23CA0559 Peo v Warro 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0559
Larimer County District Court Nos. 20CR1816, 21CR424 & 21CR77
Honorable Laurie K. Dean, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Michael Warro,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE LUM
Harris and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Megan C. Rasband, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Daniel Michael Warro, seeks to vacate three guilty
pleas entered in the global disposition of Larimer County case
numbers 20CR1816, 21CR77, 21CR424, and 21CR394. He appeals
the district court order denying his Crim. P. 35(c) motion without
appointing postconviction counsel or holding an evidentiary
hearing. We reverse and remand for further proceedings.
I. Background
¶ 2 The four cases in Warro’s global disposition were based on
evidence that he (1) drugged two women without their consent and
had sex with them; (2) held his wife at gunpoint, injured her eye,
threw her phone down the stairs, and grabbed their infant while
holding a gun; (3) resisted arrest and injured two police officers
while reaching for a handgun; and (4) violated bail bond conditions
and a protection order. The prosecution agreed to dismiss the
fourth case, plus twelve felony and four misdemeanor counts from
the first three cases, in exchange for Warro’s guilty pleas to
(1) second degree assault, (2) felony menacing, and (3) second
degree assault, respectively.
¶ 3 The district court accepted Warro’s pleas and ordered a
presentence report (PSR) and sex-offense-specific evaluation
2
(SOSE). Two months later, it sentenced Warro to an aggregate
prison term of twelve years, plus a consecutive fifteen years of sex
offender intensive supervision probation, in accordance with the
plea agreements.
¶ 4 Warro timely filed a pro se Crim. P. 35(c) motion to vacate his
three guilty pleas. He requested the appointment of counsel and
claimed, among other things, that (1) his guilty plea was
unconstitutional because he was not mentally competent to enter a
plea agreement and (2) his counsel was ineffective for failing to raise
the issue of his competence prior to his guilty plea. The district
court denied the motion without appointing counsel and without a
hearing. In its lengthy order, the court found that the record —
specifically, Warro’s written yes/no answers on the guilty plea
questionnaires, his statements during the providency hearing, and
the PSR and SOSE — refuted his mental incapacity claim because it
established that Warro was competent. As a result, it also
concluded that Warro’s ineffective assistance claim failed because
he could not establish that he was prejudiced by counsel’s failure to
raise the issue of his competency.
3
II. Discussion
¶ 5 Warro contends that he is entitled to the appointment of
postconviction counsel and a hearing. Although at times framed
through the lens of his ineffective assistance claim, Warro’s primary
argument appears to be that the district court erred by concluding
that the record clearly establishes his competency. We agree with
Warro, conclude that he alleged sufficient facts to merit the
appointment of counsel, and remand for further proceedings under
Crim. P. 35(c).
A. Standard of Review and Remedy
¶ 6 We review both the summary denial of a Crim. P. 35(c) motion
and the constitutional validity of a guilty plea de novo. People v.
Marquez, 2020 COA 170M, ¶ 17 (summary denial); Brooks v. People,
2019 CO 75M, ¶ 6 (constitutionality of plea). A court may deny a
defendant’s Crim. P. 35(c) motion without an evidentiary hearing
“only where the motion, files, and record in the case clearly
establish that the allegations presented in the defendant’s motion
are without merit and do not warrant postconviction relief.”
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
4
¶ 7 If we conclude that a summary denial was in error, the remedy
is to “put the train back on the tracks at the point it derailed.”
People v. Chalchi-Sevilla, 2019 COA 75, ¶ 23. When the district
court denies a defendant’s request for appointment of counsel and
the pro se Crim. P. 35(c) motion presents at least one potentially
meritorious claim, the proper procedure is to remand with
directions to (1) appoint postconviction counsel, (2) allow counsel to
supplement the petition, and (3) hold an evidentiary hearing on any
potentially meritorious claims. Id. at ¶ 25.
B. Applicable Law
¶ 8 A criminal defendant may not plead guilty “unless he does so
‘competently and intelligently.’” Godinez v. Moran, 509 U.S. 389,
396 (1993) (citations omitted). “The focus of a competency inquiry
is the defendant’s mental capacity; the question is whether he has
the ability to understand the proceedings.” Id. at 401 n.12. When
there is some doubt about the defendant’s competency, the court
should consider and resolve the issue based on factors including
(1) defense counsel’s evaluation, (2) expert opinion, and (3) the
defendant’s demeanor and interactions during court appearances.
See Blehm v. People, 817 P.2d 988, 994 (Colo. 1991).
5
¶ 9 A defendant is incompetent to enter a guilty plea if, as a result
of a mental or developmental disability, the defendant does not have
(1) “sufficient present ability to consult with [his] lawyer with a
reasonable degree of rational understanding in order to assist in the
defense,” or (2) “a rational and factual understanding of the
criminal proceedings.” § 16-8.5-101(12), C.R.S. 2023; see Godinez,
509 U.S. at 396. “‘Mental disability’ means a substantial disorder
of thought, mood, perception, or cognitive ability that results in
marked functional disability, significantly interfering with adaptive
behavior.” § 16-8.5-101(15).
¶ 10 Although a defendant’s statements at a providency hearing
“carry a strong presumption of verity,” courts cannot fairly exclude
“all possibility that a defendant’s representations” were the product
of factors — such as mental incapacity — that would render the
75 (1977); see Sanchez-Martinez v. People, 250 P.3d 1248, 1255,
1257-59 (Colo. 2011) (the defendant’s plea was unconstitutional
despite his signature on “an advisal of rights form” and a Rule 11
colloquy at the providency hearing). To merit a postconviction
6
hearing, Warro must merely assert facts that, if true, may warrant
relief. See Chalchi-Sevilla, ¶ 7.
C. Application
1. Allegations Made in the Motion
¶ 11 Warro’s motion alleged, in substantial detail, that he did not
understand the plea proceedings due to mental health issues, new
psychotropic medications, and traumatic brain injuries. In addition
to alleging that Warro suffered from long-term mental health issues
with depression and anxiety, the motion alleged that he suffered
from three concussions beginning with his arrest on March 4, 2021
— injuries that caused multiple hospitalizations in addition to
retrograde and anterograde amnesia. He also alleged that he was
prescribed thirteen new medications in the months following his
arrest and that he had adverse reactions to some of them. As a
result, Warro alleged, he could not “remember anything,
understand difficult information[,] or participate in legal
proceedings” during the months following his injuries.
1
1
He also alleged that he relayed myriad symptoms to jail personnel,
including, but not limited to, “amnesia, confusion, hallucinations,
anxiety, concentration issues, disorientation . . . difficulty
remembering new information . . . [and] personality changes.”
7
¶ 12 Warro also asserted that (1) he did not understand his
attorney’s communications and had to call his mother after every
visit; (2) he was assigned a peer counselor by the detention facility
due to his “continuous lack of awareness”; and (3) his attorney
asked him on “multiple occasions” if he believed he was competent,
to which Warro responded that he “honestly did not know.”
¶ 13 Finally, Warro listed specific sources of evidence that would
support his allegations, including (1) video evidence;
(2) correspondence between health care professionals at the
detention facility acknowledging his “cognitive issues, amnesia,
hallucinations[,] and confusion”; and (3) written correspondence
between his attorney and his mother.
¶ 14 Given the specificity of Warro’s allegations, the precise facts
alleged, and the sources of evidentiary support Warro listed, we
conclude that Warro has alleged sufficient facts that, if true, may
warrant relief. Chalchi-Sevilla, ¶ 7. But this does not end our
inquiry. We must also consider whether the record clearly refutes
Warro’s claim, as the district court and the People contend. We
conclude it does not.
8
2. The Questionnaire and Providency Hearing
¶ 15 The district court concluded that Warro’s yes or no answers on
the plea questionnaire and during the providency hearing establish
his competency. We disagree.
¶ 16 We acknowledge that Warro’s yes or no answers could
generally support a finding that he understood the proceedings, but
we are not persuaded that simple yes or no answers, by themselves,
are sufficient to refute Warro’s claim that he lacked the mental
capacity to enter pleas. The cases the People cite do not stand for
this proposition, and we are not aware of any that do. See, e.g.,
Sanchez-Martinez, 250 P.3d at 1257-59; see also Von Pickrell v.
People, 163 Colo. 591, 598, 431 P.2d 1003, 1006-07 (1967)
(“However regular the proceedings . . . might appear from the
transcript, it still might be the case that petitioner did not make an
intelligent and understanding waiver of his constitutional rights.”
(quoting Sanders v. United States, 373 U.S. 1, 19-20 (1963))).
¶ 17 Our review of case law shows that a providency hearing could
refute an incompetency claim if it included one or more of the
following (1) defense counsel’s assessment that the defendant is
competent, see Blehm, 817 P.2d at 994; (2) an expert’s
9
contemporaneous competency evaluation, see id. at 995; People v.
Pendleton, 2015 COA 154, ¶¶ 12-13; (3) an extensive inquiry into
the defendant’s competency by the court, see Blehm, 817 P.2 at
994-95; and (4) clear competency findings, see id.; People v. Venzor,
121 P.3d 260, 262 (Colo. App. 2005) (concluding that the record
refuted any concerns about the defendant’s mental capacity when
the providency court found, with record support, that the defendant
was “alert and intelligent,” had given the plea “quite a bit of
thought,” had expressed himself regarding the elements of the
agreement, and “knows what he is doing and he understands this
decision”). But none of these were present here.
2
¶ 18 Moreover, there were two relevant exchanges that went beyond
yes or no responses from Warro, and they are conflicting as to
Warro’s competency. First, the court asked whether Warro felt like
his medications interfered with his ability to understand, or
whether he felt clear headed. Warro answered, “I feel fine,” which
does not directly answer whether Warro felt like his medications
2
Because the district court denied Warro’s motion for transcripts at
state expense, we don’t have a record of every possible discussion of
competency in this case. However, we have access to the
transcripts relied on by the district court.
10
affected his understanding or if he felt clear headed. The court
followed with the compound question, “Do you understand what’s
going on, and there’s no reason why I can’t take your plea today?”
Warro answered, “No, Your Honor.” — which could mean that he
didn’t understand what was going on, depending on which part of
the question he was answering.
¶ 19 The second notable exchange concerned Warro’s guilty plea to
felony menacing. It proceeded as follows:
THE COURT: And, Mr. Warro, what did you
do that makes you guilty of menacing?
WARRO: To describe it or --
THE COURT: Did you menace someone?
WARRO: Oh. Yes.
THE COURT: And, who did you menace, and
what with?
WARRO: Ah. It was my then wife.
THE COURT: Okay. And --
WARRO: And, why?
THE COURT: And, did you have a weapon?
WARRO: I don’t think so.
11
In our view, this exchange suggests both that Warro had difficulty
following the line of questions and that he did not remember the
events underlying the menacing charge. Cf. Blehm, 817 P.2d at 994
(where the defendant “exhibited no confusion whatever to the
court’s questions and responded clearly and precisely to each
question”). Nonetheless, the court found that Warro’s plea was
knowingly, voluntarily, and intelligently given. And it found the
same for Warro’s two subsequent guilty pleas, without any further
significant exchanges with Warro. The court made no findings with
respect to whether Warro had the ability to understand the
proceedings.
¶ 20 Thus, we read the exchanges at the providency hearing to
provide only questionable evidence of competency, which is not
sufficient to “clearly establish” that the allegations in Warro’s
motion are without merit.
3
Cf. People v. McGlaughlin, 2018 COA
114, ¶ 31 (a district court “may make a dispositive factual finding
3
We do not go so far as to conclude that these exchanges gave the
district court “reason to believe” Warro was incompetent, which
would require suspension of the proceedings. § 16-8.5-102(2)(a),
C.R.S. 2023; see Nagi v. People, 2017 CO 12, ¶ 11. We conclude
only that these exchanges do not refute Warro’s claim of mental
incapacity.
12
without a hearing only when the fact in question is ‘clearly
established,’” meaning that the record does not contain conflicting
evidence).
3. Mental Health Evidence
¶ 21 As to the SOSE and PSR, the court noted that Warro had
received a “robust evaluation” and acknowledged that he was
receiving treatment for mental health issues, but it found “no
indication . . . that any of [Warro’s] mental health concerns were so
significant as to give rise to an implication that he could not
understand the proceedings, participate in his defense, [or] consult
with his attorney in a rational manner.” Warro argues that the
court erred by relying on those documents because they were
completed one and two months, respectively, after the providency
hearing. We agree that the SOSE and PSR don’t clearly refute
Warro’s incompetency claim. Not only were they created some time
after the providency hearing, they also provide at least some
evidence to support Warro’s contentions he did not have the mental
capacity to enter guilty pleas. This evidence includes
• the summary of psychological assessments from Warro’s
SOSE, showing clinical range symptoms in many
13
dimensions, “mental health issues that are impacting his
daily functioning,” and the following opinion: “It is clear
Mr. Warro is experiencing significant psychological
difficulties, and he should be more intensively
evaluated.”;
• the SOSE showing that Warro self-reported active
hallucinations, daily headaches, a history of head
injuries, and unmanageable symptoms of anxiety and
depression;
• the PSR recommendation that “Mr. Warro should
complete a psychological evaluation to ascertain the
extent of his mental health issues”;
• PSR input from the Larimer County Jail — “most
notations involved [Warro’s] strange behavior (to include
confusion, possible hallucinations, talking to himself)
and suicidal statements”; and
• a victim’s statement on the PSR that Warro’s “mental
state and behaviors are not predictable or rational.”
¶ 22 Based on this evidence, we cannot conclude that the SOSE
and PSR clearly refute Warro’s incompetency claim. Moreover, the
14
evidence summarized in those documents is persuasive because it
was obtained from multiple sources — it does not simply list
Warro’s self-reported symptoms.
¶ 23 We do not consider whether the record establishes that Warro
was competent at the sentencing hearing because competency at
that time, two months after the providency hearing, does not
establish that Warro was competent when he pleaded guilty. Cf.
Pendleton, ¶¶ 12-13 (affirming a postconviction court’s finding —
after an evidentiary hearing — that the defendant had been
competent to enter a plea, in part because the evidence presented
included three contemporaneous competency evaluations).
¶ 24 For all these reasons, we conclude that Warro’s competency
claim has arguable merit. See Chalchi-Sevilla, ¶ 7. Accordingly, we
remand for the appointment of postconviction counsel, for
postconviction counsel to have the opportunity to supplement his
petition, and for the postconviction court to then hold an
24-26; Ardolino, 69 P.3d at 77; see also Crim. P. 35(c)(3)(V).
15
III. Disposition
¶ 25 The order is reversed and the case is remanded for further
proceedings consistent with this opinion.
JUDGE HARRIS and JUDGE BROWN concur.
