because Houser could
have raised them in his direct appeal but did not do so. See Crim.
P. 35(c)(3)(VII).
2. Law of the Case
¶ 17 “[T]he law of the case ‘is a rule of practice, based upon sound
policy that when an issue is once litigated and decided, that should
be the end of the matter.’” Verzuh v. Rouse, 660 P.2d 1301, 1303
(Colo. App. 1982) (quoting United States v. U.S. Smelting Ref. &
Mining Co., 339 U.S. 186, 198 (1950)). Houser argues that the law
of the case doctrine does not apply to his argument that section
18-7-406 is void for vagueness because the division in Houser I
“refused to address or resolve” the merits of that argument. We
agree. Because Houser’s void for vagueness argument was not
8
“litigated and decided” in Houser I, the law of the case doctrine does
not preclude us from addressing it.
B. The Offense of Patronizing a Prostituted Child Is Not
Unconstitutionally Vague
¶ 18 We disagree with Houser’s argument that the patronizing a
prostituted child statute is unconstitutionally vague.
¶ 19 We review the constitutionality of a statute de novo. Dean v.
People, 2016 CO 14, ¶ 8, 366 P.3d 593, 596. A statute is not void
for vagueness so long as it “permits persons of ordinary intelligence
to distinguish between permissible and illegal conduct and provides
workable standards for those responsible for the enforcement and
application of the law.” People v. West, 724 P.2d 623, 626 (Colo.
1986).
¶ 20 A person commits the crime of “patronizing a prostituted
child” by performing with a child one of the acts included in the
definition of “prostitution by a child.” § 18-7-401(6); § 18-7-406(1).
“[P]rostitution by a child” is defined as
either a child performing or offering or agreeing
to perform any act of sexual intercourse,
fellatio, cunnilingus, masturbation, or anal
intercourse with any person not the child’s
spouse in exchange for money or other thing of
value or any person performing or offering or
9
agreeing to perform any act of sexual
intercourse, fellatio, cunnilingus,
masturbation, or anal intercourse with any
child not the person’s spouse in exchange for
money or other thing of value.
§ 18-7-401(6).
¶ 21 Houser argues that, because the definition of “prostitution by
a child” includes certain actions performed by a child, but not by
the defendant, it is unclear how a “defendant can conform his
behavior to avoid criminal liability.” See § 18-7-401(6). For
example, he contends that a defendant could be found guilty of
patronizing a prostituted child merely because a child offered to
perform for the defendant one of the acts specified in section
18-7-401(6). Houser suggests that merely reading a child’s written
offer of prostitution, such as in a Craigslist posting, would be
sufficient to convict a defendant of patronizing a prostituted child.
¶ 22 But Houser’s reading of the statute is too broad. Houser was
not convicted of “prostitution by a child,” but of “patronizing a
prostituted child” under section 18-7-406(1)(a). Section
18-7-406(1)(a) requires that the defendant perform one of the
prohibited acts with a child. The plain language of the statute
10
makes clear that the actions of a child alone do not constitute an
offense under section 18-7-406(1)(a).
¶ 23 While we acknowledge that the language of section
18-7-406(1)(a) could be clearer, a statute “need not be drafted with
mathematical precision” to provide “fair warning of the proscribed
conduct.” People v. Becker, 759 P.2d 26, 31 (Colo. 1988). Thus, we
conclude that section 18-7-406(1) is not void for vagueness.
¶ 24 Houser also tacks on a cursory as-applied challenge at the
conclusion of his vagueness argument, suggesting that the use of
the word “offer[]” in section 18-7-401(6) “destroyed [his] defense”
because “the [prosecution] was able to argue Houser was guilty
regardless of whether [he had] sex” with A.J. We do not address
this argument because Houser presented it as a bald legal
proposition. Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19
(Colo. App. 2010) (“We will not consider a bald legal proposition
presented without argument or development.”). Further, we do not
consider Houser’s as-applied challenge because he did not present
such argument in his original Crim. P. 35(c) motion. See People v.
Salinas, 55 P.3d 268, 270 (Colo. App. 2002).
11
¶ 25 For these reasons, we conclude that Houser is not entitled to a
hearing on his void for vagueness claim based on the record and the
plain language of the statute. Thus, we affirm the postconviction
court’s summary denial of this claim.
III. Houser’s Ineffective Assistance of Counsel Claims
¶ 26 We next address whether Houser is entitled to a hearing on his
ineffective assistance of counsel claims. See Crim. P. 35(c)(3)(VIII)
(requiring that we “shall not deny a postconviction claim of
ineffective assistance of trial counsel on the ground that all or part
of the claim could have been raised on direct appeal”). We conclude
that Houser is entitled to a hearing on the merits of some, but not
all, of his ineffective assistance of counsel claims.
A. Applicable Law
1. Ineffective Assistance of Counsel Claims
¶ 27 A criminal defendant is constitutionally entitled to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). “The
purpose of this constitutional guarantee is to ensure the accused a
level of assistance calculated to produce a fair and just result in a
12
criminal prosecution.” People v. Garcia, 815 P.2d 937, 940 (Colo.
1991).
¶ 28 A defendant’s conviction may be reversed based on a claim of
ineffectiveness of counsel, but only if the defendant satisfies both
prongs of the test the United States Supreme Court adopted in
Strickland. Davis, 871 P.2d at 772. Under Strickland, a defendant
must demonstrate that (1) counsel’s performance was outside the
wide range of professionally competent assistance and (2) the
defendant was prejudiced by counsel’s substandard legal work.
Strickland, 466 U.S. at 687.
¶ 29 Prevailing on the first prong is complicated by the “wide range
of professionally competent assistance” counsel can provide. Id. at
690. “Because of the difficulties inherent in making the
evaluation,” we “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689.
¶ 30 Under the second prong of Strickland, “[a]n error by counsel,
even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691. Rather, the “defendant must show that
13
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different” to demonstrate prejudice. Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id.; see Hagos v. People, 2012 CO 63, ¶ 30, 288 P.3d
116, 123 (holding that the standard of proof to demonstrate
prejudice is that of a reasonable probability).
¶ 31 “It is the defendant’s burden to prove both Strickland prongs.”
People v. Corson, 2016 CO 33, ¶ 34, 379 P.3d 288, 295; see Holland
v. Jackson, 542 U.S. 649, 654 (2004) (holding that the defendant
has the burden of proving whether counsel’s performance was
deficient by a preponderance of the evidence); see also Hagos, ¶ 30,
288 P.3d at 123.
¶ 32 The Colorado cases interpreting Strickland have not
consistently articulated the defendant’s burden of proof to establish
prejudice resulting from counsel’s allegedly substandard legal work.
As then-Judge Gabriel explained, “[o]ur supreme court has issued
arguably conflicting pronouncements as to the proper burden of
proof for Strickland’s second prong.” People v. Washington, 2014
COA 41, ¶ 23, 345 P.3d 950, 955; compare Hagos, ¶ 16, 288 P.3d at
14
120 (applying a reasonable probability standard), and Garcia, 815
P.2d at 941 (same), with People v. Naranjo, 840 P.2d 319, 325 (Colo.
1992) (holding that the burden to prove prejudice is “by a
preponderance of the evidence”). While some divisions of this court
have followed Naranjo, see, e.g., People v. Garner, 2015 COA 174,
¶ 17, 381 P.3d 320, 324; People v. McDowell, 219 P.3d 332, 339
(Colo. App. 2009), we agree with the division in Washington that
“reasonable probability” is the appropriate standard of proof under
Strickland’s second prong. ¶ 23, 345 P.3d at 954-55.
2. Counsel’s Performance Is Not Rendered Deficient for Failing to
Present Novel Legal Arguments
¶ 33 “[N]umerous state and federal courts have concluded that
counsel’s failure to advance novel legal theories or arguments does
not constitute ineffective performance.” Ledbetter v. Comm’r of
Corr., 880 A.2d 160, 167 (Conn. 2005). Specifically, a lawyer does
not perform deficiently by “failing to raise novel arguments that are
unsupported by then-existing precedent.” United States v. Morris,
917 F.3d 818, 823 (4th Cir. 2019); see Snider v. United States, 908
F.3d 183, 192 (6th Cir. 2018) (“We have repeatedly held that
counsel is not ineffective for failing to predict developments in the
15
law, unless they were clearly foreshadowed by existing decisions.”);
see also Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013).
“Nor does counsel fall below Strickland’s standard of reasonableness
by failing to anticipate changes in the law, or to argue for an
extension of precedent.” Morris, 917 F.3d at 823. Even if a “wholly
novel claim” may have had merit in hindsight, counsel’s failure to
raise such a claim does not render his performance constitutionally
ineffective. Anderson v. United States, 393 F.3d 749, 754 (8th Cir.
2005).
¶ 34 This does not mean that an attorney cannot be ineffective
because he or she did not present an argument lacking decisive
precedent. “Even where the law is unsettled, . . . counsel must
raise a material objection or argument if ‘there is relevant authority
strongly suggesting’ that it is warranted.” Morris, 917 F.3d at 824
(quoting United States v. Carthorne, 878 F.3d 458, 466 (4th Cir.
2017)).
¶ 35 Further, an attorney’s “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690. This is for
good reason. “There are countless ways to provide effective
16
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Id.
at 689.
¶ 36 Strickland cautioned that “[i]t is all too tempting for a
defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable.” Id. The
Court noted that “[i]ntensive scrutiny of counsel . . . could dampen
the ardor and impair the independence of defense counsel,
discourage the acceptance of assigned cases, and undermine the
trust between attorney and client.” Id. at 690. Thus, “[c]ourts
should strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal justice
system suffers as a result.” Id. at 697.
¶ 37 For this reason, an attorney may perform effectively by
choosing “to maneuver within the existing law, declining to present
untested or rejected legal theories.” State v. McNeill, 700 N.E.2d
596, 607 (Ohio 1998); see Bailey v. State, 472 N.E.2d 1260, 1265
(Ind. 1985) (holding that counsel is not ineffective if he or she fails
17
to “change then-existing law”); see also Engle v. Isaac, 456 U.S.
107, 134 (1982) (“[T]he Constitution guarantees criminal
defendants only a fair trial and a competent attorney. It does not
insure that defense counsel will recognize and raise every
conceivable constitutional claim.”).
¶ 38 The partial dissent asserts that we are making new bright line
rule. But there is nothing novel about our holding. Our approach
reflects the well-established principle that, to prevail on a claim of
ineffective assistance of counsel, a defendant must show that his or
her counsel’s legal work fell outside the “wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690.
Indeed, no reported Colorado decision has held that an attorney
was ineffective because he or she did not attempt to break new legal
ground, and the partial dissent cites to no Colorado authority in
support of its expansive view of ineffectiveness.
¶ 39 The partial dissent asserts that
[i]f any of Houser’s constitutional claims that
underlie his ineffective assistance of counsel
claims have merit, he should be given an
opportunity to convince a district court judge,
based on evidence, including expert testimony,
that the failure to raise those meritorious
18
claims constituted deficient performance under
the first prong of Strickland.
Infra ¶ 93. But under this reasoning, a defendant would be entitled
to a hearing on any Crim. P. 35(c) claim for ineffective assistance
merely by arguing that counsel failed to raise a constitutional
argument with any potential merit. This would be true even where
the claim rests on arguments that would have been directly contrary
to the law at the time of trial and where counsel raised a reasonable
alternative argument.
¶ 40 The partial dissent’s interpretation of ineffectiveness would
also have significant repercussions for every attorney in this state,
as it would lower the bar for proving professional negligence. See
Rantz v. Kaufman, 109 P.3d 132, 139 (Colo. 2005) (explaining that
the “inquiry undertaken” in cases involving ineffective assistance
and cases involving legal malpractice “is identical and focuses on
what ordinary members of the legal profession would have done at
the time the action was taken”). If a criminal defense attorney can
be deemed ineffective for not urging a court to adopt a new
constitutional rule, then an attorney could be found professionally
negligent for making the same judgment call. Finding that an
19
attorney commits malpractice by not seeking this type of change in
the law would flood the courts with new professional negligence
lawsuits, as well as novel claims filed by attorneys practicing
defensive lawyering.
3. Denials of Crim. P. 35(c) Motions Without a Hearing
¶ 41 A defendant is entitled to a hearing on the merits of a Crim. P.
35 motion if he or she “assert[ed] facts that if true would provide a
basis for relief.” White v. Denver Dist. Court, 766 P.2d 632, 635
(Colo. 1988). A court, therefore, may only deny a Crim. P. 35(c)
motion without a hearing when “the motion and the files and record
of the case show to the satisfaction of the court that the defendant
is not entitled to relief.” Crim. P. 35(c)(3)(IV); see People v. Thomas,
867 P.2d 880, 890-91 (Colo. 1994). “Summary denial of a
postconviction relief motion is also appropriate if the claims raise
only an issue of law, or if the allegations, even if true, do not
provide a basis for relief.” People v. Venzor, 121 P.3d 260, 262
(Colo. App. 2005).
¶ 42 Thus, “[t]he denial of a claim of ineffective assistance of
counsel without a hearing is justified if, but only if, the existing
record establishes that the defendant’s allegations, even if proven
20
true, would fail to establish either constitutionally deficient
performance or prejudice.” People v. Chavez-Torres, 2016 COA
169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843;
see People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996).
¶ 43 “We review de novo a postconviction court’s denial of a Crim.
P. 35(c) motion without a hearing.” People v. McGlaughlin, 2018
COA 114, ¶ 25, 428 P.3d 691, 697.
B. The Failure to Raise Certain Novel Legal Arguments Did Not
Render Houser’s Counsel Ineffective
¶ 44 Houser contends that his counsel was ineffective by failing to
raise four arguments that were not established by precedent at the
time: the unconstitutionality of section 18-7-407, the
unconstitutionality of Houser’s sentence under SOLSA, section
18-7-406(1) is void for vagueness, and section 18-7-406(1) violates
equal protection.
¶ 45 We disagree and affirm the postconviction court’s denial of
these claims without a hearing because, as a matter of law,
Houser’s counsel was not ineffective for failing to raise novel
arguments.
21
1. Failure to Challenge the Constitutionality of Section 18-7-407
¶ 46 Houser argues that his counsel was ineffective because he
failed to challenge the constitutionality of section 18-7-407, which
precludes a defendant from raising a mistake of age defense in
cases involving offenses under the child prostitution statutes. We
disagree.
¶ 47 Houser does not cite, and, with one exception, we cannot find,
any reported case involving a challenge to the constitutionality of
section 18-7-407. See People v. Maloy, 2020 COA 71, ¶ 44, ___ P.3d
___, ___ (rejecting challenge to the constitutionality of section
18-7-407).
¶ 48 Significantly, at the time of Houser’s trial, no Colorado case
had yet clarified whether section 18-7-407 or section 18-1-503.5(1),
the more general statute allowing for a reasonable mistake of age
defense, applied to the offense of patronizing a prostituted child.
The issue was not resolved until Houser’s direct appeal. See
Houser I, ¶ 14, 337 P.3d at 1244 (concluding, “in a matter of first
impression, that section 18-7-407 prevents a defendant from
offering a reasonable belief in age defense to a charge of patronizing
a prostituted child”) (emphasis added); see also Maloy, ¶ 40, ___
22
P.3d at ___ (citing to Houser I for the proposition that, under
sections 18-1-503.5(1) and 18-7-407, the affirmative defense of
reasonable mistake of age is not available to a defendant charged
with patronizing a prostituted child).
¶ 49 At the pretrial hearing on this issue, Houser’s counsel argued
that section 18-1-503.5(1) applied to the offense of patronizing a
prostituted child and that Houser should therefore be allowed to
argue at trial that he reasonably believed A.J. was an adult. In
support of this argument, counsel cited to the legislative history of
each statute and presented a number of other arguments
supporting his position. Houser’s attorney did not challenge the
constitutionality of section 18-7-407, however. The prosecution
countered that section 18-7-407 applied based on rules of statutory
construction because it was more specific than section
18-1-503.5(1).
¶ 50 The postconviction court, which had also presided over the
hearing, said that, although it had ultimately concluded that
section 18-7-407 was “better law,” the argument of Houser’s
counsel had been “skillful and rational.”
23
¶ 51 Houser urges us to conclude that counsel’s failure to challenge
the constitutionality of section 18-7-407 rendered his performance
ineffective. Regardless of the persuasiveness of Houser’s
constitutional arguments, the issue before us is whether counsel’s
choice of argument rendered his performance deficient. Anderson,
393 F.3d at 754 (explaining that the question is not whether
counsel’s decision to choose an argument was “intelligent or
effective,” but whether the decision was an unreasonable one that
only an incompetent attorney would make); see also Strickland, 466
U.S. at 690 (“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable . . . .”).
¶ 52 We hold that, regardless of the facts Houser could present at a
Crim. P. 35(c) hearing, he could not prove that his counsel’s
performance was deficient on the grounds that the attorney did not
mount a novel constitutional challenge to section 18-7-407 when
counsel put forth a “skillful and rational” argument that the statute
did not apply.
¶ 53 In sum, Houser’s counsel was not ineffective for not
challenging the constitutionality of section 18-7-407 and instead
24
making the reasonable strategic choice to argue that the statute did
not apply to Houser. If successful, the argument would have
allowed Houser to raise the defense of reasonable mistake of age.
¶ 54 For these reasons, we affirm the postconviction court’s
decision to deny Houser a hearing on his claim that his counsel was
ineffective for failing to challenge the constitutionality of section
18-7-407.
2. Failure to Challenge the Constitutionality of Houser’s Sentence
Under SOLSA
¶ 55 Houser contends that his counsel’s failure to challenge the
constitutionality of SOLSA as applied to Houser rendered counsel’s
performance deficient. We disagree.
¶ 56 As Houser acknowledges, divisions of this court — including
the divisions that decided the issue before his trial — have rejected
every facial challenge to the constitutionality of SOLSA. See, e.g.,
People v. Knobee, 2020 COA 7, ¶ 63, ___ P.3d ___, ___; People v.
Sabell, 2018 COA 85, ¶ 47, 452 P.3d 91, 100; People v. Relaford,
2016 COA 99, ¶ 72, 409 P.3d 490, 501; People v. Torrez, 2013 COA
37, ¶ 88, 316 P.3d 25, 40; People v. Collins, 250 P.3d 668, 679
(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.
25
2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). Until
April 2020, divisions of this court had also rejected every as-applied
challenge to the constitutionality of the statute. See Maloy, ¶ 35,
___ P.3d at ___ (ruling in favor of the defendant’s as-applied equal
protection challenge to a section of SOLSA for the first time in a
reported case); see also Sabell, ¶ 45, 452 P.3d at 100 (rejecting an
as-applied constitutional challenge to SOLSA because the division
was not persuaded to depart from the numerous decisions of
previous divisions of this court affirming the constitutionality of
SOLSA); People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003)
(holding that SOLSA was not unconstitutional as applied to the
defendant); cf. People in Interest of T.B., 2019 COA 89, ¶ 1, ___ P.3d
___, ___ (holding that the automatic lifetime registration
requirement contained in the Colorado Sex Offender Registration
Act is unconstitutional as applied to juveniles) (cert. granted Feb. 3,
2020).
¶ 57 Rather than raise an argument unsupported by Colorado
precedent, Houser’s counsel asserted that Houser was not subject
to SOLSA because he reasonably believed A.J. was an adult, asked
the court to consider that A.J. had misled Houser about her age,
26
noted that the legislature did not intend that SOLSA punish
someone like Houser who reasonably believed he was patronizing
an adult prostitute, and argued that the sex offender treatment
required under SOLSA was unnecessary based on Houser’s
psychological evaluations.
¶ 58 Because the Colorado appellate courts had universally rejected
constitutional challenges to SOLSA at the time of Houser’s trial, he
cannot establish he was prejudiced by counsel’s failure to raise
such a challenge. The record therefore establishes that Houser
cannot make a successful ineffective assistance of counsel claim
based on his counsel’s failure to attack the constitutionality of
SOLSA. See Chavez-Torres, ¶ 31, 410 P.3d at 696.
¶ 59 We therefore affirm the postconviction court’s denial of
Houser’s request for a hearing on his claim that his counsel was
ineffective for failing to challenge the constitutionality of SOLSA.
3. Failing to Argue that Section 18-7-406(1) Is Void for
Vagueness
¶ 60 Houser contends that his counsel was ineffective for failing to
argue that the offense of patronizing a prostituted child is void for
vagueness. We disagree.
27
¶ 61 As discussed in Part II.B above, we conclude, as a matter of
first impression, that the offense of patronizing a prostituted child
under section 18-7-406(1) is not unconstitutionally vague.
Houser’s counsel, therefore, did not perform deficiently by failing to
raise this novel argument. See Morris, 917 F.3d at 823. Moreover,
because we conclude that section 18-7-406(1) is not
unconstitutionally vague, Houser cannot demonstrate a reasonable
probability that, but for his counsel’s failure to argue vagueness,
“the result of the proceeding would have been different.” Strickland,
466 U.S. at 694.
¶ 62 Thus, we affirm the postconviction court’s denial of Houser’s
request for a hearing on his claim that his counsel was ineffective
for failing to attack section 18-7-406(1) as unconstitutionally vague.
4. Failure to Argue that Houser’s Conviction Under Section
18-7-406(1) Violates Equal Protection
¶ 63 Houser argues that his counsel was ineffective because he did
not present an equal protection argument. Houser asserts that he
was denied equal protection because, even though his conduct fell
within the meaning of “soliciting for child prostitution” under
section 18-7-402, C.R.S. 2019, he was charged under section
28
18-7-406(1) for patronizing a prostituted child, which carries a
harsher penalty. Houser alleges that his counsel “recognized the
offer and agreement language in the ‘prostitution by a child’
definition was problematic. Yet, his counsel didn’t try to litigate the
constitutionality of this language.” But the issue is not whether
such an equal protection argument could have merit. It is whether
counsel could be found ineffective for choosing not to present the
argument. We disagree with Houser that his counsel’s decision
rendered him ineffective.
¶ 64 The partial dissent asserts that Houser is nonetheless entitled
to a hearing on his claim that his counsel was ineffective for not
launching a constitutional attack on section 18-7-406(1), even
though no such attack had succeeded in any reported decision at
the time of Houser’s trial. The partial dissent relies on the division’s
determination in Maloy that the defendant was denied equal
protection because, as applied to the defendant’s conduct,
patronizing a prostituted child proscribed the same conduct as
pandering of a child and inducement of child prostitution, even
though the latter offenses carry lighter sentences than the former
offense. Id. (The division in Maloy also concluded that, based on
29
the facts of the case, solicitation does not proscribe the same
conduct as patronizing a prostituted child.)
¶ 65 Had Maloy predated Houser’s trial and Houser’s counsel
nevertheless failed to raise an as-applied equal protection challenge
to 18-7-406(1)(a), Houser’s ineffective assistance claim may well
have warranted a hearing to determine whether Maloy sufficiently
foreshadowed a change in the law that would have impacted the
outcome of Houser’s case. But the division did not decide Maloy
until more than ten years after Houser’s trial.
¶ 66 A defense attorney is not ineffective because he or she did not
raise an untested constitutional challenge to a criminal charge that
is not clearly foreshadowed by then-existing case law. See
Anderson, 393 F.3d at 754; see also Snider, 908 F.3d at 192.
¶ 67 Houser does not point us to any foreshadowing in Colorado
case law that would have required his counsel to argue that section
18-7-406(1) violates equal protection. Instead, Houser merely cites
to cases holding that unrelated statutes violate equal protection.
For example, Houser relies on People v. Marcy, 628 P.2d 69, 71-72
(Colo. 1981), in which the Colorado Supreme Court held that two
murder statutes were “not sufficiently distinguishable . . . to
30
warrant the substantial differential in penalty authorized by the
statutory scheme.” Houser therefore is not entitled to relief for
ineffective assistance of counsel because his counsel did not
present a novel equal protection argument not “clearly
foreshadowed” under existing law. See Venzor, 121 P.3d at 262.
¶ 68 Thus, we affirm the postconviction court’s denial without a
hearing of Houser’s ineffective assistance claim based on his
counsel’s failure to present an equal protection argument.
C. Houser Is Not Entitled to a Hearing on His Claim that His
Counsel Failed to Raise a Valid Defense
¶ 69 Houser further contends that he is entitled to a hearing on his
claim that his counsel was ineffective by offering a theory of defense
that admitted Houser’s guilt without his consent. Houser argues
that this tactic demonstrated that his counsel was ignorant of
sections 18-7-406(1)(a) and 18-7-401(6). We disagree and conclude
that his counsel’s theory of defense did not, as a matter of law,
admit Houser’s guilt. See Venzor, 121 P.3d at 262 (“Summary
denial of a postconviction relief motion is . . . appropriate if the
claims raise only an issue of law . . . .”).
31
¶ 70 Houser’s counsel argued that, although Houser arranged for
A.J. to visit his home, they did not have sex because A.J. refused to
produce an ID after Houser demanded that she prove she was at
least eighteen. According to this theory, Houser was prepared to
pay A.J. for sex, but only if she first convinced him that she was at
least eighteen. Defense counsel admitted that Houser agreed to
“pay [A.J.] for her time,” but argued Houser did not pay her for sex.
Instead, Houser’s counsel asserted that Houser paid A.J. because
he knew “her pimp [was] in the car” and he feared for his safety if
she walked out his door without cash in hand.
¶ 71 At the time of Houser’s trial, few Colorado appellate decisions
addressed the offense of patronizing a prostituted child. See People
v. Madden, 111 P.3d 452, 457 (Colo. 2005); People v. Holland, 708
P.2d 119, 119 n.2 (Colo. 1985). And only one of the cases —
Madden — analyzed section 18-7-406(1)(a). See Madden, 111 P.3d
at 457.
¶ 72 In Madden, the court reversed a defendant’s conviction for
attempted patronizing of a prostituted child because “there was no
evidence presented at trial that [the defendant] attempted to give
anything of value to [the child] or to any other person in exchange
32
for sex [with the child].” Id. at 460. The court held that
“‘patronizing a prostituted child’ requires an exchange of something
of value” for “sex with a child.” Id. at 459.
¶ 73 While a division of this court later concluded in Houser I that a
“person need not perform a sexual act to be guilty of patronizing a
prostituted child,” the case law at the time of Houser’s trial
permitted an argument that a defendant could not be found liable
for patronizing a prostituted child if he did not perform one of the
prohibited acts with her. Houser I, ¶ 69, 337 P.3d at 1253.
Counsel’s defense, although unpersuasive to the jury, did not
amount to a guilty plea under Madden.
¶ 74 Thus, we deny Houser’s claim that he is entitled to a hearing
on his claim that his counsel was ineffective for not raising a valid
defense. See Crim. P. 35(c)(3)(IV); see also Thomas, 867 P.2d at
890-91.
D. Houser Is Entitled to a Hearing on the Merits of His Remaining
Claims
1. Failure to Challenge Out-of-Court Identification
¶ 75 Houser argues that he is entitled to a hearing on his claim
that his trial counsel was ineffective for failing to sufficiently
33
challenge A.J.’s out-of-court identification of him and to file a
motion to suppress the search warrant for his home premised on
that identification. We agree.
¶ 76 Houser alleges that, instead of conducting a photo lineup,
Mike Ryan, a Denver Police Department detective, drove with A.J. to
Houser’s residence, improperly showed her only a single photo, and
asked, “[I]s this the guy?” The affidavit filed in support of the
warrant used to search Houser’s home bolsters Houser’s challenge
to the photo identification and search of his home. It states that
Ryan “obtained a photo of [Houser], which he showed to [A.J.].” But
it can also be interpreted to support the prosecution’s assertion
that Ryan later told another officer, months after the search, that
he “showed A.J. six photos, including [Houser’s] Colorado DMV
photo,” one at a time.
¶ 77 Houser’s first attorney filed a motion to suppress A.J.’s out-of-
court identification as impermissibly suggestive, but later requested
that the motion “be tabled for the time being until Ryan shows up
to testify.” Houser’s second attorney withdrew the motion to
suppress during a hearing on the issue and explained to the court
that, after discussing the photo identification with the prosecutor,
34
he was satisfied — based on the prosecutor’s reputation — there
were no issues related to the lineup.
¶ 78 Houser argues he was prejudiced because his counsel never
called Ryan to testify whether he showed A.J. a single photo —
which may have been impermissibly suggestive and could have
invalidated the warrant used to search his home — or six
photographs, as the prosecution contended.
¶ 79 Because this allegation, if true, could support a claim that his
counsel’s conduct was deficient for failing to challenge a potentially
improper out-of-court identification based upon a prosecutor’s
reputation, Houser is entitled to a hearing on the merits of this
claim. See White, 766 P.2d at 635. Thus, we remand this claim to
the postconviction court for a hearing on the merits.
2. Failure to Challenge the State’s Alleged Outrageous Conduct
¶ 80 Houser contends that he is entitled to a hearing on his claim
that his counsel was ineffective for failing to challenge the
prosecution’s alleged “outrageous conduct.” Houser argues that the
prosecution “committed outrageous conduct by pretending to be the
victim in the case, intruding on Houser’s attorney[-]client
relationship . . . and interfering with Houser’s right to counsel.” He
35
alleges, and the record reflects, that the lead police officer in the
case, Dea Aragon, investigated Charles Leidner, Houser’s first
attorney, for alleged witness intimidation of A.J.
¶ 81 The People contend that Aragon initiated the investigation
after A.J.’s mother contacted the Douglas County Sheriff’s Office to
report a threatening call from Leidner and his investigator, in which
the men told her that, if A.J. testified, they would “drag [her] over
the coals, embarrass her, and eat her alive.” The men also allegedly
threatened to charge A.J. and her mother with federal tax evasion.
¶ 82 Following Aragon’s investigation, a special prosecutor filed a
motion to disqualify Leidner from further representation of Houser.
Houser, then represented by conflict-free counsel, requested that
Leidner remain his attorney. Although the court denied the
prosecutor’s motion to disqualify Leidner, Leidner later moved to
withdraw as Houser’s counsel. The trial court granted the motion
and Scott Reisch succeeded Leidner as Houser’s lawyer.
¶ 83 Houser argues he was prejudiced because Reisch failed to
argue that the prosecution’s conduct in allegedly pressuring Leidner
to withdraw from the case was outrageous. Houser asserts that,
“[h]ad Reisch successfully litigated this claim, it could have resulted
36
in the dismissal of [the] charge[] against Houser” because the
remedy for a prosecutor’s outrageous conduct is dismissal of the
charges. See United States v. Russell, 411 U.S. 423, 431 (1973).
The postconviction court denied Houser’s claim because it
concluded that the prosecution’s conduct was not outrageous.
¶ 84 The proper question, however, is whether Houser’s allegation,
if true, would provide a basis for an ineffective assistance claim. We
conclude it would and, therefore, remand the claim to the
postconviction court for a hearing on the merits.
IV. Conclusion
¶ 85 The postconviction court’s denial of Houser’s Crim. P. 35(c)
motion is affirmed except as to Houser’s right to a hearing on his
claims that his counsel was ineffective for (a) not challenging A.J.’s
out-of-court identification of Houser and the search warrant resting
on such identification and (b) not challenging the prosecution’s
alleged outrageous conduct. The case is remanded to the
postconviction court for a hearing on those claims.
JUDGE FOX concurs.
JUDGE BERGER concurs in part and dissents in part.
37
JUDGE BERGER, concurring in part and dissenting in part.
¶ 86 This is the majority’s central holding: “We hold that an
attorney cannot be deemed ineffective solely because he or she did
not take positions unsupported or not ‘clearly foreshadowed’ by
then-existing law.” Supra ¶ 2. This new bright line rule is not
consistent with Crim. P. 35(c). Unless reversed by the supreme
court, this new rule will have long-lasting consequences that are at
odds with the language of Crim. P. 35(c), the beneficent purposes
underlying that rule, and the bedrock constitutional guarantee of
reasonably effective assistance of counsel.
I. Postconviction Claims
¶ 87 In his postconviction motion and on this appeal, Houser
claims that his counsel was ineffective for failing to raise four
constitutional arguments: (1) his conviction violated his equal
protection rights; (2) his conviction should be vacated because the
patronizing a prostituted child statute is unconstitutionally vague;
(3) the Colorado Sex Offender Lifetime Supervision Act of 1998
(SOLSA) and section 18-7-407, C.R.S. 2019, as applied to him,
violated his substantive due process rights; and (4) his sentence
under SOLSA violated his rights under the Eighth Amendment and
38
article II, section 20 of the Colorado Constitution.1 Although the
majority grants limited relief to Houser and remands for an
evidentiary hearing on certain other ineffective assistance claims, it
rejects, without a hearing and as a matter of law, every one of the
claims described above.
¶ 88 If any one of the constitutional claims underpinning his
ineffective assistance of counsel claims fails, the related ineffective
assistance claim necessarily fails as well. In that event, it would be
impossible to satisfy the prejudice requirement under Strickland v.
Washington, 466 U.S. 668 (1984).
¶ 89 But if any of Houser’s underlying constitutional claims are
meritorious, then there is a reasonable probability that, but for
counsel’s failure to raise them, the outcome of the trial would have
been different. Strickland, 466 U.S. at 694-95. Thus, if any of
Houser’s underlying constitutional claims would have succeeded,
he must be given the opportunity, at an evidentiary hearing, to
1 Houser also advances other claims, including direct constitutional
claims. I agree with the majority that all but one of the direct
constitutional claims are successive because they could have been
brought on direct appeal. Crim. P. 35(c)(3)(VII). I also agree with
the majority’s disposition of those claims not addressed in this
dissent.
39
prove that his counsel’s performance was deficient. Instead, the
majority’s newly created rule bars all of these claims.
II. The Majority’s New Rule Regarding Constitutional Claims is
Inconsistent with Existing Law, Unworkable, and Unwarranted
¶ 90 The majority’s new rule cuts directly against the express
language of Crim. P. 35(c)(2)(I), which states that “every person
convicted of a crime is entitled as a matter of right to make
application for postconviction review upon the grounds . . . [t]hat
the conviction was obtained or sentence imposed in violation of the
Constitution or laws of the United States or the constitution or laws
of this state.”
¶ 91 Postconviction remedies are designed “to prevent
constitutional injustice.” Edwards v. People, 129 P.3d 977, 982
(Colo. 2006) (quoting People v. Rodriguez, 914 P.2d 230, 252 (Colo.
1996)). A rule that would bar consideration of the merits of
Houser’s ineffective assistance claims is inconsistent with the
broad, remedial purposes of Crim. P. 35(c).
¶ 92 It is further inconsistent with the Sixth Amendment’s
guarantee to criminal defendants of reasonably effective assistance
of counsel. U.S. Const. amend. VI. A defendant is not entitled to
40
the best criminal lawyer in a given jurisdiction; a defendant is
entitled to the “reasonably effective assistance” of counsel.
Strickland, 466 U.S. at 687. From the established proposition that
a defendant is entitled only to reasonably effective counsel, the
majority reasons that in every case a lawyer’s failure to raise claims
that have not been accepted or “clearly foreshadowed” in that
jurisdiction (or in a controlling jurisdiction) can never constitute
ineffective assistance. While the majority’s insistence on not raising
the constitutionally required level of performance may help courts
address frivolous claims more efficiently, the cure is worse than the
disease.
¶ 93 First, and contrary to the majority opinion, it is entirely
conceivable that the failure to raise a meritorious constitutional
claim could be objectively unreasonable, even if such claim had not
been previously road-mapped for counsel in a controlling, published
decision. The determination of whether counsel’s failure to raise
such a claim was reasonable “present[s] mixed questions of law and
fact.” Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). And the
Colorado Supreme Court has recognized that appellate courts will
rarely be in the position to decide such inherently factual questions.
41
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). While sometimes
the trial record will clearly demonstrate lack of prejudice, “[u]nless
the issue was expressly litigated . . . , it is far less likely that a trial
record will demonstrate that potentially prejudicial acts or
omissions of counsel were not only strategic choices but were ones
that were reasonable in light of the law and facts.” Id. Thus, we
cannot reject such inherently factual claims as a matter of law.
¶ 94 Second, an allegation of ineffective assistance premised on
counsel’s failure to raise a constitutional attack on the conviction
does not without more (actually, much more) establish ineffective
assistance. The majority states that anything less than its
categorical prohibition would result in a situation in which “a
defendant would be entitled to a hearing on any Crim. P. 35(c) claim
for ineffective assistance merely by arguing that counsel failed to
raise a constitutional argument with any potential merit.” Supra
¶ 34. But that is not the case.
¶ 95 In order to be entitled to a hearing, the defendant must first
establish that the underlying constitutional claim is meritorious
and that, but for counsel’s failure to raise it, the outcome of the
proceeding would have been different. Strickland, 466 U.S. at
42
694-95. If a controlling court such as the United States Supreme
Court or the Colorado Supreme Court has not accepted the
constitutional theory, the task is even more difficult, and in the vast
majority of cases, the claim will fail. But the fact that the burden is
daunting, and that most such challenges will fail for any number of
reasons, is not a warrant for creating, as the majority has done, a
rule that prohibits, as a matter of law, all such challenges.
¶ 96 Once the defendant has established the merits of the
underlying constitutional claim, then the defendant must meet the
high bar of establishing that counsel was deficient in failing to raise
that claim. Id. at 687-91. As discussed above, this determination
is properly the subject of a hearing.
¶ 97 The majority contends that this approach would “lower the bar
for proving professional negligence.” Supra ¶ 36. Apart from the
fact that this is simply irrelevant to the question of whether Houser
received effective assistance of counsel, it is untrue. Even when the
defendant has established the merits of the underlying claim and a
reasonable probability that the failure to raise the claim affected the
outcome of the proceedings, the defendant must still establish, as
43
always, that the failure to raise such claim “fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688.
¶ 98 To reach its overbroad holding, the majority relies on non-
controlling cases from other jurisdictions purportedly holding that a
“lawyer does not perform deficiently by ‘failing to raise novel
arguments that are unsupported by then-existing precedent.’”
Supra ¶ 30 (quoting United States v. Morris, 917 F.3d 818, 823 (4th
Cir. 2019)). But unlike the majority, many of these jurisdictions
have also recognized the limits of such a broad rule and the
nuances associated with these ineffective assistance challenges.
For example, in Morris, the court stated that “counsel sometimes
will be required to make arguments ‘even in the absence of decisive
precedent.’” Morris, 917 F.3d at 823-24 (quoting United States v.
Carthorne, 878 F.3d 458, 465-66 (4th Cir. 2017)). Indeed, unlike
the majority, the Seventh Circuit has recognized that a lack of
precedent supporting a defendant’s ineffective assistance claim is
“only half the picture,” and that a “dearth” of precedent should have
indicated to defense counsel that the facts and circumstances of
that case were “unusual” and distinguishable from existing case
44
law. Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013)
(emphasis added).
¶ 99 If any of Houser’s constitutional claims that underlie his
ineffective assistance of counsel claims have merit, he should be
given an opportunity to convince a district court judge, based on
evidence, including expert testimony, that the failure to raise those
meritorious claims constituted deficient performance under the first
prong of Strickland.
¶ 100 I now proceed to analyze the constitutional claims that Houser
claims should have been advanced on his behalf but were not.2
III. Equal Protection
¶ 101 Houser claims that he was deprived of equal protection of the
law when he was punished for violating the statute that prohibits
patronizing a child prostitute when that same conduct is also
criminalized by another statute that carries a much lower penalty.
2 Because the constitutional questions that are determinative of
whether Houser can prove prejudice under the second prong of
Strickland v. Washington, 466 U.S. 668 (1984), are questions of law,
there is no reason to remand to the postconviction court to resolve
them. This court stands in as good a position as the postconviction
court in that respect.
45
¶ 102 This is not a novel constitutional claim. The Colorado
Supreme Court has repeatedly held that “Colorado’s guarantee of
equal protection is violated where two criminal statutes proscribe
identical conduct, yet one punishes that conduct more harshly.”
Dean v. People, 2016 CO 14, ¶ 14.
¶ 103 More specifically, Houser argues that his conviction violates
his equal protection rights under the Colorado Constitution because
the patronizing statute criminalizes the same conduct as the
soliciting a child prostitute statute, while imposing a harsher
penalty.3
¶ 104 The statutes, however, differ in a key respect. Patronizing
requires that the child prostitute actually perform, offer, or agree to
perform a sex act in exchange for money. § 18-7-406(1)(a), C.R.S.
2019; see § 18-7-401(6), (7), C.R.S. 2019. Soliciting does not. § 18-
3Unlike the United States Constitution, the Colorado Constitution
contains no express equal protection clause, but the Colorado
Supreme Court has construed the due process clause of the
Colorado Constitution to imply a similar guarantee. Dean v. People,
2016 CO 14, ¶ 11. Colorado courts have construed the equal
protection guarantees under the Colorado Constitution more
broadly than those available under the United States Constitution.
People v. Stewart, 55 P.3d 107, 114 (Colo. 2002) (citing United
States v. Batchelder, 442 U.S. 114 (1979)).
46
7-402(1)(a), C.R.S. 2019. Thus, a defendant is punished more
severely under the patronizing statute for successfully inducing the
child to respond to an offer for money in exchange for sex.4 “The
general assembly may establish more severe penalties for acts that
it believes have graver consequences, even if the differences are only
a matter of degree.” People v. Stewart, 55 P.3d 107, 114-15 (Colo.
2002). Accordingly, I would reject this specific claim.
¶ 105 But, as analyzed in the recent case of People v. Maloy, 2020
COA 71, other child prostitution statutes prohibit the same conduct
engaged in by Houser but impose non-SOLSA penalties. A person
patronizes a child prostitute in violation of section 18-7-406(1)(a) if
such person “[e]ngages in an act which is prostitution of a child,” as
defined in section 18-7-401(7), or an act that is prostitution “by a
child,” as defined in section 18-7-401(6). In Maloy, the defendant
was convicted of patronizing a child prostitute under the
“prostitution of a child” definition for inducing a child to perform
certain sexual acts (with third persons, not the defendant), or
4“[A]ctual performance of a sexual act is not necessary; a mere offer
or agreement to perform is sufficient, provided money has been
promised.” People v. Houser, 2013 COA 11, ¶ 84.
47
inducing her to allow others to perform such acts, by coercion or
threat or intimidation or in exchange for money or other thing of
value. Id. at ¶ 21 (citing § 18-7-401(7)). The division concluded
that the conviction violated equal protection principles under the
Colorado Constitution because section 18-7-403(1)(a), C.R.S. 2019
(pandering of a child), and section 18-7-405.5, C.R.S. 2019
(inducement of child prostitution), as applied to the defendant,
criminalize the same conduct but do not require an indeterminate
life sentence under SOLSA. Id. at ¶ 21.
¶ 106 Houser was convicted of patronizing under the “prostitution by
a child” subsection, but this does not change the result of the equal
protection analysis.
“Prostitution by a child” means either a child
performing or offering or agreeing to perform
any act of sexual intercourse, fellatio,
cunnilingus, masturbation, or anal intercourse
with any person not the child’s spouse in
exchange for money or other thing of value or
any person performing or offering or agreeing
to perform any act of sexual intercourse,
fellatio, cunnilingus, masturbation, or anal
intercourse with any child not the person’s
spouse in exchange for money or other thing of
value.
§ 18-7-401(6).
48
¶ 107 This language is, admittedly, confusing. How can someone
other than a child prostitute engage in an act that is “prostitution
by a child?” As I understand it, section 18-7-406(1)(a) and section
18-7-401(6) together prohibit any action that results in an act of
prostitution by a child. In this case, the jury found that Houser
engaged in some act that resulted in a child offering or agreeing to
perform a sex act in exchange for money.5 Like in Maloy, this
conduct could also form the basis for non-SOLSA charges under the
pandering and inducement statutes.
¶ 108 The pandering statute prohibits someone, “for money or other
thing of value,” from “[i]nducing a child by menacing or criminal
intimidation to commit prostitution.”6 § 18-7-403(1)(a). Admittedly,
Houser did not act “for money or other thing of value.” Nor did he
realize an act of child prostitution through “menacing or
intimidation.” But, for the reasons described in Maloy, these
distinctions are meaningless for purposes of the equal protection
5 On this record, we cannot know whether the jury also concluded
that Houser had sex with A.J.
6 Pandering, under section 18-7-403(1)(a), C.R.S. 2019, is a class 2
felony, but it is not an offense subject to punishment under the
Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA).
§§ 18-1.3-1003(5)(a), -1004(1)(a), C.R.S. 2019.
49
analysis. Maloy, ¶¶ 27-29. Houser should not be subjected to
greater punishment when his conviction required proof of fewer
elements and his conduct was less blameworthy than that of
someone convicted of pandering. Id. at ¶¶ 28-29.
¶ 109 A person commits inducement of child prostitution if such
person, “by word or action, other than [by menacing or criminal
intimidation], induces a child to engage in an act which is
prostitution by a child.” § 18-7-405.5. As discussed above, that is
exactly the conduct Houser was convicted of here.
¶ 110 Accordingly, and consistent with the analysis in Maloy,
Houser’s conviction and sentence for patronizing a child prostitute
violated his right to equal protection of the law. If, but only if,
Houser can establish that his counsel’s performance was deficient,
he is entitled to relief.
IV. Substantive Due Process
¶ 111 SOLSA and section 18-7-407, as applied to Houser, violate his
substantive due process rights.
¶ 112 This, again, is not a novel claim. Indeed, variations of this
argument are raised in almost every appeal to this court in which a
SOLSA sentence was imposed. While other divisions of this court
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have rejected variations of this argument, they have not addressed
the facts and circumstances presented here.
¶ 113 Various divisions of this court have rejected facial substantive
due process challenges to SOLSA.7 However, many did so without
independent analysis, relying only on the reasoning of earlier
divisions. People v. Knobee, 2020 COA 7, ¶ 63; People v. Sabell,
2018 COA 85; People v. Relaford, 2016 COA 99, ¶ 72; People v.
Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250 P.3d 668, 679
(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.
2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). The
lead cases, People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App.
2003), and People v. Strean, 74 P.3d 387, 393 (Colo. App. 2002),
addressed only facial challenges.8 The Colorado Supreme Court
has never weighed in on these questions. Accordingly, Houser’s
counsel could have raised the narrow, as-applied challenge that
7 Some of these cases, e.g., People v. Sabell, 2018 COA 85, purport
to address an as-applied challenge to SOLSA, but they do not
engage in any as-applied analysis, and instead simply rely on the
decisions of earlier divisions to reject the claim.
8 People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003),
addresses as-applied challenges to SOLSA, but not an as-applied
substantive due process challenge.
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Houser now raises on appeal without departing from the broader
holdings in Oglethorpe and Strean.
¶ 114 “[T]he touchstone of due process is protection of the individual
against arbitrary action of government,” County of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998) (citation omitted), and “sanctions
which are downright irrational,” Hudson v. United States, 522 U.S.
93, 103 (1997). Substantive due process prohibits the government
from engaging in conduct that shocks the conscience or interferes
with rights implicit in the concept of ordered liberty. People v.
Garlotte, 958 P.2d 469, 474 (Colo. App. 1997). When no
fundamental right is implicated, substantive due process requires
that legislation bear a rational relationship to a legitimate
governmental interest. People v. Zinn, 843 P.2d 1351, 1353 (Colo.
1993).
¶ 115 Under SOLSA and section 18-7-407, which prohibited Houser
from raising the defense that he believed A.J. was of age at trial,
Houser was convicted of the felony of patronizing a child prostitute
and sentenced to an indeterminate life sentence without any proof
that he had intended to patronize a child prostitute. If he had only
been found guilty of patronizing an adult prostitute, he would have
52
been convicted of less than a misdemeanor — a class 1 petty
offense. § 18-7-205, C.R.S. 2006. Thus, section 18-7-407 imposed
strict liability for an element of the offense that transformed
Houser’s crime from a petty offense to a felony bearing an
indeterminate life sentence.
¶ 116 In my view, imposing an indeterminate life sentence without
any proof that Houser actually intended to commit the element of
the crime requiring the indeterminate life sentence both shocks the
conscience and offends notions of ordered liberty.9
¶ 117 Moreover, under the facts of this case, the relationship
between Houser’s conduct that was proved at trial and the
indeterminate life sentence exceeds the bounds of rationality and
thus the protections of the Due Process Clause. SOLSA’s
indeterminate sentencing requirement is based on the presumption
9 Questions regarding the constitutionality of strict liability criminal
statutes that impose substantial penalties are complex, and many
related questions remain unresolved by both the United States
Supreme Court and the Colorado Supreme Court. See People v.
Manzo, 144 P.3d 551, 554-59 (Colo. 2006) (recognizing that public
welfare offenses are “a constitutionally permissible type of strict
liability offense”); Alan C. Michaels, Constitutional Innocence, 112
Harv. L. Rev. 828, 834 (1999). But here, the issue is quite narrow
and does not require an extensive analysis of the limits of the
General Assembly’s power to define strict liability crimes.
53
that the “majority” of sex offenders, if untreated, are likely to
reoffend. § 18-1.3-1001, C.R.S. 2019. But in this case, there has
never been an adjudication that Houser intended to patronize a
child prostitute. Nevertheless, SOLSA presumes that he is likely to
again act as a sex offender if untreated and requires an
indeterminate life sentence or, in the discretion of the district court,
indeterminate probation. Without proof of intent, there is no
rational relationship between the facts proved at trial and the
sentence required by SOLSA.
¶ 118 Irrespective of whether the Due Process Clause limits a state’s
power to define a strict liability defense that imposes a life sentence,
here SOLSA and section 18-7-407 create the perverse and patently
irrational result by which a defendant cannot defend himself at trial
by arguing that he never intended to commit the offense, but then
can only get out of prison and off parole if he admits to that same
offense.10 The Due Process Clause demands more than such a
Kafkaesque result.
10This is materially different from the ordinary SOLSA situation in
which a defendant is convicted of an offense that prescribes mens
rea components while the defendant maintains his innocence.
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V. Grossly Disproportionate Punishment
¶ 119 Houser argues that his counsel was ineffective at sentencing
because his counsel failed to argue that an indeterminate sentence
was “not proportionate to his actual criminal conduct” in violation
of the Eighth Amendment. The effective life sentence imposed on
Houser raises obvious proportionality concerns. The majority does
not specifically refer to this claim but presumably rejects it based
on its newly formulated rule.
¶ 120 While I agree with Houser that his sentence creates the
inference of gross disproportionality, I cannot, on this record,
conclude that his sentence violates the Eighth Amendment. That
determination requires evidence to be presented to the
postconviction court.
¶ 121 The legislature’s authority to prescribe punishment “is limited
by the principle of proportionality that is embedded in the
constitutional prohibition against the infliction of cruel and
unusual punishment.” Wells-Yates v. People, 2019 CO 90M, ¶ 1.
The Eighth Amendment prohibits “not only barbaric punishments,
Here, no court has ever adjudicated whether Houser ever had any
intent to patronize a child prostitute.
55
but also sentences that are disproportionate to the crime
committed.”11 Id. at ¶ 5 (quoting Solem v. Helm, 463 U.S. 277, 284
(1983)). “Simply put . . . the punishment should fit the crime.” Id.
at ¶ 1.
¶ 122 In analyzing whether the punishment fits the crime, courts
must first weigh the gravity or seriousness of the offense and the
harshness of the penalty and determine whether this comparison
leads to an inference of gross disproportionality (abbreviated
proportionality review). Id. at ¶¶ 11-15. If it does, then courts must
consider the sentences for other crimes in the same jurisdiction and
sentences for the same crime in other jurisdictions (extended
proportionality review). Id. at ¶¶ 15-17.
A. The Gravity or Seriousness of the Offense
¶ 123 To weigh the gravity or seriousness of the offense, courts must
consider “the harm caused or threatened to the victim or society,”
as well as the “culpability of the offender.” Id. at ¶ 12 (quoting
Solem, 463 U.S. at 292).12 Without a doubt, patronizing a child
11 Article II, section 20 of the Colorado Constitution is identical to
the Eighth Amendment.
12 Unlike some crimes, patronizing a child prostitute is not per se
grave or serious. Wells-Yates v. People, 2019 CO 90M, ¶ 65.
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prostitute threatens serious harm to both the victim and society.
The defendant’s moral or criminal culpability, however, depends
largely on the defendant’s state of mind. See Solem, 463 U.S. at
293; Wells-Yates, ¶ 12.
¶ 124 In this case, we know only that Houser intended to patronize a
prostitute. Because section 18-7-407 precluded Houser from
raising the defense that he did not know A.J. was underage, the
jury did not reach the question of whether Houser knew A.J. was
underage, and we cannot reach that conclusion. While this
conduct is illegal, it is only a petty offense, whereas patronizing a
child prostitute is a class 3 felony punishable by an indeterminate
sentence in prison.
B. The Harshness of the Penalty
¶ 125 Houser’s indeterminate life sentence is one of the harshest
sentences available under Colorado’s criminal code because it is, in
effect, a life sentence. While we must consider Houser’s parole
eligibility in weighing the severity of the sentence, Wells-Yates, ¶ 14,
we must also acknowledge the sentence’s upper limit and the
realities of a SOLSA sentence.
57
¶ 126 In the equal protection context, courts “weigh[] the relative
harshness of a penalty by looking principally to the overall potential
term of imprisonment, not the timing of parole eligibility.” Dean,
¶ 28. I see no reason not to do so here, and the upper limit is
incarceration for the rest of Houser’s natural life.
¶ 127 Furthermore, under SOLSA, a sex offender may not be
released on parole unless the parole board determines that the
offender “has successfully progressed in treatment.” § 18-1.3-
1006(1)(a), C.R.S. 2019. If Houser continues to maintain, as he has
since he was charged, that he intended only to patronize an adult
prostitute — a claim that has never been adjudicated by any court
— and has no sexual interest in children, it is difficult to see how he
could ever successfully progress in treatment and thus be released
from prison.
¶ 128 Weighing these factors, I conclude that sentencing Houser to
an indeterminate life sentence without establishing that he
intended to patronize a child prostitute leads to an inference of
gross disproportionality between the gravity or seriousness of the
crime and the harshness of the penalty.
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¶ 129 On this record, however, I cannot complete the second step of
the analysis mandated by Wells-Yates. “In the absence of a need for
. . . a detailed comparison of sentences imposed for . . . crimes in
this or other jurisdictions, an appellate court is as well positioned
as a trial court to conduct a proportionality review.” People v.
Gaskins, 825 P.2d 30, 37-38 (Colo. 1992), abrogated on other
grounds by Wells-Yates, 2019 CO 90M. Under Wells-Yates, ¶ 17,
the determination of whether Houser’s sentence constitutes
unconstitutionally excessive punishment requires an analysis of the
sentences for other crimes in the same jurisdiction and sentences
for the same crime in other jurisdictions — facts not in the record
before us.
VI. Conclusion
¶ 130 For these reasons, I would remand to the postconviction court
for a determination of whether Houser’s counsel was deficient for
failing to raise equal protection and substantive due process
challenges to his conviction and sentence. If the postconviction
court determined based on evidence presented at a hearing that
counsel provided ineffective assistance in failing to raise these
claims, Houser would be constitutionally entitled to relief.
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¶ 131 On the Eighth Amendment claim, I would remand to the
postconviction court to conduct an extended proportionality review.
If the postconviction court then concluded that the sentence was
unconstitutionally disproportionate, it would be required to hold a
hearing to determine whether Houser’s counsel was deficient for
failing to raise an Eighth Amendment claim.
¶ 132 I respectfully dissent from the majority’s contrary disposition.
60