22CA1905 Peo v McCoy 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1905
Boulder County District Court No. 11CR126
Honorable Norma A. Sierra, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David Keith McCoy,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE GROVE
Fox and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee
David Keith McCoy, Pro Se
1
¶ 1 Defendant, David Keith McCoy, appeals the district court’s
summary denial of his second Crim. P. 35(c) postconviction motion.
We reverse the district court’s order and remand for further
proceedings.
I. Relevant Facts and Procedural History
¶ 2 McCoy’s appeal comes before us following his 2012 conviction
and his first postconviction proceeding that began in 2017. This
second postconviction proceeding began in 2021.
A. Plea, Sentencing, and Direct Appeal
¶ 3 In 2012, McCoy pleaded guilty to conspiracy under the
Colorado Organized Crime Control Act and possession with intent
to manufacture or distribute between 25 and 450 grams of a
schedule II controlled substance. In exchange for his guilty plea,
the prosecution agreed to dismiss the remaining twenty-seven
counts, including a special offender count and five habitual
criminal counts. The parties stipulated that the court would
sentence McCoy to thirty-five years in prison, and the court
sentenced him in accordance with that agreement.
¶ 4 McCoy directly appealed his sentence, arguing that the district
court did not make sufficient factual findings to support it and that
2
the court should not have relied on his prior convictions to impose
an aggravated range sentence without an accompanying jury
finding. A division of this court affirmed McCoy’s sentence. People
v. McCoy, (Colo. App. No. 12CA2651, July 17, 2014) (not published
pursuant to C.A.R. 35(f)).
B. First Postconviction Proceeding
¶ 5 In 2017,
1
McCoy’s retained counsel, Thomas E. Henry, filed a
Crim. P. 35(c) motion that argued plea counsel had been
constitutionally ineffective. Specifically, Henry’s motion contended
that plea counsel had
• enlisted a codefendant and McCoy’s sister to convince
McCoy to take the plea offer;
• misled McCoy about the extent of her investigation,
including telling him that (1) the dispatch and traffic stop
recordings had been lost when she had never asked the
1
McCoy originally filed a pro se Crim. P. 35(c) motion in 2015 but
asked the district court to either stay the proceeding or withdraw
the 2015 motion without prejudice so that he could hire private
counsel. The district court permitted McCoy to withdraw his 2015
motion and granted him leave to refile a Crim. P. 35(c) motion so
long as it was timely.
3
prosecution for them and (2) the codefendant and
McCoy’s sister had no evidence that could help his case;
• misled McCoy about the legal arguments available to
him, including telling him that (1) there was no need to
file pretrial motions or raise evidentiary issues and
(2) there was no defense strategy that could benefit him
based on her review of the discovery;
• misadvised McCoy that (1) it was not important that he
did not have counsel at the preliminary hearing and (2)
the prosecution did not have to disclose the identity of
the confidential informants;
• failed to discuss with McCoy a possible conflict of interest
based on her prior representation of his ex-girlfriend;
• failed to advise McCoy that the sentence in the plea
agreement was in the aggravated range and drug
treatment would not be available in prison until 2020
due to the lengthy sentence;
• told McCoy and others that McCoy had nine prior
felonies for the sale and distribution of extensive
quantities of drugs — when he only had six prior felonies
4
involving smaller quantities of drugs — and that, as a
result, he would be unable to raise the issue of
proportionality of his sentence;
• failed to advise McCoy that waiving a presentence report
would affect his classification in prison;
• misadvised McCoy that the fact that other defendants in
the same jurisdiction had received lower sentences on
identical charges would have no impact on his plea
bargain or sentencing; and
• told McCoy that proposed amendments to the felony drug
statutes and the new habitual criminal statute would not
apply to him.
¶ 6 However, despite citing the appropriate case law, Henry’s
motion alleged no facts to establish that McCoy was prejudiced by
plea counsel’s alleged deficient performance, as required under
Strickland v. Washington, 466 U.S. 668, 687 (1984) (ineffective
assistance of counsel claim requires showing (1) that counsel’s
performance was deficient and (2) that counsel’s deficient
performance prejudiced the defendant).
5
¶ 7 The prosecution pointed out this omission in its response to
Henry’s motion, arguing that the district court should deny the
motion without a hearing because McCoy had failed to allege
prejudice — namely, that the outcome of the plea process would
have been different had McCoy received competent assistance from
plea counsel. After the prosecution highlighted this flaw, Henry
filed a reply stating that what McCoy would have done differently
had plea counsel been effective was “a difficult question to answer
today.” The reply alleged only generally that McCoy “would have
selected a different course of action had counsel made a concerted
effort” to effectively advise and represent him.
¶ 8 The district court denied McCoy’s 2017 petition without a
hearing because it failed to allege prejudice. In its denial order, the
court noted that Henry’s motion contained “not one sentence that
attempt[ed] to prove that the outcome of the case was prejudiced.”
“In each of the claims listed in the 35(c) motion,” the court
explained, McCoy “fail[ed] to state that the outcome of the case was
altered by [plea] counsel’s allegedly deficient assistance.” The court
also emphasized that “[w]riting that a question is difficult and then
not answering it certainly d[id] not satisfy” McCoy’s burden, but
6
instead demonstrated “very little effort to show that the outcome of
the proceeding would have been different if [plea] counsel had been
effective.”
¶ 9 McCoy appealed the postconviction court’s order denying his
claims without a hearing. A division of this court affirmed that
order, concluding that “McCoy failed to make any factual
allegations to establish that he was prejudiced by plea counsel’s
alleged deficient performance.” People v. McCoy, slip op. at ¶ 19
(Colo. App. No. 17CA0590, Feb. 13, 2020) (not published pursuant
to C.A.R. 35(e)).
C. Second Postconviction Proceeding
¶ 10 In 2021, McCoy filed a pro se Crim. P. 35(c) motion alleging
that he had received ineffective assistance from Henry in connection
with the 2017 petition. McCoy alleged that Henry had
• been unauthorized to practice law in Colorado when he
represented McCoy because his license was inactive;
• failed to allege facts, which were readily available, that
would have established that plea counsel’s performance
prejudiced McCoy and that would have prevented the
7
denial of McCoy’s first postconviction petition without a
hearing; and
• failed to raise four additional meritorious claims: (1) that
plea counsel failed to independently test the substances
that McCoy was prosecuted for possessing; (2) that plea
counsel misadvised McCoy about his sentencing
exposure; (3) that plea counsel failed to investigate the
validity of McCoy’s arrest after promising to do so; and
(4) that McCoy’s speedy trial rights were violated.
¶ 11 One year after McCoy filed his second postconviction petition,
the district court denied it without a hearing. In its order, the court
found no merit to McCoy’s allegation that Henry was unauthorized
to practice law in Colorado when he represented McCoy.
Apparently consulting Office of Attorney Regulation Counsel (OARC)
records for Henry, the court referenced disciplinary proceedings
from 2007, 2009, and 2015 but determined that those proceedings
either predated Henry’s representation of McCoy or “did not serve to
suspend . . . Henry’s bar license.”
¶ 12 With respect to McCoy’s contention that Henry was ineffective
because he failed to allege facts establishing that plea counsel’s
8
deficient performance prejudiced McCoy, the district court reframed
McCoy’s argument. According to the district court, McCoy instead
asserted that the denial of his first postconviction motion was “per
se proof” of Henry’s deficient performance. The court rejected this
argument, reasoning that it proved too much, because “such logic
would grant every non-prevailing party in a case the opportunity to
present an ineffective assistance of counsel claim.” Moreover, the
court concluded that Henry’s motion “develop[ed] the legal
requirement that prejudice to a defendant be demonstrated . . . and
the motion assert[ed] . . . a disadvantage to . . . McCoy in the plea
bargaining process due to [plea counsel’s] performance.”
¶ 13 Meanwhile, the district court cursorily addressed only one of
the four claims that McCoy asserted had merit and should have
been raised by Henry: that plea counsel misadvised McCoy about
his sentencing exposure. The court found that McCoy’s argument
that he would have proceeded to trial had he known he faced a
potential sentence of forty-eight years rather than ninety-six years
did not account for the possibility of consecutive terms or his
exposure to longer sentencing based on his prior convictions. The
9
court also stated that Henry raised McCoy’s arguments in the first
postconviction petition.
¶ 14 The district court ultimately concluded that “McCoy ha[d] not
demonstrated that . . . Henry’s performance in presenting the [first
postconviction petition] was deficient” or that McCoy would have
obtained postconviction relief had Henry been effective. McCoy
appeals.
II. Timeliness
¶ 15 As an initial matter, all postconviction challenges to a
conviction for a non-class 1 felony such as McCoy’s must be raised
within three years of the conviction becoming final. § 16-5-402(1),
C.R.S. 2023. If a defendant directly appeals a conviction, and it is
affirmed, the conviction is final for purposes of section 16-5-402
when the mandate issues in that appeal. People v. Hampton, 857
P.2d 441, 444-45 (Colo. App. 1992), aff’d, 876 P.2d 1236 (Colo.
1994).
¶ 16 But because ineffective assistance of postconviction counsel
claims cannot be asserted until the conclusion of the prior
postconviction proceeding and section 16-5-402(1) does not, by its
terms, allow additional time beyond its three-year period for the
10
completion of such a postconviction proceeding, such claims will
often be filed outside of the three-year window prescribed by section
16-5-402. See People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002).
However, an untimely postconviction claim may be considered if the
court finds that the “failure to seek relief within the applicable time
period was the result of circumstances amounting to justifiable
excuse or excusable neglect.” § 16-5-402(2)(d). Thus, a court must
assess the timeliness of such an ineffective assistance of
postconviction counsel claim under the rubric of justifiable excuse
¶ 17 We review de novo whether the postconviction petition alleged
facts that, if true, would constitute justifiable excuse or excusable
neglect so as to entitle the defendant to a hearing on that question.
People v. Chavez-Torres, 2019 CO 59, ¶ 11.
¶ 18 McCoy’s direct appeal of his conviction was affirmed and
became final when the mandate issued on February 9, 2015. Thus,
all postconviction challenges to his conviction had to be raised by
February 9, 2018, unless McCoy could show justifiable excuse or
excusable neglect. § 16-5-402(2)(d). McCoy filed his second
postconviction petition on September 10, 2021, necessitating a
11
showing of justifiable excuse or excusable neglect. However, rather
than assessing the timeliness of McCoy’s second postconviction
petition under the rubric of justifiable excuse or excusable neglect,
Clouse, 74 P.3d at 341, the district court incorrectly stated that the
petition was timely because McCoy had filed it less than three years
after the conclusion of his first postconviction proceeding.
¶ 19 Notwithstanding the district court’s erroneous timeliness
analysis, McCoy’s second postconviction petition sufficiently
demonstrated circumstances amounting to justifiable excuse or
excusable neglect. McCoy detailed how, at the time that the
mandate in his first postconviction proceeding was issued in July
2020, measures responding to the COVID-19 pandemic prevented
him from filing his second postconviction petition sooner.
Specifically, McCoy cited limited judicial and prison operations and
his confinement to his cell for twenty-three hours per day without
access to resources needed to prepare his petition. These
allegations, if true, would constitute justifiable excuse or excusable
neglect, see Chavez-Torres, ¶ 11, and the People do not contest this
on appeal.
12
¶ 20 In sum, McCoy’s second postconviction petition fell outside the
three-year window prescribed by section 16-5-402. The petition,
however, pleaded justifiable excuse or excusable neglect sufficient
to permit its consideration.
III. Henry’s Licensure Status
¶ 21 Turning to the substance of the second postconviction
petition, McCoy alleged that Henry was ineffective as postconviction
counsel because he was unauthorized to practice law in Colorado
when he represented McCoy due to his license being inactive. On
appeal, McCoy contends that the district court erred by consulting
OARC records and rejecting his claim based on information found
in those records. We agree that this issue requires reversing the
district court’s order and therefore do not reach McCoy’s remaining
contentions.
A. Standard of Review and Applicable Law
¶ 22 We review de novo the denial without a hearing of a Crim. P.
35(c) motion. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 8.
¶ 23 A court may deny a defendant’s Crim. P. 35(c) motion without
an evidentiary hearing when “the motion, files, and record in the
case clearly establish that the allegations presented in the
13
defendant’s motion are without merit and do not warrant
postconviction relief.” Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003); see Crim. P. 35(c)(3)(IV).
B. Analysis
¶ 24 Rejecting McCoy’s claim that Henry was ineffective because he
was unauthorized to practice law in Colorado, the district court
appears to have relied upon OARC records to conclude that
“Henry’s license was active during the time he represented . . .
McCoy.” Specifically, the court stated that those records revealed
disciplinary cases from 2007 and 2009 that predated Henry’s
representation of McCoy and a case from 2015 in which Henry
received a sixty-day suspension and a one-year period of probation
that, according to the district court, “did not serve to suspend . . .
Henry’s bar license.”
¶ 25 In his petition, however, McCoy stated that the OARC records
for Henry “show that prior to 2017, which is when Henry actually
filed McCoy’s postconviction motion, his license status was listed as
inactive, thus demonstrating that he was not authorized to act as
McCoy’s attorney.” And on appeal, McCoy asserts that the district
court misunderstood his argument by focusing on Henry’s
14
disciplinary cases. According to McCoy, he is “not contending that
Henry’s license was rendered inactive due to previous misconduct;
he’s contending that it’s inactive because Henry suffers from some
disability.”
2
Thus, McCoy argues, “the district court [wa]s . . .
mistaken that Henry’s disciplinary history refuted McCoy’s claim.”
¶ 26 We cannot be certain what records the district court consulted
in reaching its determination about Henry’s license status because
neither its order nor the record on appeal contains this material. It
appears most likely to us, however, that the district court consulted
Henry’s publicly available online OARC records, Colo. Sup. Ct.
OARC, Attorney/LLP Search & Disciplinary History,
https://perma.cc/67VT-MCKX, which, as of the date of this
opinion, display the following:
2
The People assert that we cannot consider this argument because
McCoy raised it for the first time on appeal. According to the
People, McCoy did not previously claim “that postconviction
counsel’s license was inactive due to a disability, as opposed to a
suspension or disciplinary proceedings.” Construing McCoy’s pro
se motion broadly, see People v. Bergerud, 223 P.3d 686, 696-97
(Colo. 2010), we note that it alleged that Henry’s “license status was
listed as inactive,” an allegation consistent with his claim on appeal
that Henry’s license was inactive due to a disability. That McCoy
simply provided on appeal the reason behind Henry’s inactive
license status does not render his argument inconsistent with the
one he outlined in his motion.
15
Henry’s Online OARC Records
¶ 27 Consistent with McCoy’s description, the OARC records list
Henry’s license status as “Disability Inactive.” But those records
provide no additional information about this license status, such as
16
its underlying cause or, more importantly, its timeframe —
specifically, whether Henry’s license status was “Disability Inactive”
when the district court apparently consulted those records, when
Henry represented McCoy, or both.
¶ 28 Because we do not know which records the district court
consulted, and because OARC’s online records lack necessary
clarity about Henry’s “Disability Inactive” license status, we cannot
take judicial notice of them in order to assess the merits of McCoy’s
claim. See CRE 201(b)(2) (court may take judicial notice of facts not
subject to reasonable dispute that are “capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned”). We therefore cannot say that the
information before us refutes McCoy’s allegation that Henry was
unlicensed at the time that he filed the 2017 petition.
3
3
Because we cannot take judicial notice of the status of Henry’s law
license at the time that he filed the 2017 petition, we need not
consider whether, as McCoy argues, it was inappropriate for the
court to look beyond the files and records of the case to determine
whether McCoy’s factual allegations were untrue. See Crim. P.
35(c)(3)(IV); People v. Smith, 2017 COA 12, ¶ 19; People v. Davis,
2012 COA 14, ¶ 10.
17
¶ 29 Of course, as the People point out, it is true that any
uncertainty about the status of Henry’s law license at the time that
he filed the 2017 motion is not dispositive of McCoy’s claim.
Indeed, “a majority of courts have rejected a per se rule that an
attorney has provided ineffective assistance to a criminal defendant
even when an attorney is suspended or disbarred during a criminal
defendant’s trial.” Hodges v. People, 158 P.3d 922, 927-28 (Colo.
2007). And on the record before us (and assuming that Henry was
in fact on “disability inactive” status at the time that he filed the
2017 petition), we cannot draw any conclusions as to Henry’s
competence during his representation of McCoy. But that is exactly
why McCoy’s claim should not have been summarily dismissed.
Because McCoy advanced a claim that he received ineffective
assistance of counsel based on his attorney’s lack of licensure, the
district court should have referred it to the public defender for
further investigation as required by Crim. P. 35(c)(3)(V). See People
v. Kenny, 30 P.3d 734, 743-44 (Colo. App. 2000) (holding that “if an
attorney is less than fully licensed,” a defendant’s claim of
ineffective assistance based on the attorney’s status must be
18
resolved “by applying a case-by-case approach”), overruled on other
grounds by West v. People, 2015 CO 5, ¶¶ 45-64.
¶ 30 Accordingly, we must reverse the order denying McCoy’s
petition and remand with directions to serve a copy of McCoy’s
second postconviction petition and this opinion on the office of the
public defender with instructions for the public defender to file a
timely response under Crim. P. 35(c)(3)(V).
IV. Other Contentions
¶ 31 McCoy also contends that the district court erred by finding
that Henry’s performance was not deficient and did not prejudice
McCoy, and by refusing to address McCoy’s four remaining claims.
Because we conclude that a remand is required to allow the public
defender to review McCoy’s petition, we do not reach these
contentions. See Chalchi-Sevilla, ¶ 25 (holding that “if a defendant’s
pro se Crim. P. 35(c) motion presents at least one potentially
meritorious claim, the postconviction court shall provide ‘a
complete copy’ of the motion to appointed counsel”). We express no
opinion concerning the merits of McCoy’s other contentions or the
necessity for an evidentiary hearing. See id. at ¶ 26.
19
V. Disposition
¶ 32 We reverse the district court’s order and remand the case for
further proceedings consistent with this opinion.
JUDGE FOX and JUDGE SULLIVAN concur.
