22CA0077 Peo v Cohen 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0077
Boulder County District Court No. 14CR437
Honorable Andrew Hartman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Emily Elizabeth Cohen,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE BROWN
Harris and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Emily Elizabeth Cohen, directly appeals the
judgment of conviction entered after she pleaded guilty to one count
of theft, collaterally attacking her guilty plea on two grounds. First,
Cohen contends that the district court judge who accepted her
guilty plea was biased, so the conviction entered on her plea must
be reversed. We conclude that the record fails to demonstrate that
the judge was actually biased, so reversal is not required. See
People In Interest of A.P., 2022 CO 24, ¶ 29 (“Only when a judge was
actually biased will we question the reliability of the proceeding’s
result.”).
¶ 2 Second, Cohen contends that the district court erroneously
and totally deprived her of her right to counsel before trial, so her
uncounseled guilty plea was not knowing or intelligent. We first
conclude that, by pleading guilty, Cohen waived her right to
challenge on appeal the alleged deprivation of counsel. See
Stackhouse v. People, 2015 CO 48, ¶ 8 (“[E]ven fundamental rights
can be waived, regardless of whether the deprivation thereof would
otherwise constitute structural error.”); Neuhaus v. People, 2012 CO
65, ¶ 8 (to preserve appellate review of constitutional challenges to
pretrial proceedings, a defendant must not plead guilty). We then
2
conclude that Cohen’s attack on the validity of her guilty plea
requires factual development and must be brought in a
App. 2009) (collateral attack on plea requiring resolution of factual
issues ordinarily must be raised in a Crim. P. 35(c) motion); cf.
Moore v. People, 2014 CO 8, ¶ 16 (a defendant may only challenge
the knowing, voluntary, and intelligent waiver of the right to testify
in a postconviction proceeding).
I. Background
¶ 3 Cohen previously practiced as an immigration attorney. The
People alleged that Cohen requested payment in advance for her
services and that once Cohen received money to work on a case,
she broke off all contact, failed to do the work she had agreed to do,
and refused to provide refunds to her clients. In 2014, the
prosecution charged Cohen with fifty-four counts of theft, ranging
from class 2 misdemeanors to class 4 felonies. In 2015, a jury
convicted Cohen of some of the charges.
¶ 4 Cohen appealed, and a division of this court reversed her
convictions for an evidentiary error and remanded for a new trial.
See People v. Cohen, 2019 COA 38, ¶ 44. On remand, Cohen
3
pleaded guilty to one count of theft in exchange for the dismissal of
the remaining counts, and the district court sentenced her to time
served.
II. Actual Bias
¶ 5 Cohen contends that Judge Andrew Hartman, the district
court judge who presided over the entry of her guilty plea, was
actually biased, so “the guilty plea he accepted in this case is not
valid.” We are not persuaded.
1
A. Generally Applicable Law and Standard of Review
¶ 6 “Basic to our system of justice is the principle that a judge
must be free of all taint of bias and partiality.” People v. Jennings,
judge may not preside over a case if they are unable to be impartial.
1
We understand Cohen’s argument to be that Judge Hartman was
actually biased. But to the extent Cohen argues that Judge
Hartman was statutorily disqualified based on section 16-6-
201(1)(d), C.R.S. 2023; Crim. P. 21(b)(1)(IV); or Code of Judicial
Conduct 2.11(A)(1), she waived her right to raise these challenges
by failing to object in the district court and by pleading guilty. See
People v. Garcia, 2024 CO 41M, ¶ 46 (litigants waive statutory
disqualification “when a party knows of grounds for
disqualification” but fails to file a motion until after an adverse
ruling (quoting People in Interest of A.G., 262 P.3d 646, 652 (Colo.
2011))); Neuhaus v. People, 2012 CO 65, ¶ 8 (a guilty plea generally
precludes appellate review of issues that arose before the plea).
4
A.P., ¶ 25. Whether a judge should recuse from a case “depends
entirely on the impropriety or potential appearance of impropriety
caused by [their] involvement.” Id. at ¶ 26.
¶ 7 But there is a difference between a judge who has the
appearance of impropriety and one who has actual bias. Jennings,
¶ 18. Colorado’s Code of Judicial Conduct requires a judge to
recuse from “any proceeding in which the judge’s impartiality might
reasonably be questioned” — in other words, when their
involvement in a case might create the appearance of impropriety.
A.P., ¶ 27 (quoting People in Interest of A.G., 262 P.3d 646, 650
(Colo. 2011)).
¶ 8 Actual bias, on the other hand, “exists when, in all probability,
a judge will be unable to deal fairly with a party; it focuses on the
judge’s subjective motivations.” Id. at ¶ 28. “A defendant asserting
bias on the part of a trial judge must establish that the judge had a
substantial bent of mind against” them. People v. Drake, 748 P.2d
1237, 1249 (Colo. 1988). Such bias must be established clearly in
the record; mere speculative statements and conclusions are not
enough. Id.
5
¶ 9 Circumstances creating an appearance of impropriety
warranting recusal do not alone demonstrate that a judge was
actually biased. A.P., ¶ 29. And although “both an appearance of
impropriety and actual bias are grounds for recusal from a case,
only when the judge was actually biased will we question the
result.” Id.
¶ 10 Whether a trial judge should have recused is a question of law
that we review de novo. Sanders v. People, 2024 CO 33, ¶ 25. If an
actually biased judge presides over a trial, it is structural error.
People v. Garcia, 2024 CO 41M, ¶ 21. Claims of actual bias may
not be waived and may be reviewed on appeal even if the defendant
fails to properly raise the issue in the trial court. Jennings, ¶ 21.
B. Additional Background
¶ 11 On July 14, 2021, despite having been ordered to appear in
person “on at least three occasions” and as a condition of bond,
Cohen appeared at a pretrial conference by Webex and represented
that she had tested positive for COVID-19. The district court ruled
that by appearing virtually, Cohen had failed to appear and violated
her bond conditions. The court recounted Cohen’s “history of
hiding behind supposed medical ailments to avoid appearing in
6
court.” It determined there was probable cause that Cohen was in
direct contempt of the court and issued a warrant for her arrest.
¶ 12 Two days later, Cohen filed a motion to reconsider and
attached a letter from Caroline Marcotte, an advanced registered
nurse practitioner at the University of Iowa Hospitals and Clinics,
stating that Cohen “was told she is a Covid-positive patient” and
must remain quarantined at home. The court denied the motion.
¶ 13 Two weeks later, Cohen filed a motion to quash the warrant
and attached a letter from Maddie Ferguson, a certified physician
assistant at the University of Iowa Hospitals and Clinics, stating
that Cohen had tested positive for COVID-19 on July 13, was still
infectious, and was ordered to stay home. The court granted the
motion to quash and allowed Cohen to appear virtually for an
August 9 hearing. After that hearing, the court ordered Cohen to
appear in person for a November 2 pretrial hearing. It also ordered
that, if Cohen sought to appear remotely at any future hearings
because of COVID-19, the court would only find good cause to allow
Cohen’s remote appearance if she provided an official COVID-19
test result in advance.
7
¶ 14 The day before the November 2 pretrial hearing, Cohen filed a
motion to dismiss her case on several grounds and attached a letter
from Dr. Jessica Alston of the University of Iowa Hospitals and
Clinics, stating that Cohen had tested positive for COVID-19 on
October 28, was still infectious, and was ordered to stay home.
Cohen told the court she would appear remotely the following day.
¶ 15 At the hearing, the prosecution said it had been skeptical of
the letters Cohen had submitted and had contacted the University
of Iowa Hospitals and Clinics to verify if the letter from Dr. Alston
was valid. The prosecution offered as an exhibit an email between
its investigator and a nurse at the University of Iowa, which
confirmed that Dr. Alston had not written the letter. The court
found probable cause “that the document is forged and not a
legitimate doctor’s note.” On the prosecution’s request, the court
revoked Cohen’s bond and issued another warrant for her arrest,
both because she failed to appear in violation of the court’s orders
and based on its conclusion that probable cause existed that the
documents Cohen submitted were fraudulent.
¶ 16 Cohen was arrested on the warrant and because she
challenged extradition and remained in custody in Iowa, she
8
appeared via Webex in court for a status conference on
November 23. At that status conference, the prosecution informed
the court and Cohen that it had filed “new charges related to the
attempt to influence” and “forgery charges” based on the COVID-19
documents.
¶ 17 On the morning of December 6, the first day of the scheduled
trial in the theft case, Judge Hartman let the parties know that he
had arranged for a different judge to advise Cohen on the attempt to
influence and forgery charges “in an abundance of caution in case
[he] ever had to be a witness” in that case. Judge Hartman asked
whether there was a possibility of reaching a disposition of the theft
case and both parties expressed interest in exploring one. The
parties returned and reported they had reached a plea agreement
on the theft case. Judge Hartman advised Cohen of her rights if
she entered a plea and then took a recess.
¶ 18 While the prosecution was finalizing the plea paperwork,
Judge Langer advised Cohen of her rights on the attempt to
influence case “since, theoretically, Judge Hartman, I guess, could
be a witness.” After the advisement, Judge Langer asked if Judge
9
Hartman was going to take the plea in the theft case, and Cohen
responded affirmatively.
¶ 19 Judge Hartman returned to preside over Cohen’s entry of a
guilty plea to a single felony count of theft. Judge Hartman
sentenced Cohen to ninety days jail with ninety days credit for time
served, as agreed by the parties.
C. Judge Hartman Did Not Have Actual Bias
¶ 20 Cohen contends that Judge Hartman had actual bias
justifying automatic reversal of the conviction entered on her guilty
plea because (1) he was the named victim in the attempt to
influence case, which arose from the proceedings in the theft case;
and (2) he had a “substantial bent of mind” against her as
evidenced in his rulings and case management.
1. Named Victim in Attempt to Influence Case
¶ 21 Although the appellate record in the theft case does not
include the complaint filed in the attempt to influence case, we may
take judicial notice of court records in a related proceeding. See
CRE 201(b)(2); People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).
Indeed, the People charged Cohen with three counts of attempt to
influence a public servant identifying Judge Hartman as the “public
10
servant” and three counts of forgery identifying Judge Hartman as
the person Cohen intended to defraud. Still, for four reasons, we
are not persuaded that Judge Hartman’s relationship to the attempt
to influence case amounts to him having actual bias against Cohen
in the theft case.
¶ 22 First, nothing in the record suggests that Judge Hartman
directed the prosecution to investigate any charges that might arise
from Cohen’s submission of the COVID-19 documents or requested
that the prosecution file charges. Cf. In re Estate of Elliott, 993 P.2d
474, 482 (Colo. 2000) (Substitution was proper where the judge
“appeared personally involved in the controversy and had prejudged
the case, but also because the judge referred the case to the district
attorney for potential criminal prosecution.”).
¶ 23 Second, Judge Hartman did not have a direct, personal,
substantial, or pecuniary interest in the theft case. See Sanders,
¶ 31 (Recusal is not required “whenever a party can assert some
objective probability of bias” but “only in circumstances involving a
direct, personal, substantial, or pecuniary interest.”). True, Judge
Hartman had an interest as a named victim and potential witness
in the attempt to influence case from which he recused, but that
11
interest did not require his disqualification from the theft case. See
People v. Schupper, 2014 COA 80M, ¶¶ 63-64 (disqualification of a
judge who witnessed perjury in his courtroom was not necessary
where the perjury case was transferred to another judicial officer,
and the judge “was not a material witness in the proceeding he was
currently handling”). At most, Judge Hartman’s relationship to the
attempt to influence case could give rise to an appearance of
impropriety in the theft case, a claim which Cohen can and did
waive through entry of her guilty plea.
2
See A.G., 262 P.3d at 650
(“[L]itigants may waive disqualification when the disqualification is
not for reasons of actual bias or prejudice.”).
¶ 24 Third, it is well-settled that “what a judge learns in his judicial
capacity is a proper basis for judicial observations, and that the use
of such information is not the kind of matter that results in
disqualification.” People v. Dobler, 2015 COA 25, ¶ 13 (quoting
Smith v. Dist. Ct., 629 P.2d 1055, 1057 (Colo. 1981)); see also Liteky
v. United States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by
the judge on the basis of facts introduced or events occurring in the
2
To be clear, we do not conclude that these circumstances in fact
gave rise to an appearance of impropriety.
12
course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair
judgment impossible.”). If we required a judge to disqualify based
on information learned in their capacity as a judge, “an
unscrupulous defendant could manipulate such a ruling to [their]
advantage” and delay proceedings indefinitely. People v. Ramos,
708 P.2d 1347, 1352-53 (Colo. 1985).
¶ 25 Judge Hartman learned of the conduct giving rise to the
attempt to influence case in his judicial capacity because Cohen
submitted allegedly fraudulent documents in the theft proceedings.
And in our view, the record dispels the notion that Judge Hartman
was influenced in any way by Cohen’s conduct. The rulings to
which Cohen points as evidence of a “substantial bent of mind,”
which we address next, do not reflect any strong feelings toward or
against any party. And Cohen points to nothing else in the record
to support her claim.
¶ 26 Fourth, the type of conduct at issue here — submitting
allegedly forged documents to a judge to excuse a nonappearance —
is not so outrageous “that in all probability [it] will prevent [a judge]
13
from dealing fairly with a party.” Jennings, ¶ 20 (quoting A.G., 262
P.3d at 650). As fact finder, a trial court routinely assesses witness
credibility and determines whether and how much weight to give
conflicting evidence. Schupper, ¶ 27.
¶ 27 By comparison, a division of this court rejected a claim that a
judge had actual bias when sentencing a defendant on arson
charges arising from a fire, even though the judge personally
witnessed the fire, was forced to evacuate his home, knew of friends
and staff who similarly had to evacuate their homes, and assisted in
relief efforts afterward. See People v. Barton, 121 P.3d 224, 229-30
(Colo. App. 2004) (concluding that the facts gave rise only to an
appearance of prejudice), overruled on other grounds by Lopez v.
People, 113 P.3d 713 (Colo. 2005). If a judge being forced to
evacuate his home to avoid a fire does not give rise to actual bias in
a proceeding to prosecute a defendant for setting the fire, we cannot
conclude that a judge receiving allegedly false information from a
defendant to excuse a failure to appear constitutes actual bias.
¶ 28 That Judge Hartman witnessed the conduct underlying
Cohen’s attempt to influence and forgery charges and was named a
victim of those crimes in a separate proceeding did not give rise to
14
actual bias in the theft case. Accordingly, we conclude that reversal
is not required. See A.P., ¶ 29.
2. Rulings and Case Management
¶ 29 We are also not persuaded that Judge Hartman’s rulings or
case management reflect a “substantial bent of mind” against
Cohen. To be sure, a judge’s adverse rulings, without more, are
insufficient to establish actual bias. Bocian v. Owners Ins. Co.,
2020 COA 98, ¶ 57 (“Unless accompanied by an attitude of hostility
or ill will toward a party, a ruling by a judge on a legal issue is
insufficient to show bias that requires disqualification.” (citing
Brewster v. Dist. Ct., 811 P.2d 812, 814 (Colo. 1991))); Saucerman v.
Saucerman, 170 Colo. 318, 326, 461 P.2d 18, 22 (1969) (“[R]ulings
of a judge,” even if “erroneous, numerous and continuous, are not
sufficient in themselves to show bias or prejudice.”). Even remarks
that are “critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not” establish bias, unless they
reveal an opinion that derives from an extrajudicial source or reflect
“such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Dobler, ¶ 26 (quoting Liteky, 510 U.S. at
555).
15
¶ 30 To support her claim, Cohen points to the following:
• Judge Hartman ruled that Cohen had failed to appear at the
November 2 hearing even though she appeared by Webex.
But given that Cohen had been ordered repeatedly to
appear in person and then submitted allegedly falsified
documents to justify her remote appearance, it was
reasonable for Judge Hartman to find that Cohen failed to
appear and to issue a warrant for her arrest.
• Judge Hartman “deprived [Cohen] of her constitutional right
to counsel for entry of the guilty plea, despite her repeated
requests for appointment of counsel.” See infra Part III.A.
Even if Judge Hartman erred by denying Cohen counsel, a
conclusion we do not reach, an erroneous ruling alone does
not reflect bias or prejudice. See Schupper, ¶ 58.
• Judge Hartman gave Cohen a “short amount of time” to
discuss a plea agreement with the prosecution. Our review
of the transcript from the providency hearing does not
reveal that Judge Hartman put any time pressure on Cohen
to reach a plea. Cohen did not request, nor was she denied,
additional time.
16
• Judge Hartman brought in a different judge to advise Cohen
on the attempt to influence case but “failed to acknowledge
that same bias as he presided over the theft case to enter
the plea.” As discussed, Judge Hartman’s recusal from the
attempt to influence case did not disqualify him from
presiding over the theft case.
• Judge Hartman “refused to take action” on Cohen’s motion
requesting appointment of an appellate public defender. As
the order taking no action on Cohen’s motion reflects, the
court determined there was “no issue subject to appeal
currently,” which would make sense given that Cohen
pleaded guilty. We note that after Cohen filed a notice of
appeal, another judge granted her request for counsel.
• Judge Hartman recused from the theft case after presiding
over Cohen’s guilty plea. In reality, the Chief Judge ordered
all judicial officers of the Twentieth Judicial District to
recuse from the case. The record does not reveal the reason
for recusal.
¶ 31 This record does not “clearly establish bias” by Judge
Hartman. See Schupper, ¶ 59. Cohen’s claims are bare assertions
17
and speculative statements that do not satisfy her burden of proof.
See A.P., ¶ 30. Accordingly, we conclude that reversal is not
required. See id. at ¶ 29.
III. Deprivation of Counsel
¶ 32 Cohen contends that the district court erroneously and totally
deprived her of her right to counsel, causing her guilty plea to be
unknowing and unintelligent. We conclude that Cohen waived her
right to object to the alleged deprivation of counsel by pleading
guilty. And what remains of her claim — a collateral attack on the
validity of the plea — cannot be addressed on direct appeal because
it requires further factual development.
A. Cohen Waived Her Claim that She Was Denied Counsel
¶ 33 The Sixth Amendment to the United States Constitution
guarantees a defendant the right to counsel. U.S. Const. amend.
VI; see also Colo. Const. art. II, § 16; Faretta v. California, 422 U.S.
806, 832 (1975). The “complete deprivation of counsel” has been
recognized as a structural error requiring automatic reversal.
Hagos v. People, 2012 CO 63, ¶ 10; People v. Crabtree, 2024 CO
40M, ¶ 26.
18
¶ 34 But even structural errors may be waived. Stackhouse, ¶ 8.
Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)).
¶ 35 “[A] guilty plea waives fundamental Sixth Amendment rights,
among others, unless the claim relates directly to the adequacy of
the guilty plea (i.e., whether it was knowing, voluntary, and
intelligent).” Jennings, ¶ 13. This is because “[a] guilty plea is an
admission of all the elements of a criminal charge,” and
“[g]enerally . . . precludes review of issues that arose prior to the
plea.” Neuhaus, ¶ 8. “[A] ‘guilty plea represents a break in the
chain of events which has preceded it in the criminal process,’ after
which a defendant may not raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry
of the guilty plea.” Jennings, ¶ 8 (quoting Neuhaus, ¶ 8); Tollett v.
Henderson, 411 U.S. 258, 266-67 (1973).
¶ 36 By pleading guilty, Cohen waived her right to object to any
errors — including those of constitutional magnitude — that may
have occurred before the plea. See Stackhouse, ¶ 8; Neuhaus, ¶ 8.
Thus, Cohen waived any claim that she was erroneously and totally
19
deprived of counsel before she entered her guilty plea, and we will
not address the merits of that claim. See Rediger, ¶ 40 (“[W]aiver
extinguishes error, and therefore appellate review.”).
B. Cohen’s Claim that her Plea Was Not Knowing or Intelligent
Cannot Be Raised on Direct Appeal
¶ 37 Cohen contends that she did not understand the
consequences of pleading guilty because the district court
erroneously denied her counsel earlier in the proceedings. More
particularly, Cohen contends that she would not have entered into
the plea agreement had she known that it (1) would waive her right
to raise an appellate claim that her speedy trial right was violated or
(2) did not guarantee a global disposition would be reached in both
of her criminal cases.
¶ 38 Because this aspect of Cohen’s claim relates directly to the
adequacy of her guilty plea, she did not waive it by pleading guilty.
See Jennings, ¶ 13. Still, Cohen’s claim is not cognizable on direct
appeal because it requires development of a factual record. See
Kirk, 221 P.3d at 65; cf. Moore, ¶¶ 16-17.
¶ 39 Entry of a guilty plea must be knowing, voluntary, and
intelligent. Medina v. People, 2023 CO 46, ¶ 17. A plea is invalid if
20
a defendant “does not understand the nature of the constitutional
protections” they are waiving or “has such an incomplete
understanding of the charge” that the plea cannot stand “as an
intelligent admission of guilt.” Id. (citation omitted).
¶ 40 Whether a guilty plea is knowing, voluntary, and intelligent is
a mixed question of fact and law. Sanchez-Martinez v. People, 250
P.3d 1248, 1254 (Colo. 2011). While we are well-positioned to
review purely legal issues on direct appeal, a defendant’s claim that
their plea was not knowing, voluntary, or intelligent may require
development of facts not contained in the direct appeal record. Cf.
Moore, ¶ 17 (postconviction review is necessary to develop facts not
contained in the direct appeal record that impact whether waiver of
right to testify was knowing, voluntary, and intelligent). Such is the
case here.
¶ 41 Even if we assumed that the district court erroneously
deprived Cohen of counsel earlier in the proceedings, a conclusion
we do not reach, we cannot discern from the existing record
whether the error influenced Cohen’s decision to plead guilty. The
existing record does not establish whether advice of counsel would
have changed what Cohen believed about a global disposition of the
21
theft and attempt to influence cases
3
or about her right to bring a
speedy trial claim on appeal. A postconviction court could find that
the absence or presence of counsel would have had no effect on
whether Cohen knowingly or intelligently pleaded guilty. For
example, a postconviction court could find that Cohen was fully
aware of the limited scope of her plea and of the impact that
pleading guilty would have on her ability to pursue an appellate
claim that her speedy trial rights had been violated. We cannot
make those factual findings in the first instance. See Kirk, 221 P.3d
at 65 (“We are not authorized to make [a] factual finding in the first
instance . . . and this is not a case in which the record supports but
one inference.”) (citation omitted).
¶ 42 Because we cannot discern the facts necessary to resolve
Cohen’s claim on the record before us, we will not address it for the
first time on direct appeal. See id. (declining to address for the first
time on appeal whether a defendant was coerced into a guilty plea
3
To be sure, we are skeptical of this claim, given that Judge Langer
made clear to Cohen — after he advised her in the attempt to
influence case but before she entered her guilty plea in the theft
case — that “there’s no guarantee that there’s a disposition in both
cases.”
22
where the record needed further factual development); cf. Moore,
¶¶ 16-17 (same with respect to the waiver of the right to testify).
Instead, Cohen must present this claim in a Crim. P. 35(c)
4
IV. Disposition
¶ 43 We affirm the judgment of conviction.
JUDGE HARRIS and JUDGE LUM concur.
4
As a result of our disposition, we necessarily discharge the show
cause order entered February 14, 2024.
