People v. Hunt , 412 P.3d 838 ( 2016 )

COLORADO COURT OF APPEALS 2016COA93
Court of Appeals No. 15CA0080
El Paso County District Court No. 10CR4367
Honorable David S. Prince, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Lee Hunt,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Taubman and Sternberg*, JJ., concur
Announced June 16, 2016
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Elizabeth Stovall, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1 Defendant, Robert Lee Hunt, appeals the district court’s order
denying his Crim. P. 35(c) motion for postconviction relief. We
reverse and remand for an evidentiary hearing on two ineffective
assistance of counsel claims.
I. Background
¶2 Defendant was charged with first degree “after deliberation”
murder, first degree “extreme indifference” murder, conspiracy to
commit murder, possession of a weapon by a previous offender, and
three crime of violence (sentencing enhancement) counts. Pursuant
to a plea agreement, defendant pleaded guilty to an added count of
second degree murder and to one of the original crime of violence
counts in exchange for (1) the dismissal of the remaining charges
and (2) a stipulated sentence of between thirty and forty years
imprisonment in the Department of Corrections.
¶3 At defendant’s January 2012 providency hearing, plea counsel
provided the court with the following factual basis for the second
degree murder charge for which defendant was about to plead
guilty:
[O]n July 28, [2010], [defendant] was the
victim of a home invasion, not . . . knowing
exactly who were the perpetrators of the home
1
invasion. [Defendant] along with an[other]
individual [(the shooter)] . . . decided that the
people responsible for the home invasion
would be killed. [Defendant] utilized [the
shooter] because [the shooter] had a weapon.
On the night of the murder, [the shooter] told
[defendant] that one of the robbers of the home
invasion was located at [an apartment
complex].
They proceeded then to [the apartment
complex] . . . [and] saw an individual standing
outside. [The shooter] believed that to be one
of the home invaders so [the shooter] called
[the individual] over to the car.
[Defendant] said, that’s not one of the
guys that did the home invasion. However,
then [the shooter] had a conversation with this
individual . . . [and] then shot [him].
¶4 In March and July 2012, defendant wrote two letters to the
district court, asking to withdraw his guilty plea. In his letters,
defendant asserted that (1) he was not guilty of murder because he
had not intended for the shooter to kill the victim; and (2) his
attorney had erroneously advised him that he could, if tried, be
found guilty (and sentenced to life imprisonment) under a
complicity theory.
¶5 On July 19, 2012, plea counsel filed a motion to withdraw
from the case based on an alleged conflict of interest and requested
2
the court allow defendant to withdraw his guilty plea. The motion,
which was very short, was based on defendant’s assertion that he
had received ineffective assistance of counsel.1 On July 30, 2012,
the court held a hearing on the motion; found no conflict of interest
between counsel and defendant; and directed counsel to file, on
defendant’s behalf, a Crim. P. 32(d) motion to withdraw guilty plea.
¶6 Three days later — the day before sentencing — plea counsel
filed the Crim. P. 32(d) motion, in which she noted:
 Defendant had “previously requested to withdraw his
[guilty] plea due to an ineffective counsel/conflict claim.
A conflict hearing was held and the court at that time
determined there was no conflict nor was there a showing
that counsel was ineffective.”
 Defendant “contends that he was never fully advised of
the definition of complicity by counsel. [He] contends
that he never understood that complicity required that he
have actual knowledge that the other person intended to
commit all or part of the crime. He also “contends that
1Counsel related that because of the attorney-client privilege, she
was not at liberty to disclose in the motion the specifics of the
conflict between her and defendant.
3
he thought being at the scene of the crime was enough
for conviction under a complicity theory” but, after doing
his own research, realizes that “mere presence is not
enough to result in a complicity conviction [sic].”
 Defendant “contends that he had no knowledge that the
codefendant in this case was going to shoot the victim”
and therefore he “could not be found guilty of murder
pursuant to a complicity theory, nor could he be
convicted as the principal since he did not fire the
weapon that killed the victim.”
 If defendant “fail[ed] to understand the requirements of
complicity” as he contended, then he “did not have an
adequate understanding of what he was pleading to [and]
. . . has a fair and just reason to withdraw his plea.”
¶7 Without addressing the Crim. P. 32(d) motion, the district
court sentenced defendant to a term of forty years imprisonment in
the custody of the Department of Corrections.
¶8 Subsequently, defendant filed two pro se Crim. P. 35(c)
motions for postconviction relief based on claims of ineffective
assistance of plea counsel. As pertinent here, defendant alleged
4
that he had pleaded guilty based on counsel’s incorrect advice that
he could be found guilty of murder as a complicitor simply because
he was present when a person he had not intended to be killed was
killed.
¶9 The district court appointed defendant new counsel, who
subsequently filed a supplemental motion (1) expounding on
defendant’s pro se arguments and (2) asserting that plea counsel
was also ineffective in failing to advise defendant that he could
appeal the apparent denial of the Crim. P. 32(d) motion.2
¶ 10 Without holding a hearing, the court denied the Crim. P. 35(c)
motions for postconviction relief. In its written order, the court
found, in pertinent part, that
 under the facts recited at the providency hearing, the law
of complicity, and the doctrine of transferred intent
applied in People v. Candelaria, 107 P.3d 1080, 1091-92
(Colo. App. 2004), aff’d in part and rev’d in part, 148 P.3d
178 (Colo. 2006), counsel’s advice was accurate; and
2Defendant also alleged other grounds of ineffective assistance of
counsel. Because, however, he does not address those other
grounds in his appeal, they are deemed abandoned and will not be
addressed here. See People v. Brooks, 250 P.3d 771, 772 (Colo.
App. 2010).
5
 even assuming plea counsel failed to advise defendant of
his right to appeal from a denial of a motion to withdraw
guilty plea, defendant was not entitled to relief because
he “identifie[d] no plausible appellate challenge to the
denial of his request to withdraw his plea.”
II. Ineffective Assistance of Plea Counsel
¶ 11 On appeal, defendant contends that the court erred in
summarily denying his postconviction motion. Specifically, he
asserts that he was at least entitled to a hearing on his assertions
that plea counsel was ineffective for (1) inaccurately advising him of
the requisite elements of the offense to which he pleaded and
(2) failing to advise him that he could appeal the court’s denial of
his Crim. P. 32(d) motion. We agree.
¶ 12 Ineffective assistance of counsel may constitute an adequate
ground for relief under both Crim. P. 32(d) and 35(c). People v.
Lopez, 12 P.3d 869, 871 (Colo. App. 2000).3
3“[A Crim. P. 32(d)] motion to withdraw a plea of guilty may only be
made before sentence is imposed or imposition of sentence is
suspended. . . . [A]fter sentence has been imposed, the validity of a
guilty plea can be challenged under Crim. P. 35(c).” People v.
Dawson, 89 P.3d 447, 449 (Colo. App. 2003) (citation omitted).
6
¶ 13 To prevail on a claim of ineffective assistance of counsel, a
defendant must establish that (1) counsel’s performance fell below
the level of reasonably competent assistance demanded of attorneys
in criminal cases and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).
¶ 14 A motion raising ineffective assistance of counsel may be
denied without a hearing “if, but only if, the existing record
establishes that the defendant’s allegations, even if proven true,
would fail to establish one or the other prong of the Strickland test.”
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
If a criminal defendant has alleged acts or
omissions by counsel that, if true, could
undermine confidence in the defendant’s
conviction or sentence, and the motion, files,
and record in the case do not clearly establish
that those acts or omissions were reasonable
strategic choices or otherwise within the range
of reasonably effective assistance, the
defendant must be given an opportunity to
prove they were not.
Id.
7
A. Pre-Plea Advice
¶ 15 Initially, defendant asserts that (1) plea counsel improperly
advised him that “neither mens rea nor actus reus was an element
of the offense to which he pled”; and (2) had he (defendant) known
there was a mens rea element to the crime, he would not have
pleaded guilty. The record, however, refutes defendant’s assertion
that he did not know that there was a mens rea element to the
crime with which he was charged.
¶ 16 The prosecution pursued charges against defendant on a
complicity theory — a theory by which a person is held accountable
for a criminal offense committed by another. People v. Theus-
Roberts, 2015 COA 32, ¶ 35. Under the complicity statute, “[a]
person is legally accountable as [a] principal for the behavior of
another constituting a criminal offense if, with the intent to promote
or facilitate the commission of the offense, he or she aids, abets,
advises, or encourages the other person in planning or committing
the offense.” § 18-1-603, C.R.S. 2015. As pertinent in this case,
“[a] person commits the crime of murder in the second degree if the
person knowingly causes the death of a person.” § 18-3-103(1),
C.R.S. 2015 (emphasis added).
8
¶ 17 At the providency hearing, the court specifically informed
defendant that the crime to which he was about to enter a plea had
mens rea components:
THE COURT: “So let me talk to you a little bit
about the elements here that the defendant,
that is you, in the State of Colorado, on or
about July 30, 2010 knowingly caused the
death of another person, that person would be
[the victim]. . . .
....
. . . Now I’ve talked to your counsel earlier
kind of what the theory is here. I’ll talk to you
a little bit about it as well. But it’s written
here per complicity and I’m sure that [plea
counsel] has talked to you a little bit about
what that means.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Complicity just generally
a crime must have been committed, another
person must have committed all or part of the
crime. The defendant must have had
knowledge that the other person intended to
commit all or part of that crime and the
defendant must have the intent to promote or
facilitate the commission of the crime and the
defendant must have aided, abetted, advised
or encouraged the person in the plan of
committing the crime without any potential
affirmative defenses so that’s generally what
complicity means.
....
9
Have you talked generally with your counsel
about these concepts . . . of complicity and
conspiracy?
THE DEFENDANT: Yes.
(Emphasis added.)
¶ 18 But, defendant asserts, neither the court nor plea counsel
informed him that to be guilty as a complicitor, he must have
known that another person was going to kill the victim and he must
have intended, by his own conduct, to promote or facilitate the
other person’s act of killing that victim — circumstances which
were lacking under the factual basis provided by plea counsel.4
Defendant went forward with the plea, he says, only because plea
counsel “told him he could be found guilty simply based on his
presence in the car when [the shooter] shot [the victim].”
¶ 19 The district court assumed that counsel had advised (or failed
to advise) defendant as defendant alleged counsel did, and it
determined that counsel’s advice or lack of advice did not constitute
deficient performance on her part. The district court reached this
4 The “dual intent” requirement upon which defendant relies comes
from Bogdanov v. People, 941 P.2d 247, 250-51 (Colo. 1997),
amended, 955 P.2d 997 (Colo. 1997). The supreme court, however,
has since altered that requirement. See People v. Childress, 2015
CO 65M, ¶¶ 30, 34.
10
conclusion based on the Candelaria division’s discussion of how
complicity operates in conjunction with the doctrine of “transferred
intent.” In this regard, the Canderlaria division wrote:
We conclude that a person who intends to aid
the principal in committing murder and who
possesses the intent to murder a person is
criminally liable for the killing of an
unintended third party by the principal. The
killing of an unintended person is within the
scope of the “particular crimes” that the
perpetrators conspired to promote or facilitate
— first degree murder. To adopt defendant’s
argument would provide an absurd result
where the principal would be guilty of first
degree murder of an unintended victim while a
complicitor, who assists in facilitating and
promoting the crime, is exonerated. This
result would defeat the purpose of the
complicity statute . . . .
107 P.3d at 1092.
¶ 20 On appeal, defendant contends that the district court erred (1)
in determining that the doctrine of transferred intent applies to
crimes other than first degree murder (which was the charge in
Candelaria) or (2) in its application of the transferred intent
doctrine. We reject defendant’s first point but agree with his
second.
11
¶ 21 In Candelaria, the division recognized that the first degree
murder statute, by its terms, “incorporates the doctrine of
transferred intent and holds a principal liable for the death of an
unintended victim.” Id. at 1091; see § 18-3-102(1)(a), C.R.S. 2015
(A person commits first degree murder after deliberation where
“[a]fter deliberation and with the intent to cause the death of a
person other than himself, he causes the death of that person or of
another person.”) (emphasis added).
¶ 22 Defendant points out that the second degree murder statute
does not contain such language. Nevertheless, in People v. Marcy,
628 P.2d 69 (Colo. 1981), the supreme court concluded that the
doctrine of transferred intent applies to second degree murder:
There is no requirement that the knowing
conduct essential to extreme indifference
murder and second degree murder be directed
against the person actually killed. On the
contrary, both offenses are general intent
crimes, and as long as the offender knowingly
acts in the proscribed manner and causes the
death of another, he is guilty of the crime even
though the person killed is not the person
against whom the criminal conduct was
directed.
Id. at 79 (citation omitted).
12
¶ 23 Although the second degree murder statute was amended after
Marcy was decided, the statutory change did not alter the general
intent requirement described in Marcy. See Ch. 295, sec. 12, § 18-
3-103, 1996 Colo. Sess. Laws 1844. Therefore, we are bound by
this holding. See People v. Allen, 111 P.3d 518, 520 (Colo. App.
2004) (noting the Colorado Court of Appeals is “bound by the
decisions of the Colorado Supreme Court”).
¶ 24 Turning to the court’s application of the transferred intent
doctrine, we note that
[t]he doctrine . . . is a legal fiction that is used
to hold a defendant criminally liable to the full
extent of his or her criminal culpability.
Traditionally, the transferred intent theory has
been applied in so-called “bad aim” situations
where a defendant, while intending to kill one
person, accidentally kills an innocent
bystander or another unintended victim. . . .
Thus, the perpetrator’s intent to kill or injure a
specific victim transfers to the unintended
victim.
. . . The purpose of the doctrine is to impose
criminal liability upon an actor when he or she
intends to commit a criminal act, and “the
actual result differs from the result designed or
contemplated only in that a different person or
property was injured or affected.”
13
State v. Fekete, 901 P.2d 708, 714 (N.M. 1995) (citations omitted)
(quoting Model Penal Code § 2.03(2)(a) cmt. 3 (1985)); see People v.
Fernandez, 673 N.E.2d 910, 913 (N.Y. 1996) (“The doctrine of
‘transferred intent’ serves to ensure that a person will be prosecuted
for the crime he or she intended to commit even when, because of
bad aim or some other ‘lucky mistake,’ the intended target was not
the actual victim.” (quoting People v. Birreuta, 208 Cal. Rptr. 635,
639 (Cal. Ct. App. 1984))).
¶ 25 In Candelaria, the defendant and others sought to find and kill
a particular individual with whom they had earlier exchanged
gunfire; when they saw that individual’s car, the defendant’s
passenger opened fire at it, killing not that individual but someone
else. 107 P.3d at 1084. As defendant points out, that was a classic
transferred intent scenario: the perpetrator (the passenger in the
car) missed his intended target and hit someone else.
¶ 26 Here, taking as true the facts presented at the providency
hearing, there was no unintended victim, within the meaning of the
transferred intent doctrine. There was no mistake, on the part of
the shooter: he did not think he was shooting someone else, nor did
he try to shoot someone else but accidentally hit the victim.
14
Instead, the shooter meant to kill the very person that he did kill,
and that person was not someone defendant wanted to kill.
¶ 27 The district court viewed the “transferred intent” doctrine from
defendant’s perspective — that is, that he had intended to kill a
particular person but not the victim. But the People have cited no
authority, and we have found none, applying the “transferred
intent” doctrine from the perspective of a person who was not the
one who actually committed the crime itself. To the contrary, at
least one commentator has noted that when, as was alleged here,
“the direct perpetrator deliberately changes the object of the offence,
the doctrine of transferred malice does not apply to the indirect
participant despite the fact that from his point of view the
displacement of harm was accidental.” Shachar Eldar, Examining
Intent Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 42
(2015).5
5 In the course of his article, Eldar presented three scenarios where
the “Direct Perpetrator [of a Crime] Caused a Change of Object”;
noted that “English law . . . distinguished deviation caused by
accident (scenario 4) or mistake (scenario 5) from deliberate
deviation (scenario 6)”; and explained that “the indirect participant
is not liable if the direct perpetrator deviated purposefully from the
plan, as, for example, if he received a knife to kill A and resolves to
use the knife to kill B instead.” Shachar Eldar, Examining Intent
15
¶ 28 Nor would “complicity” principles necessarily make defendant
responsible for second degree murder under the facts presented at
the providency hearing. In Bogdanov v. People, 941 P.2d 247 (Colo.
1997), amended, 955 P.2d 997 (Colo. 1997), the supreme court
noted:
[S]ome jurisdictions have complicity statutes
that would hold an accomplice liable for any
crimes that are a reasonably foreseeable
consequence of the crime which the
accomplice intended to aid or encourage. The
Colorado General Assembly chose not to
extend accomplice liability to reasonably
foreseeable crimes, but rather limited such
liability to those particular crimes which the
accomplice intended to promote or facilitate.
Id. at 251 n.8 (citation omitted).
¶ 29 Under Colorado law,
a person is legally accountable as a principal
for the behavior of another constituting a
criminal offense if he aids, abets, advises, or
encourages the other person in planning or
committing that offense, and he does so with:
(1) the intent to aid, abet, advise, or encourage
the other person in his criminal act or
conduct, and (2) an awareness of
circumstances attending the act or conduct he
seeks to further, including a required mental
Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 39-41
(2015).
16
state, if any, that are necessary for
commission of the offense in question.
People v. Childress, 2015 CO 65M, ¶ 34.
¶ 30 Applied to the facts as presented at the providency hearing,
the principles announced in Bogdanov and Childress may not
support complicitor liability for the crime of first or second degree
murder. While it may have been foreseeable that someone would be
killed when the two men started out that night, defendant’s liability
does not, under Bogdanov, depend on the foreseeability of the
result. Rather, it must be tied to his own intent and awareness of
the circumstances under which his confederate acted. Defendant’s
position is, apparently, that he was not aware until it was too late
that the shooter intended to kill someone other than a person whom
defendant wanted to kill. These facts, if true, would not support a
conviction of defendant for first or second degree murder under a
complicitor theory. See Childress, ¶¶ 31-32 (discussing the mental
states required of a principal and complicitor for “knowing” or
“specific intent” crimes).
¶ 31 Because the facts, as presented at the providency hearing,
would not support a conviction for first or second degree murder
17
based on transferred intent and complicity principles, any failure on
the part of plea counsel to so advise defendant could have
constituted deficient performance. See Carmichael v. People, 206
P.3d 800, 806 (Colo. 2009) (“[C]ounsel’s failure to present defendant
with the opportunity to make [a] reasonably informed decision
[whether to accept a plea offer] will constitute deficient
representation.”).
¶ 32 Because the court summarily denied defendant’s
postconviction motion, the record does not disclose whether, in fact,
plea counsel misadvised (or failed to properly advise) defendant;
whether any failure on the part of counsel to properly advise
defendant would have been unreasonable under the then-prevailing
professional norms;6 or, if so, whether defendant would likely have
6 See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.”); Everett v.
Sec’y, Fla. Dep’t of Corr., 779 F.3d 1212, 1249 (11th Cir. 2015)
(“The Strickland performance standard is objectively reasonable
attorney conduct under prevailing professional norms. We look at
what professional norms existed at the time that the attorney
acted.”) (citations omitted); People v. Ray, 2015 COA 92, ¶ 37
(“Strickland’s deficient performance prong is governed by the law as
18
pleaded guilty anyway.7 Consequently, a remand for an evidentiary
hearing on these matters is necessary.
B. Failure To Advise Defendant of His Right To Appeal
¶ 33 Defendant also contends that the district court erred in
denying his claim that plea counsel was ineffective in failing to
advise him about appealing the ruling on his Crim. P 32(d) motion
to withdraw guilty plea. Again, we conclude that a remand is
necessary.
¶ 34 Twenty-five days after the court sentenced defendant,
defendant filed a pro se pleading, titled “Written Notice of Appeal /
Review of Sentence Will Be Sought,” informing the court that he
wished to “appeal the court’s decision [denying Rule 32(d) relief] and
. . . [his] sentence,” and requesting that the court appoint him an
attorney. No attorney was appointed; no appeal was taken.
it stood at the time of counsel’s allegedly deficient performance
. . . .”).
7 In the guilty plea context, the question of ineffective assistance of
counsel “prejudice” is analyzed in terms of whether there is a
reasonable probability that, but for counsel’s unprofessional errors,
the defendant would not have pleaded guilty. Hill v. Lockhart, 474
U.S. 52, 59 (1985); People v. Garcia, 815 P.2d 937, 943 (Colo.
1991).
19
¶ 35 Subsequently, in the supplemental Crim. P. 35(c) motion,
postconviction counsel asserted that plea counsel was ineffective in
“fail[ing] to advise [defendant] he had a right to appeal the denial of
his 32(d) motion and his sentence.”
¶ 36 The district court found that, even if it assumed plea counsel
failed to advise defendant of his right to appeal, defendant was not
entitled to relief because he had “identifie[d] no plausible appellate
challenge to the denial of his request to withdraw his pleas,” and
therefore, he was not prejudiced.
¶ 37 Before turning to the merits of this issue, we must first
address a point raised by the People — that is, that the record does
not reflect that the district court ever ruled on the Crim. P. 32(d)
motion, and thus there was nothing for defendant to appeal or be
advised of appealing.
¶ 38 Ordinarily, we would, as urged by the People, not give any
further consideration to this issue. See Feldstein v. People, 159
Colo. 107, 111, 410 P.2d 188, 191 (1966) (“[I]t is incumbent on the
moving party to see to it that the court rules on the matter he
urges. The trial court should be afforded the opportunity to so rule;
otherwise, the matter will ordinarily not be considered on writ of
20
error.”), abrogated on other grounds by Deeds v. People, 747 P.2d
1266 (Colo. 1987); People v. Young, 923 P.2d 145, 149 (Colo. App.
1995) (“[B]ecause he failed to request [from the trial court] a ruling
on this issue, defendant has waived it on appeal.”).
¶ 39 However, in this case, it was the district court that, only four
days before sentencing, ordered plea counsel to file the Crim. P.
32(d) motion. And, because the judge at sentencing was the same
judge who had ordered that the motion be filed, the district court
could reasonably have expected — and not been surprised by — the
filing of the motion.
¶ 40 Further, the judge who ordered the motion to be filed and who
sentenced defendant was the same judge who ruled on defendant’s
motions for postconviction relief. In denying relief on this part of
defendant’s postconviction motions, that judge did not base his
decision on any lack of a ruling on the Rule 32(d) motion. If
anything, he appeared to consider the Rule 32(d) motion to have
been implicitly denied when he proceeded to sentencing. We will
consider it in this same fashion on appeal.
¶ 41 Turning to the merits of defendant’s ineffective assistance of
counsel claim, the United States Supreme Court has said that “a
21
lawyer who disregards specific instructions from the defendant to
file a notice of appeal acts in a manner that is professionally
unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In
other cases, however,
where the defendant neither instructs counsel
to file an appeal nor asks that an appeal not be
taken, . . . whether counsel has performed
deficiently . . . is best answered by first asking
. . . whether counsel in fact consulted with the
defendant about an appeal. We employ the
term ‘consult’ to convey a specific meaning —
advising the defendant about the advantages
and disadvantages of taking an appeal, and
making a reasonable effort to discover the
defendant’s wishes. If counsel has consulted
with the defendant, the question of deficient
performance is easily answered: Counsel
performs in a professionally unreasonable
manner only by failing to follow the
defendant’s express instructions with respect
to an appeal. If counsel has not consulted
with the defendant, the court must in turn ask
. . . whether counsel’s failure to consult with
the defendant itself constitutes deficient
performance.
....
. . . [C]ounsel has a constitutionally imposed
duty to consult with the defendant about an
appeal when there is reason to think either (1)
that a rational defendant would want to appeal
(for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel
22
that he was interested in appealing. In making
this determination, courts must take into
account all the information counsel knew or
should have known. . . . Even in cases when
the defendant pleads guilty, the court must
consider such factors as whether the
defendant received the sentence bargained for
as part of the plea and whether the plea
expressly reserved or waived some or all appeal
rights. Only by considering all relevant factors
in a given case can a court properly determine
whether a rational defendant would have
desired an appeal or that the particular
defendant sufficiently demonstrated to counsel
an interest in an appeal.
Id. at 478-80 (citation omitted).
¶ 42 Here, either defendant or plea counsel filed several letters or
motions seeking to withdraw the guilty plea on the basis of a
purported misadvisement (and therefore misunderstanding) of the
elements of the offense for which defendant entered his plea. And,
twenty-five days after sentencing, defendant filed a pro se “notice of
appeal” in the district court.
¶ 43 Given defendant’s letters, plea counsel’s motions, and
defendant’s pro se notice of appeal, the record contains ample
reason to perceive that defendant would want to appeal the denial
of his motion to withdraw his plea and that he had reasonably
demonstrated that interest. The record reflects that plea counsel
23
was still representing defendant several months after sentencing.
For purposes of this appeal, we, like the district court, will assume
that plea counsel should have consulted with and advised
defendant about his right to appeal,8 but did not do so. Cf. Flores-
Ortega, 528 U.S. at 481 (“We expect that courts evaluating the
reasonableness of counsel’s performance using the inquiry we have
described will find, in the vast majority of cases, that counsel had a
duty to consult with the defendant about an appeal.”).
¶ 44 We, however, disagree with the court’s finding that defendant
had not been prejudiced because he had “identifie[d] no plausible
appellate challenge to the denial of his request to withdraw his
pleas.” In this context, ineffective assistance of counsel “prejudice”
is demonstrated not by the existence of plausible appellate
arguments, but rather by a showing that “there is a reasonable
probability that, but for counsel’s deficient failure to consult with
8 “[A]dequate consultation requires informing a client about his
right to appeal, advising the client about the advantages and
disadvantages of taking an appeal, and making a reasonable effort
to determine whether the client wishes to pursue an appeal,
regardless of the merits of such an appeal.” Thompson v. United
States, 504 F.3d 1203, 1206 (11th Cir. 2007). Counsel should also
inform a defendant that he is obligated to file an appeal if that is
what the defendant requests. Id. at 1207.
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[the defendant] about an appeal, [the defendant] would have timely
appealed.” Id. at 484; accord People v. Pendleton, 2015 COA 154,
¶ 38.
¶ 45 Because the court summarily denied defendant’s claim, the
record does not reflect whether plea counsel had consulted
defendant about appealing; what, if any, advice plea counsel might
have given defendant about appealing;9 what instructions defendant
may have given counsel; and, whether there is a reasonable
probability that defendant’s failure to timely appeal the denial of his
Rule 32(d) motion and sentence was attributable to counsel’s advice
or lack of advice. Consequently, the matter must be remanded for
an evidentiary hearing on these issues.
III. Conclusion
¶ 46 The order is reversed and the case is remanded for an
evidentiary hearing on the two claims of ineffective assistance of
counsel discussed in this opinion.
9 For example, whether counsel informed defendant that, although
she could file an appeal on his behalf, she herself could not pursue
that appeal because of the nature of the underlying issue (i.e., her
alleged ineffectiveness). Thus, the appeal, once perfected, would
need to be pursued either by conflict-free counsel or by defendant
himself.
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¶ 47 If defendant demonstrates that his guilty plea is infirm as a
result of plea counsel’s ineffective assistance, the district court shall
vacate the judgment of conviction and reinstate the original
charges, without needing to address defendant’s second claim.
¶ 48 If, however, defendant does not succeed in setting his
conviction aside, the court shall consider defendant’s second claim.
If the district court determines, with respect to that claim, that
defendant was deprived of his appellate rights as a result of
ineffective assistance of plea counsel, the court shall appoint
counsel for direct appeal and order counsel to file, in this court, a
motion to allow a late-filed notice of appeal with, as proof of good
cause for the late appeal, the district court’s order finding ineffective
assistance of plea counsel. See People v. Long, 126 P.3d 284, 287
(Colo. App. 2005).
¶ 49 The district court’s rulings on remand are subject to appeal by
either party.
¶ 50 JUDGE TAUBMAN and JUDGE STERNBERG concur.
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