People v. McGlaughlin , 428 P.3d 691 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 9, 2018
2018COA114
No. 15CA2008, People v. McGlaughlin — Civil Procedure — Law
Student Practice; Constitutional Law — Sixth Amendment —
Right to Counsel
As a matter of first impression, the division holds that when a
criminal defendant is represented by a student attorney under
C.R.C.P. 205.7, a supervising attorney must be physically present
in the courtroom during all critical stages of the criminal case. If
the supervising attorney is not present during a critical stage, the
defendant is denied his Sixth Amendment right to counsel. The
division further holds that all other violations of C.R.C.P. 205.7 are
properly analyzed under the test for ineffective assistance of counsel
announced in Strickland v. Washington, 466 U.S. 668 (1984).
The majority concludes that the record in this Crim. P. 35(c)
motion did not clearly establish that the supervising attorney was
present during defendant’s plea hearing. The case is therefore
reversed and remanded to the postconviction court for an
evidentiary hearing and further findings.
The dissent defers to the postconviction court’s findings of fact
that (1) the public defender was present in the courtroom during
defendant’s guilty plea and (2) the public defender adequately
supervised the student attorney. It therefore determines the record
supported the postconviction court’s conclusion that defendant did
not show, under Strickland, 466 U.S. at 687, that he had been
prejudiced by violations of C.R.C.P. 205.7. As a result, the dissent
would hold that the postconviction court did not err when it denied
defendant’s Crim. P. 35(c) motion without a hearing.
COLORADO COURT OF APPEALS 2018COA114
Court of Appeals No. 15CA2008
Boulder County District Court Nos. 12CR245, 12M689 & 12M1067
Honorable Ingrid S. Bakke, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jason Paul McGlaughlin,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BERGER
Loeb, C.J., concurs
Bernard, J., dissents
Announced August 9, 2018
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant
¶1 Like many states, Colorado permits law students to represent
defendants in criminal cases under limited circumstances and
subject to specific requirements that must be met by both the law
student and the supervising lawyer. C.R.C.P. 205.7.1
¶2 After pleading guilty to third degree assault and violation of a
protection order, defendant, Jason Paul McGlaughlin, moved to
vacate his plea and the resulting convictions, claiming that he was
deprived of his Sixth Amendment right to effective assistance of
counsel when he was represented only by a law student, not a
licensed lawyer, at his plea hearing.
1At the time of McLaughlin’s plea, the requirements for law practice
by a law student were contained in both statutes, sections 12-5-
116.1 and -116.2, C.R.S. 2012, and rules promulgated by the
supreme court, C.R.C.P. 226.5 (2012). See People v. Coria, 937
P.2d 386, 389 (Colo. 1997) (generally discussing the statutes’
requirements). In 2014, the supreme court promulgated C.R.C.P.
205.7, which replaced C.R.C.P. 226.5, Rule Change 2014(09),
Colorado Rules of Civil Procedure (Amended and Adopted by the
Court En Banc, Sept. 1, 2014), https://perma.cc/2LPT-3UQJ, and
the legislature later relocated the pertinent statutes to sections 13-
93-202 and -203, C.R.S. 2017, Ch. 192, sec. 1, §§ 13-93-202, -203,
2017 Colo. Sess. Laws 701-03. No substantive changes were made
when the court promulgated C.R.C.P. 205.7. Because the
requirements of both the rule and the statutes are essentially
identical, we address only the rule.
1
¶3 The postconviction court denied McGlaughlin’s Crim. P. 35(c)
motion without a hearing, concluding that the record disproved
McLaughlin’s claim. We disagree with the postconviction court’s
analysis and disposition and reverse the court’s order.
I. Relevant Facts and Procedural History
¶4 McGlaughlin was involved in a fight with his ex-girlfriend’s
new boyfriend. The prosecution charged him with second degree
assault (a felony) and a related traffic offense.
¶5 Based on McGlaughlin’s alleged conduct, his ex-girlfriend
obtained a temporary protection order that prohibited McGlaughlin
from contacting her. McGlaughlin allegedly violated the order twice,
which resulted in the filing of two additional misdemeanor charges.
¶6 McGlaughlin resolved all these charges by pleading guilty to
one count of third degree assault (a misdemeanor) and to one count
of violating a protection order (also a misdemeanor). At his plea
hearing, McGlaughlin was represented by a law student extern
2
practicing under C.R.C.P. 205.7.2 The court accepted
McGlaughlin’s plea and sentenced him to two years of probation.
¶7 McGlaughlin alleged the following material facts in his Crim.
P. 35(c) motion, which sought to vacate his plea and conviction:
 The deputy public defender who was assigned to
supervise the law student was not present in the
courtroom when he pleaded guilty.
 He was unaware, until after the plea hearing, that the
student was not, in fact, a licensed lawyer.
 While he pleaded guilty only to misdemeanors, he was
charged with a felony, and law students are prohibited
from representing defendants in felony proceedings.
 He never consented, in writing or otherwise, to
representation by a law student.
2 The title of C.R.C.P. 205.7 is “Law Student Practice,” and the rule
refers to practice by “Law Student Externs.” But in Coria, 937 P.2d
at 389, the supreme court referred to the law student there as a
“certified law student intern.” We perceive no distinction between
an intern and an extern, and we consider those terms to be
synonymous.
3
 The law student did not make a record during the plea
hearing that she was an extern, and the court was not
aware that she was one.
¶8 The postconviction court denied his motion without a hearing,
concluding that (1) the record established that the deputy public
defender was, in fact, present at the plea hearing; (2) McGlaughlin
was adequately represented by counsel at all critical stages of the
proceedings; (3) the record established that McGlaughlin was not
entitled to relief on the basis of his claim of ineffective assistance of
counsel; and (4) McGlaughlin’s plea was entered knowingly,
intelligently, and voluntarily.
II. The Postconviction Court Erred by Denying McGlaughlin’s
Claim Without a Hearing
¶9 McGlaughlin argues that his plea was constitutionally invalid
under the Sixth Amendment because he was not represented by a
licensed lawyer at a critical stage of his criminal case. He also
asserts that the assistance that he received from the law student
who represented him was ineffective because the deputy public
defender did not adequately supervise her.
4
A. Colorado’s Law Student Practice Rule
¶ 10 As relevant to our analysis, C.R.C.P. 205.7 imposes the
following conditions and limitations on the representation of
criminal defendants by law students:
• They cannot represent a defendant who “has been
charged with a felony.” C.R.C.P. 205.7(2)(a)(i).
• The defendant must consent, in writing, to the law
student’s representation. C.R.C.P. 205.7(2)(a)(i)(B).
• The defendant’s written consent “shall be made in the
record of the case and shall be brought to the attention of
the judge of the court.” C.R.C.P. 205.7(2)(a)(ii).
• When representing the office of the state public defender
and its clients, the law student must be “under the
supervision of the public defender or one of his or her
deputies.” C.R.C.P. 205.7(2)(a)(i)(B).
5
• The supervising lawyer must sign and approve all
pleadings, briefs, and other legal documents. C.R.C.P.
205.7(2)(a)(iii).3
B. The Effect of a Violation of C.R.C.P. 205.7
¶ 11 There is no serious disagreement that a number of these
conditions were violated in this case. Indeed, the postconviction
court so found. The question we must decide, then, is the effect, if
any, of those violations on McGlaughlin’s guilty pleas and resulting
convictions.4
¶ 12 A criminal defendant has a Sixth Amendment right to the
assistance of counsel at all critical stages of his criminal case. U.S.
Const. amend. VI; Wheat v. United States, 486 U.S. 153, 158-59
(1988); People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). “[T]he
acceptance of a plea offer and the entry of a guilty plea is a critical
3We note that there is some question whether subsection (2)(a)(iii)
applies to the law student practice governed by C.R.C.P.
205.7(2)(a)(i) or whether it is only applicable in situations that are
not governed by C.R.C.P. 205.7(2)(a)(i). Given our disposition, it is
unnecessary for us to decide this question.
4 We have no jurisdiction to address, and therefore express no
opinions on, the regulatory or disciplinary consequences, if any, of
any of these violations. See Colo. Supreme Court Grievance Comm.
v. Dist. Court, 850 P.2d 150, 152 (Colo. 1993).
6
stage, creating an entitlement to counsel.” Carmichael v. People,
206 P.3d 800, 805 (Colo. 2009). The interpretation and application
of the Sixth Amendment is a matter of federal, not Colorado, law.
Cmty. Hosp. v. Fail, 969 P.2d 667, 672 (Colo. 1998).
¶ 13 The licensure of lawyers, however, is a matter of state law.
People v. Coria, 937 P.2d 386, 389 (Colo. 1997). The Colorado
Supreme Court has the “sole authority to license attorneys . . . and
to prescribe the rules and circumstances under which a person may
appear as counsel in Colorado courts.” Id. Thus, conceivably, the
supreme court could, as a matter of state law, authorize law
students to engage in the plenary practice of law. We need not
address any Sixth Amendment ramifications of doing so, because
the supreme court has refused to exercise any such authority.
¶ 14 In Coria, the court rejected the argument that law students are
the equivalent of licensed lawyers when they practice under
C.R.C.P. 205.7. Id. There, the defendant argued that his Sixth
Amendment rights were violated when the trial court refused him
his counsel of choice — a law student extern. Id. The supreme
court held that the defendant’s Sixth Amendment rights were not
violated because “the law student intern was neither a deputy
7
public defender nor a licensed Colorado practitioner. Defendants
do not have a right under the Sixth Amendment to be represented
by unlicensed persons. ‘[A]n advocate who is not a member of the
bar may not represent clients . . . in court.’” Id. (quoting Wheat,
486 U.S. at 159). It follows that a law student is an “unlicensed
person[],” not a licensed lawyer. Id.
1. The Supervising Lawyer’s Presence
¶ 15 C.R.C.P. 205.7 does not explicitly require the presence of the
supervising lawyer in the courtroom during critical stages of
criminal cases, unlike the rules of virtually every other state that
authorizes the limited practice of law by law students. See, e.g., Ill.
Sup. Ct. R. 711(c)(2)(iii) (stating that a law student may participate
in criminal proceedings “as an assistant of the supervising member
of the bar, who shall be present and responsible for the conduct of
the proceedings”); Miss. Code Ann. § 73-3-207(e) (West 2017) (“Law
students may appear and participate in trials and hearings in
courts if the supervising attorney or clinical teacher is present and
supervising the student.”); Wash. Admission & Practice R. 9
(detailing the activities a law student may do without the presence
8
of the supervising lawyer and those where the supervising lawyer
must be present).
¶ 16 The Sixth Amendment, however, requires that a defendant
have a licensed lawyer at the critical stages of his criminal case,
Wheat, 486 U.S. 158-59, and, as noted, the Colorado Supreme
Court has held that law students are not licensed lawyers, Coria,
937 P.2d at 389. Thus, the Sixth Amendment requires that a
licensed lawyer be present in the courtroom when a law student
represents a criminal defendant during a critical stage of his
criminal case.
¶ 17 If the supervising lawyer is not in the courtroom during those
critical stages, no licensed lawyer is present, and the defendant is
denied his constitutional right to counsel guaranteed by the Sixth
Amendment. Such a complete deprivation of counsel is a structural
error, requiring reversal without regard to any showing of prejudice.
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984); Hagos v.
People, 2012 CO 63, ¶ 10.
2. Other Violations of C.R.C.P. 205.7
¶ 18 Having determined that it is a violation of C.R.C.P. 205.7 for
the supervising lawyer not to be present during critical stages of a
9
criminal case, and that such a violation constitutes structural error,
we now turn to the question of how to evaluate other possible
violations of C.R.C.P. 205.7. No Colorado appellate case has
addressed this question; however, a number of other states
(applying similar statutes or rules) have.
¶ 19 One line of cases holds that even if a licensed lawyer appears
at the proceeding, the substantial involvement by a law student
(such as the examination of witnesses), without the client’s consent
to representation by the law student, is a structural error. See
People v. Miller, 152 Cal. Rptr. 707, 709 (Cal. App. Dep’t Super. Ct.
1979); In Interest of C.B., 546 So. 2d 447, 448 (Fla. Dist. Ct. App.
1989); see also In re Denzel W., 930 N.E.2d 974, 986 (Ill. 2010)
(Freeman, J., dissenting).5
¶ 20 This conclusion is premised on the theory that allowing a non-
lawyer to participate in the proceeding without the defendant’s
actual consent constitutes a partial waiver of the right to counsel.
5 By citing these cases, which addressed statutes or rules that
required the client’s consent to be in writing, we do not address
whether the Sixth Amendment, as opposed to rules governing
student lawyer practice, requires written consent. See People v.
Miller, 152 Cal. Rptr. 707, 709 (Cal. App. Dep’t Super. Ct. 1979); In
Interest of C.B., 546 So. 2d 447, 448 (Fla. Dist. Ct. App. 1989).
10
Miller, 152 Cal. Rptr. at 709. Such a waiver must be knowingly,
voluntarily, and intentionally made. Id.
¶ 21 Another line of cases holds that all violations of the rules
governing student practice — other than the threshold question of
the supervising lawyer’s presence — are evaluated under the
Strickland v. Washington, 466 U.S. 668 (1984), test governing the
ineffective assistance of counsel. Washington v. Moore, 421 F.3d
660, 662 (8th Cir. 2005); Denzel W., 930 N.E.2d at 983-84; State v.
Loding, 895 N.W.2d 669, 676-82 (Neb. 2017).
¶ 22 We agree with those decisions that apply Strickland to
violations other than the absence of the supervising lawyer. They
appropriately distinguish the situation in which the defendant is
not represented by counsel at all — when only a non-licensed law
student is representing the defendant during a critical stage of his
criminal case — from the very different circumstance in which the
defendant is represented by a licensed lawyer but the
representation allegedly falls below the level of competence
demanded by the Constitution, due in part to the participation of
the law student.
11
¶ 23 While the presence or absence of a supervising lawyer in the
courtroom is a binary choice, other possible violations of C.R.C.P.
205.7, such as the quality and quantity of supervision, or whether
consent was given (orally, in writing, or both), are more nuanced.
Once it has been determined that the defendant was represented by
a licensed lawyer, it is entirely appropriate to determine the
adequacy of that representation by the test for ineffective assistance
of counsel announced in Strickland, 466 U.S. 668. See Denzel W.,
930 N.E.2d at 983.
C. Analysis of McGlaughlin’s Crim. P. 35(c) Motion
¶ 24 The supreme court has repeatedly held that a postconviction
court must hold an evidentiary hearing on a Crim. P. 35(c) motion
“unless the motion, the files, and the record clearly establish that
the allegations in the motion lack merit and do not entitle the
defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17 (emphasis
added) (citing White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo.
1988)). “Summary denial of a postconviction relief motion is also
appropriate if the claims raise only an issue of law, or if the
allegations, even if true, do not provide a basis for relief.” People v.
Venzor, 121 P.3d 260, 262 (Colo. App. 2005). “Likewise, if the
12
claims are bare and conclusory in nature, and lack supporting
factual allegations, the motion may also be denied without a
hearing.” Id.
¶ 25 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. People v. Gardner, 250 P.3d 1262,
1266 (Colo. App. 2010); see also People v. Higgins, 2017 COA 57,
¶ 11; People v. Smith, 2017 COA 12, ¶ 12; People v. Phipps, 2016
COA 190M, ¶ 20.
¶ 26 At the same time, we recognize the tension between de novo
review and the supreme court rule authorizing postconviction
courts to make some findings of fact without a hearing in deciding
Crim. P. 35(c) motions. See Crim. P. 35(c)(3)(V). But, contrary to
the dissent’s contention, not every disputed question of fact can be
decided without a hearing. Were that the case, the supreme court’s
default rule that a hearing is required unless an exception applies
would be swallowed by the exception itself.
¶ 27 To give effect to the supreme court’s default rule, deference to
a postconviction court’s factual finding by application of the clearly
erroneous standard is warranted only when the factfinding was
13
made using accepted procedures and when the record clearly
establishes the fact. Neither requirement was met here.
¶ 28 Ordinarily, of course, in order to properly find disputed facts, a
court holds a hearing and considers all (not just some) of the
relevant evidence, documentary and testimonial, before making a
factual finding. See, e.g., J.A. Walker Co. v. Cambria Corp., 159
P.3d 126, 130 (Colo. 2007) (applying this rule to a fraudulent
inducement challenge to an arbitration agreement); Archangel
Diamond Corp. v. Lukoil, 123 P.3d 1187, 1190 (Colo. 2005), as
modified on denial of reh’g (Dec. 19, 2005) (applying this rule in the
C.R.C.P. 12(b)(2) context); People v. Wunder, 2016 COA 46, ¶ 34
(“[A] trial court may not, consistent with procedural due process,
enter judgments for civil penalties and restitution on disputed facts
without holding an evidentiary hearing.”).
¶ 29 Here, the postconviction court relied on some evidence to find
that the public defender was present in the courtroom during
McGlaughlin’s plea hearing. But, the court did not consider all of
the evidence, some of which would support a finding that the public
defender was not present. And, indisputably, it did not consider
the evidence perhaps most probative of the question — testimony
14
by the public defender and even the presiding judge. For this
reason alone, the court’s factual finding is not entitled to deference
under the clearly erroneous standard of review.
¶ 30 Moreover, the second requirement for deference is also lacking
— the fact is not “clearly established” by the existing record.
¶ 31 To effectuate the supreme court’s relevant holdings,
postconviction courts may only dispense with a hearing when the
record clearly establishes that the defendant is not entitled to relief.
Kazadi, ¶ 17. That is, when a disputed issue of material fact is
central to the determination of whether the defendant has alleged a
meritorious postconviction claim, that fact may be determined by
the court only when the fact itself is “clearly established.” See IV
ABA Standards for Criminal Justice § 22-4.6(a) (2d ed. 1980) (“A
plenary hearing to receive evidence, by testimony or otherwise, is
required whenever there are material questions of fact which must
be resolved in order to determine the proper disposition of the
application for relief.”). It follows that a postconviction court may
make a dispositive factual finding without a hearing only when the
fact in question is “clearly established.”
15
¶ 32 For the reasons we articulate below, the historical finding of
fact that the public defender was present at the plea hearing is not
clearly established by the existing record. As a result, contrary to
the dissent’s suggestion, we may not defer to that factual finding.
We must instead remand for the postconviction court to hold an
evidentiary hearing on that question and then make findings of fact
after considering all of the relevant evidence.
1. The Public Defender’s Presence
¶ 33 As noted, McGlaughlin specifically alleged in his Crim. P. 35(c)
motion that the deputy public defender was not present in the
courtroom when he pleaded guilty.
¶ 34 In finding that the deputy public defender was present at the
plea hearing, the postconviction court primarily relied on the plea
court’s minutes.6 Based on our review of the court’s minutes
(reproduced below), we are convinced that those minutes alone
6 In that respect, we note that the judge who decided the
postconviction motion was not the same judge who presided over
the plea hearing. Thus, the postconviction court could have had no
personal knowledge that the public defender was present at the plea
hearing.
16
cannot properly be the basis of the court’s factual finding made
without a hearing.
¶ 35 First, the minutes relied on by the postconviction court reflect
two separate proceedings: the plea hearing, which took place on
November 19, 2012, and the sentencing hearing, which took place
on January 10, 2013. Even if the deputy public defender was
present at the sentencing hearing (and he apparently was based on
the transcript of that hearing), such a determination is not
dispositive of the question whether the deputy public defender also
was present at the critical plea hearing.
¶ 36 We cannot determine from the face of the minutes whether the
deputy public defender was present at the plea hearing, the
17
sentencing hearing, or both. Nor can we determine when the
apparently different handwritten notations were made by the
presiding judicial officer. Importantly, we cannot tell if the name of
the deputy public defender (A. Egizi) was inserted at the sentencing
hearing or at the plea hearing.
¶ 37 Second, there is other evidence in the record that supports a
finding that the public defender was not present. The transcript of
the plea hearing, for example, does not reflect the appearance of the
deputy public defender in any respect. He is not listed on the
portion of the hearing transcript that traditionally contains the
names of the lawyers who were present and participated in the
hearing. So far as can be gleaned from the transcript, the deputy
public defender never entered his appearance or introduced the law
student to the court at the hearing as required by C.R.C.P.
205.7(2)(b)(i)(D). See Coria, 937 P.2d at 390.
¶ 38 The plea court also never addressed the deputy public
defender at the hearing (indeed, from the context of the presiding
judge’s statements, we cannot tell whether the judge was aware
that the person representing McGlaughlin was not a licensed
lawyer, but instead a law student).
18
¶ 39 Third, the law student alone signed the “Attorney Certificate to
the Court” in McGlaughlin’s plea agreement and Crim. P. 11
advisement. Although the signature line is labeled as “Attorney’s
Signature,” only the law student (who is not a lawyer) signed the
document. The deputy public defender’s name does not appear
anywhere on the plea agreement.
¶ 40 While the court minutes constitute relevant evidence on the
question of whether the deputy public defender was present at the
plea hearing, they are by no means conclusive of that question, and
they do not rise to the level of certainty required to dispense with an
evidentiary hearing.7 In other words, the court minutes do not,
together with any other information in the record, “clearly establish”
that the deputy public defender was at the plea hearing. It follows
7 The rule that the interpretation of an unambiguous writing is a
question of law, see O’Brien v. Vill. Land Co., 794 P.2d 246, 249
(Colo. 1990), provides no support for the postconviction court’s
finding. In this case, no single writing is dispositive of the question
of whether the public defender was present at the plea hearing.
Indeed, to make a reasoned determination of that question, a fact
finder must consider multiple writings (the court minutes,
transcripts of the plea hearing, and the documents executed in
connection with the plea hearing) as well as testimony of percipient
witnesses: the defendant, the public defender, the prosecutor, and
even the judge that presided over the hearing.
19
that the postconviction court erred in deciding this quintessentially
factual question without a hearing.
2. Effectiveness of McGlaughlin’s Counsel
¶ 41 Just as we cannot on this record sustain the postconviction
court’s finding that the deputy public defender was present during
McGlaughlin’s plea hearing, we also cannot sustain the court’s
findings and conclusions without a hearing that the law student
was adequately supervised — which was central to its conclusion
that McGlaughlin received the effective assistance of counsel.
¶ 42 The postconviction court concluded — based in part on its
erroneous finding that the deputy public defender was present at
the plea hearing — that the law student was supervised in her
representation of McGlaughlin. It also found that the law student
was “involved in a supervised capacity with two licensed attorneys
well before [McGlaughlin] entered a guilty plea.” While that finding
may be supported by the record, we conclude that absent a hearing,
it is insufficient to support a further finding that the deputy public
defender adequately supervised (or supervised at all) the law
student in connection with the plea hearing.
20
¶ 43 Irrespective of whether the law student previously represented
McGlaughlin or appeared on his behalf at other hearings, applying
the Kazadi standard, the record does not “clearly establish” the
quantity or quality of supervision respecting the legal advice
provided in connection with the plea hearing. Therefore, the
postconviction court erred in deciding this question without the
benefit of a hearing.
3. An Evidentiary Hearing is Required
¶ 44 We therefore remand the case to the postconviction court for
an evidentiary hearing. Based on the evidence presented at that
hearing, the postconviction court must first determine if the deputy
public defender was present during the plea hearing. If it finds that
the deputy public defender was not present at McGlaughlin’s plea
hearing, then McGlaughlin was deprived of his constitutional right
to counsel — a structural error — and the postconviction court
must vacate McGlaughlin’s plea and judgment of conviction, and
reinstate the original charges. See Denzel W., 930 N.E.2d at 982;
see also Hagos, ¶ 10; Carmichael, 206 P.3d at 805.
¶ 45 If, on the other hand, the postconviction court finds that the
deputy public defender was present during the plea hearing, it
21
must then reanalyze McGlaughlin’s remaining claims — including
his claim that the law student was not adequately supervised —
under Strickland. See Denzel W., 930 N.E.2d at 983; see also
Moore, 421 F.3d at 662; Loding, 895 N.W.2d at 680-81.
¶ 46 Finally, if, based on the evidence presented, the court finds
that the deputy public defender was present during McGlaughlin’s
plea hearing and that McGlaughlin did not meet his burden under
Strickland to show that he was deprived of the effective assistance
of counsel, McGlaughlin is not entitled to relief and the court
should again deny his Crim. P. 35(c) motion.
III. Conclusion
¶ 47 The order denying McGlaughlin’s Crim. P. 35(c) motion is
reversed, and the case is remanded for the proceedings directed
above.
CHIEF JUDGE LOEB concurs.
JUDGE BERNARD dissents.
22
JUDGE BERNARD, dissenting.
¶ 48 I disagree with the majority’s decision to reverse the trial
court’s order. I therefore respectfully dissent.
I. Introduction
¶ 49 Generally, the Sixth Amendment requires a licensed attorney
to represent a client in court. Wheat v. United States, 486 U.S. 153,
159 (1988). But C.R.C.P. 205.7 allows certified law students to
practice in certain circumstances. See People v. Coria, 937 P.2d
386, 389 (Colo. 1997). As is relevant to my analysis, Rule 205.7
establishes the following conditions for law student externs who
work under the supervision of public defenders. They cannot
represent clients facing felony charges. C.R.C.P. 205.7(2)(a)(i). The
client must consent to the student attorney’s representation.
C.R.C.P. 205.7(2)(a)(i)(B). The consent must be made a part of the
record in the case and brought to the court’s attention. C.R.C.P.
205.7(2)(a)(ii). And the student attorney must be “under the
supervision of the public defender or one of his or her deputies.”
C.R.C.P. 205.7(2)(a)(i)(B).
23
II. Defendant’s Contentions
¶ 50 Defendant filed his Crim. P. 35(c) motion in May 2014. As is
pertinent to my analysis, it raised three contentions.
¶ 51 First, he claimed that he was denied his Sixth Amendment
right to counsel because he had been represented by a student
attorney, not by a licensed attorney — a public defender in this case
— when he pled guilty. Indeed, he added, the public defender was
not even present when he entered his guilty plea.
¶ 52 Second, the assistance that he received from the student
attorney was ineffective because the public defender had not
adequately supervised her. He supported this claim by pointing to
violations of Rule 205.7:
• the student attorney represented him on a felony charge,
even though Rule 205.7(2)(a)(i) prevented her from doing
so;
• he did not consent to the student attorney’s
representation, even though Rule 205.7(2)(a)(i)(B)
required such consent; and
24
• the student attorney did not make a record during the
plea hearing that she was a student attorney, so the
court was not aware that she was one.
¶ 53 Third, he claimed that the student attorney was ineffective
because she did not adequately advise him that his guilty plea to
third degree assault would include a finding that it was a crime of
domestic violence or that the domestic violence finding could have
consequences in future proceedings. He added that the public
defender had not discussed the particulars of the plea with him or
signed the plea agreement.
¶ 54 I disagree with all three contentions. As the reader can see,
they contain several factual assertions, including (1) the public
defender was not present when defendant entered his guilty plea;
and (2) the public defender did not adequately supervise the
student attorney. The postconviction court made specific findings
of fact concerning these two contentions. Defendant submits that
we should disregard them. I cannot do so because the record
supports them.
25
III. The Postconviction Court’s Factual Findings
¶ 55 John Adams said, while arguing in defense of the British
soldiers during the Boston Massacre trial in 1770, that “[f]acts are
stubborn things; and whatever may be our wishes, or inclinations,
or the dictates of our passions, they cannot alter the state of facts
and evidence.” David McCullough, John Adams 68 (2001). The
stubborn things in this case are the postconviction court’s factual
findings.
¶ 56 One of these stubborn things concerned a handwritten
notation of a public defender’s name on something called the trial
court’s “minutes.” These minutes contained both the student
attorney’s name and the public defender’s name. The
postconviction court found that the notation in the minutes meant
that the public defender and the student attorney had both been
present, representing defendant, during the plea hearing.
¶ 57 But defendant claims that “it appears” that the public
defender’s name “was added at a later time,” after the student
attorney’s name. This suggests, defendant continues, that the trial
court wrote the public defender’s name on the minutes during the
sentencing hearing, not during the plea hearing. Defendant
26
supports this claim by pointing out that the public defender’s name
was “written at an angle” after the student attorney’s name.
¶ 58 The other stubborn thing involved the postconviction court’s
finding that the student attorney was adequately supervised.
Defendant claims that the record contradicts this finding.
¶ 59 This is all very interesting. But defendant’s contentions about
the postconviction court’s factual findings arise too late in the
process because they are directed to the wrong audience. We
review a postconviction court’s decision to deny a Crim. P. 35(c)
motion de novo, but we defer to the court’s factual findings if the
record supports them. Dunlap v. People, 173 P.3d 1054, 1063 (Colo.
2007). In other words, we are an appellate court, and we cannot
find facts. People v. A.W., 982 P.2d 842, 845 (Colo. 1999). This
proposition is so fundamental that our supreme court has
described it as “axiomatic.” Gebhardt v. Gebhardt, 198 Colo. 28,
30, 595 P.2d 1048, 1050 (1979).
¶ 60 Rather, it was the postconviction court’s job in this case to
find the facts. If defendant’s contention had any force, it was up to
the postconviction court to recognize it. “The empirical component
of . . . fact finding[] is the basic responsibility of the trial court,
27
involving as it does a weighing of evidence and an assessment of
credibility.” People v. Pearson, 725 P.2d 782, 786 (Colo. 1986)
(Quinn, C.J., dissenting). “[A]ppellate courts are not to decide
factual questions de novo, reversing any findings they would have
made differently.” Maine v. Taylor, 477 U.S. 131, 145 (1986).
¶ 61 We will “set aside a trial court’s factual findings only when
they are so clearly erroneous as to find no support in the record.”
People v. Beauvais, 2017 CO 34, ¶ 22. “Where there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Anderson v. City of Bessemer
City, 470 U.S. 564, 574 (1985). “This is so even when the [trial]
court’s findings do not rest on credibility determinations, but are
based instead on physical or documentary evidence or inferences
from other facts.” Id. Indeed, “[i]f the [trial] court’s account of the
evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it.” Id. at 573-74.
¶ 62 According to the opposing views of defendant and the
prosecution, there are two permissible ways to view the evidence in
this case. On the one hand, the postconviction court could have
found, as defendant suggests, that the notation of the public
28
defender’s name on the minutes occurred after the plea hearing and
that the student attorney had not been adequately supervised. On
the other hand, it could have found, as it ultimately did, that the
notation meant that the public defender was present during the
plea hearing and that the student attorney had been adequately
supervised.
¶ 63 Does the record support the postconviction court’s factual
findings that the public defender attended the plea hearing and that
he adequately supervised the student attorney? The answer to this
question is “yes,” particularly because the court made other,
complementary findings: (1) “public defenders represented . . .
[d]efendant in his three cases after he dismissed private counsel”;
(2) public defenders had appeared on defendant’s behalf “on at least
five separate occasions”; (3) the student attorney had been “involved
in . . . [d]efendant’s representation well before he entered his plea”;
(4) the presentence report “identified . . . [d]efendant’s counsel” as
both the public defender and the student attorney; and (5) the
public defender had been “significantly involved in and primarily
responsible for the plea negotiations that resulted in” defendant’s
guilty plea.
29
¶ 64 The postconviction court also found that the student attorney
had been supervised during the plea hearing. More specifically, the
court found that
[b]ased upon [the student attorney’s] ongoing
involvement in the county court cases and
prior appearance with . . . [d]efendant, the
[c]ourt does not find . . . [d]efendant’s claim
that he only met [the student attorney] on the
day of his sentencing to be credible. Rather,
the [c]ourt finds that claim to be directly
contradicted by the court files. [The student
attorney] was involved in a supervised capacity
with two licensed attorneys well before . . .
[d]efendant entered a guilty plea. Court
minutes indicate that she continued to be
supervised at the disposition hearing by [the
public defender], even though he did not speak
on the record. Based on the foregoing, the
[c]ourt concludes that . . . [d]efendant was
adequately represented by counsel at all
critical stages of the proceedings and that . . .
[d]efendant’s claim does not entitle him to
post-conviction relief.
¶ 65 Based on the interlocking nature of all of these findings, I
conclude that they were “plausible in light of the record viewed in
its entirety.” Anderson, 470 U.S. at 573-74. I am therefore duty
bound to reject defendant’s contention. See id.
¶ 66 “The rationale for deference to the original finder of fact is not
limited to the superiority of the trial judge’s position to make
30
determinations of credibility.” Id. at 574. “The trial judge’s major
role is the determination of fact, and with experience in fulfilling
that role comes expertise.” Id. When an appellate court duplicates
a trial court’s factfinding, the result “would very likely contribute
only negligibly to the accuracy of fact determination at a huge cost
in diversion of judicial resources.” Id. at 575.
¶ 67 Defendant implicitly asks us to ignore the postconviction
court’s expertise. See id. at 574. This expertise includes familiarity
with the records, including the minutes, that trial courts generate
in the postconviction court’s judicial district. I cannot ignore the
postconviction court’s expertise because doing so (1) would not
further the efficacy of our review; (2) would not advance the
factfinding ball one inch; and (3) would exact “a huge cost” by
diverting our resources from deciding issues of law. Id. at 575.
¶ 68 The postconviction court evaluated the entire record, including
the minutes, and the court placed the minutes in the context of
other facts. Another fact finder might have found the facts to favor
defendant, but that is not a proper contention to raise in an
appellate court. See Taylor, 477 U.S. at 145. The court found what
it found, and the record supports what it found. So, as far as the
31
postconviction court’s factual findings are concerned, our job was
over before it started. To paraphrase John Adams’s eloquent
statement, whatever defendant’s wishes, or inclinations, or the
dictates of his passions may be, they cannot now alter the
postconviction court’s stubborn factual findings.
¶ 69 It is beyond dispute that we review a postconviction court’s
decision to deny a Crim. P. 35(c) motion without a hearing de novo.
See, e.g., People v. Smith, 2017 COA 12, ¶ 12. This means that we
review de novo the postconviction court’s decision to deny
defendant’s Crim. P. 35(c) motion because the record clearly
established that defendant was not entitled to relief. People v.
Venzor, 121 P.3d 260, 262 (Colo. App. 2005).
¶ 70 What does the phrase “clearly established” mean in the
context of a Crim. P. 35(c) proceeding? Neither the supreme court
nor the court of appeals has defined this term. And it does not
appear in Crim. P. 35(c).
¶ 71 Instead, Crim. P. 35(c)(3)(IV) states that, “[i]f the motion and
the files and record of the case show to the satisfaction of the court
that the defendant is not entitled to relief, the court shall enter
written findings of fact and conclusions of law in denying the
32
motion.” (Emphasis added.) It is obvious in this case that the
motion, the file, and the record showed, to the postconviction
court’s satisfaction, that defendant was not entitled to relief.
¶ 72 And the phrase “clearly established” is likewise absent from
Crim. P. 35(c)’s instructions to a postconviction court about what to
do if its review of the motion, the file, and the record does not
satisfy it that the defendant is not entitled to relief. In such
circumstances, the postconviction court should serve the
prosecution with the defendant’s motion, appoint the public
defender, and consider the public defender’s response. Crim. P.
35(c)(3)(V). But, even then, “the court shall grant a prompt hearing
on the motion unless, based on the pleadings, the court finds that it
is appropriate to enter a ruling containing written findings of fact
and conclusions of law.” Id. (emphasis added).
¶ 73 It is my view that “clearly established” refers to the quality of
the proof in the record rather than to the simple existence of a
disagreement about what the proof means. Certainly, some
disagreements raise serious questions about the quality of the
proof. But, for the reasons that I have explained above, the
disagreement in this case does not raise such serious questions.
33
¶ 74 Defendant’s Crim. P. 35(c) motion was not filed during a
pretrial stage of the proceedings when he was still presumed to be
innocent. And we are not considering the equivalent of an outcome-
determinative civil motion that a litigant has filed before the merits
of the case have been decided, such as those covered by C.R.C.P.
12(b)(2) (lack of jurisdiction), C.R.C.P. 12(b)(5) (failure to state a
claim), or C.R.C.P. 56 (summary judgment). Rather, this Crim. P.
35(c) proceeding occurred after the defendant had pled guilty.
Indeed, as our supreme court pointed out, “[i]n a Crim. P. 35(c)
proceeding, there is a presumption of validity attaching to a
judgment of conviction.” People v. Naranjo, 840 P.2d 319, 325
(Colo. 1992).
¶ 75 The focus of defendant’s contention in this case is on whether
the record clearly established that he was not entitled to relief. I
think that, when evaluating whether the record did so, we must, in
the course of our de novo review, defer to the postconviction court’s
factual findings. If not, what are those factual findings for?
Defendant does not cite any case, and I have not found one, which
holds that, as part of our de novo review, we should decline to defer
to the postconviction court’s factual findings about the record.
34
¶ 76 And what happens if we do not defer to those findings?
(Remember that deferring to the factual findings does not mean
affirming them if the record does not support them.) I think that
puts us in the unenviable position of acting as super fact finders,
substituting our view of the facts for the postconviction court’s view.
As I have explained above, that is not a productive place for an
appellate court.
IV. Application of the Sixth Amendment
¶ 77 Because I would defer to the postconviction court’s findings, I
turn to answering this question: What happens when one or more
of the conditions in Rule 205.7, which governs the practice of law
student externs, has not been met? I think that this question leads
me to sequential analyses, both of which involve the Sixth
Amendment.
¶ 78 First, I must decide whether defendant’s Sixth Amendment
right to counsel was denied. I conclude that it was not because the
postconviction court found that the public defender was present
when defendant pled guilty.
¶ 79 Second, I must figure out whether defendant was denied his
right to effective assistance of counsel under the test established by
35
Strickland v. Washington, 466 U.S. 668, 687 (1984). I conclude that
he was not, so I agree with the postconviction court’s determination
that defendant did not “meet his burden to satisfy the Strickland
standard.”
A. The Law of Other Jurisdictions
¶ 80 I begin my analysis by recognizing that, although the slate is
clean in Colorado, other states have analyzed similar contentions
about law students who represent defendants under local rules or
statutes. When I look at these cases, I find two relevant themes.
¶ 81 One theme is that, as long as a licensed attorney is present,
the participation of a law student in the defendant’s case who has
not complied with the applicable rules does not deny the defendant
the Sixth Amendment right to counsel. In re Denzel W., 930 N.E.2d
974, 982 (Ill. 2010) (“The presence of the licensed attorney, who
certainly is counsel for constitutional purposes, is not somehow
‘cancelled out’ by the law student’s participation, even if the law
student has not complied with” the pertinent rules governing the
student’s practice.); accord State v. Terrazas, 347 P.3d 1151, 1152
(Ariz. Ct. App. 2015) (citing In re Denzel W., 930 N.E.2d at 982);
People v. Perez, 594 P.2d 1, 8 (Cal. 1979) (“Because defendant was
36
at all times represented by both an actively participating
supervising attorney and a certified law student, he did have
representation of counsel.”); Collins v. State, 14 N.E.3d 80, 85 (Ind.
Ct. App. 2014); State v. Loding, 895 N.W.2d 669, 679-80 (Neb.
2017) (holding there was no violation of the defendant’s right to
counsel when a licensed attorney was present at all times during
the defendant’s trial and during all interactions between the
defendant and the student attorney).
¶ 82 The corollary to this first theme is that a defendant’s right to
counsel is violated if the defendant is represented by an
unsupervised and unprepared law student. Adams v. State, 693
N.E.2d 107, 109 (Ind. Ct. App. 1998) (“In view of the lack of any
meaningful supervision by an attorney . . . over [the law student’s]
representation, and coupled with [the student’s] total lack of
familiarity with the case, we conclude that [the defendant] was
effectively unrepresented . . . .”) (citation omitted); Benbow v. State,
614 So. 2d 398, 403-04 (Miss. 1993) (Because “the sponsoring
attorney [was not] present with his intern in the courtroom” when
the defendant entered a guilty plea, the defendant was “not
represented by counsel . . . .”); City of Seattle v. Ratliff, 667 P.2d
37
 630, 635 (Wash. 1983) (“We hold that [the defendant] was denied
his right to counsel because the trial court prevented [the law
student] from attaining the status of ‘counsel’ by apparently
preventing him from contacting his supervis[ing]” attorney.); see
also United States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (The
United States Supreme Court “has uniformly found constitutional
error without any showing of prejudice [only] when counsel was
either totally absent, or prevented from assisting the accused
during a critical stage of the proceeding.”).
¶ 83 (I note that at least three cases from Florida’s Fourth District
Court of Appeal have held that a violation of the law student
practice rules was, under the facts of these cases, a sufficient basis
to reverse a conviction. D.K. v. State, 881 So. 2d 50, 51-52 (Fla.
Dist. Ct. App. 2004); L.R. v. State, 698 So. 2d 915, 916 (Fla. Dist.
Ct. App. 1997); In Interest of J.H., 580 So. 2d 162, 163 (Fla. Dist.
Ct. App. 1991). People v. Miller, 152 Cal. Rptr. 707, 709 (Cal. App.
Dep’t Super. Ct. 1979), and the dissent in In re Denzel W., 930
N.E.2d at 986 (Freeman, J., dissenting), reach similar results. I am
not persuaded by these cases because they are contrary to the
majority trend, to which I refer above.)
38
¶ 84 The second theme is that “a supervising attorney does not
satisfy his or her obligation . . . merely by being physically present.”
In re Denzel W., 930 N.E.2d at 983. Courts must also apply the
standard Strickland two-step analysis in such circumstances. Id.;
see also Washington v. Moore, 421 F.3d 660, 662-63 (8th Cir. 2005);
United States v. Rimmell, 21 F.3d 281, 286 (8th Cir. 1994); Duval v.
State, 744 So. 2d 523, 525-26 (Fla. Dist. Ct. App. 1999); Loding,
895 N.W.2d at 680-81.
¶ 85 This second theme means that the defendant must show that
(1) the representation was deficient because it fell below the level of
reasonably competent assistance; and (2) the deficient
representation was prejudicial because there was a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. People v. Lopez, 2015
COA 45, ¶ 58 (citing Strickland, 466 U.S. at 687). The defendant
must establish both of these prongs to obtain relief. Davis v.
People, 871 P.2d 769, 779 (Colo. 1994).
B. Application of the Law
¶ 86 I initially conclude that defendant was not denied his Sixth
Amendment right to counsel. Not only did the student attorney
39
represent him at the time of his plea, but the postconviction court
found that the public defender was present during the plea and that
the public defender adequately supervised the student attorney.
See In re Denzel W., 930 N.E.2d at 982; accord Terrazas, 347 P.3d
at 1152; Perez, 594 P.2d at 8; Collins, 14 N.E.3d at 85; Loding, 895
N.W.2d at 679-80. As I recognized above, these were factual
findings to which I must defer. See People v. Gardner, 250 P.3d
1262, 1266 (Colo. App. 2010).
¶ 87 Turning to defendant’s ineffective assistance of counsel claim,
I initially disagree with the prosecution’s assertion that he did not
raise it in the postconviction court. True, his pro se assertion was
inartful: he was “not adequately represented by the public defender”
because the student attorney was “not . . . an attorney at all.” But
he also alleged that (1) he was “present[ing] questions as to whether
. . . [the student attorney and two public defenders who represented
him] fail[ed] to advise on complete charges” and as to whether they
had engaged in “collective, fraudulent misrepresentation”; (2) “the
final defense counsel [meaning the student attorney], who
misrepresented [her] credentials through[out] negotiations, unduly
influenced the defendant by discouraging the trial procedures based
40
on fear of an affirmative defense by way of self defense . . . .”; and
(3) “the so-claimed public defender [the student attorney] did not
hold a prescient apprehension during her representation of the
defendant.”
¶ 88 These various allegations may not be a model of pleading
clarity. But I think that they sufficiently raised an ineffective
assistance of counsel claim. See Rael v. People, 2017 CO 67, ¶ 17
(parties do not need to employ “talismanic language” to preserve a
contention). So, like the postconviction court, I will proceed to
address the claim’s merits.
¶ 89 Even if I assume that the student attorney’s representation fell
below the level of reasonably competent assistance because she, or
the public defender, violated Rule 205.7, I nonetheless conclude
that defendant has not satisfied the prejudice prong of the
Strickland test. See Davis, 871 P.2d at 779. This is so because he
has not shown that there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. Lopez, ¶ 58.
¶ 90 Defendant contends that he suffered prejudice because he
would not have pled guilty if he had known that the plea included a
41
domestic violence finding. He adds that this finding subjected him
to greater social stigma. But the record indicates that he was aware
that the plea would include such a finding. For example, the
prosecution’s motion to add the third degree assault count clearly
stated that it involved a domestic violence finding. And the written
plea agreements for the third degree assault charge and the
violation of a protection order charge, which defendant signed,
stated that he was pleading guilty to a domestic violence offense.
¶ 91 Aside from pointing to the putative violations of Rule 205.7,
defendant did not explain how those violations prejudiced him. For
one example, although he alleged that the public defender did not
discuss the plea disposition with him, he did not allege that the
student attorney had misadvised him about anything besides the
domestic violence finding.
¶ 92 Indeed, courts in other jurisdictions have held that such
violations do not, without more, constitute prejudice for purposes of
an ineffective assistance of counsel inquiry. See Washington, 421
F.3d at 662-63; Duval, 744 So. 2d at 525-26; People v. Smith, 893
N.E.2d 971, 974 (Ill. Ct. App. 2008) (concluding that the
defendant’s lack of consent to or knowledge of representation by law
42
student during hearing on motion to suppress did not constitute
ineffective assistance of counsel).
¶ 93 My conclusion does not mean that Rule 205.7’s requirements
are “mere suggestions.” In re Denzel W., 930 N.E.2d at 980 (quoting
People v. Houston, 874 N.E.2d 23, 34 (Ill. 2007)). As the Nebraska
Supreme Court pointed out in Loding, “there is a disciplinary
process established to adjudicate rule violations.” 895 N.W.2d at
681. And, if defendant had linked the rule violations with
demonstrable prejudice, he could have shown that his counsel had
been ineffective. But the simple violation of Rule 205.7 “is not the
matter before us in this appeal.” Id.
¶ 94 I would therefore affirm the postconviction court’s order
denying defendant’s request for a hearing because his Crim. P. 35(c)
motion did not state adequate factual or legal grounds for relief.
Crim. P. 35(c)(3)(IV).
43