v. Chalchi-Sevilla , 2019 COA 75 ( 2019 )

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
May 16, 2019
2019COA75
No. 17CA0628, People v. Chalchi-Sevilla — Criminal Procedure
— Postconviction Remedies; Constitutional Law — Sixth
Amendment — Right to Counsel; Attorneys and Clients —
Ineffective Assistance of Counsel
In this case, a division of the court of appeals reverses the trial
court’s summary denial of a pro se postconviction petition because
the defendant alleged sufficient facts that, if true, may warrant
relief. For the first time, the division concludes that the proper
remedy is to remand with instructions to restore the postconviction
petition to the point at which the error occurred; pursuant to Crim.
P. 35(c)(3)(V), the postconviction court is instructed to refer the
entire petition to counsel, and counsel is permitted to supplement
the claims if deemed appropriate by counsel.
COLORADO COURT OF APPEALS 2019COA75
Court of Appeals No. 17CA0628
El Paso County District Court No. 10CR1604
Honorable Robin L. Chittum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricardo Chalchi-Sevilla,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Taubman and Berger, JJ., concur
Announced May 16, 2019
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Ricardo Chalchi-Sevilla, Pro Se
¶1 Defendant, Ricardo Chalchi-Sevilla, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion without appointing
postconviction counsel or holding an evidentiary hearing. We
reverse and remand for further proceedings.
I. Background
¶2 Chalchi-Sevilla shot and killed a store owner during an
attempted robbery. At trial, the jury found him guilty of, among
other charges, first degree felony murder and attempted aggravated
robbery. The trial court sentenced him to life in the custody of the
Department of Corrections (DOC) without the possibility of parole.
¶3 On direct appeal, a division of this court affirmed the
judgment of conviction. See People v. Chalchi-Sevilla, (Colo. App.
No. 12CA0202, Feb. 19, 2015) (not published pursuant to C.A.R.
35(f)).
¶4 Chalchi-Sevilla later filed the pro se Crim. P. 35(c) motion at
issue, raising two claims of ineffective assistance of his trial
counsel. His first claim related to his counsel’s advice regarding
whether he should accept a plea offer from the prosecution. His
second claim related to his counsel’s advice regarding whether he
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should testify at trial. He requested that postconviction counsel be
appointed to represent him.
¶5 The postconviction court issued a written order denying the
Crim. P. 35(c) motion without appointing counsel or holding an
evidentiary hearing.
II. Applicable Law and Standard of Review
¶6 A defendant’s Sixth Amendment right to effective assistance of
counsel extends to the plea bargaining process. Lafler v. Cooper,
566 U.S. 156, 162 (2012). To prevail on an ineffective assistance
claim, the defendant must show that counsel’s performance was
constitutionally deficient, and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). To show prejudice under Strickland where the
ineffective assistance results in rejection of a plea offer and the
defendant is convicted in the ensuing trial,
a defendant must show that but for the
ineffective advice of counsel, there is a
reasonable probability that the plea offer
would have been presented to the court (i.e.,
that the defendant would have accepted the
plea and the prosecution would not have
withdrawn it in light of intervening
circumstances), that the court would have
accepted its terms, and that the conviction or
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sentence, or both, under the offer’s terms
would have been less severe than under the
judgment and sentence that in fact were
imposed.
Lafler, 566 U.S. at 164.
¶7 A court may deny a defendant’s Crim. P. 35(c) motion without
an evidentiary hearing “only where the motion, files, and record in
the case clearly establish that the allegations presented in the
defendant’s motion are without merit and do not warrant
postconviction relief.” Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003). But where the defendant alleges sufficient facts that, if true,
may warrant relief, the court must conduct an evidentiary hearing.
People v. Simpson, 69 P.3d 79, 81 (Colo. 2003).
¶8 We review a summary denial of a Crim. P. 35(c) motion de
novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010).
III. Advice Regarding Plea Offer
¶9 Chalchi-Sevilla’s first postconviction claim related to his
counsel’s advice whether to accept a plea offer from the prosecution
that included a stipulated DOC sentence of sixty years. According
to Chalchi-Sevilla, his counsel advised him to reject the plea offer
because a sixty-year sentence was “equivalent to a life sentence,
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and if the worst that could happen to [him by going to trial] is a life
sentence, then why plead guilty to a life sentence.”
¶ 10 Chalchi-Sevilla asserted that this advice was incorrect, or at
least misleading, because counsel did not advise him regarding
parole eligibility. Specifically, he alleged that his counsel failed to
inform him that he would become eligible for parole after having
served fifty percent of his sentence. He emphasized that he and his
counsel had been actively pursuing a plea deal, and he alleged that
he would have accepted the sixty-year offer if he had known about
parole eligibility.
¶ 11 The postconviction court concluded that Chalchi-Sevilla did
not show deficient performance. The court explained that trial
counsel’s statement that a sixty-year sentence is equivalent to a life
sentence “can be interpreted as true.” The court pointed out that,
since Chalchi-Sevilla was twenty-six years old at the time of trial, he
would be between fifty-six and seventy-one years old “at least” when
he became eligible for parole. Therefore, the postconviction court
concluded, “Counsel’s advice was not deficient. It was true.”
¶ 12 The postconviction court pointed out that Chalchi-Sevilla’s
belief that he would have been eligible for parole after serving fifty
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percent of his sentence was incorrect, because his plea would likely
have involved a crime of violence, which receives different parole
treatment than nonviolent crimes. Thus, counsel’s failure to advise
Chalchi-Sevilla that he might be eligible for parole after serving fifty
percent of his sentence was not deficient because such advice
would not have been accurate.
¶ 13 As an initial matter, we note that the postconviction court’s
observations regarding the nature of the plea offer are not
supported by the record. The record contains no description of the
plea offer other than the stipulated sentence length. The
postconviction court merely speculated as to the charges to which
Chalchi-Sevilla would have been permitted to plead guilty,
assuming that he would have been pleading guilty to second degree
murder and other crimes of violence. The postconviction court then
analyzed the potential parole impact of that presumed plea,
concluding that Chalchi-Sevilla would not be eligible for parole until
he had served at least seventy-five percent of this sentence.
Because this would mean Chalchi-Sevilla would not be eligible for
parole until he was over seventy years old, the postconviction court
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concluded that Chalchi-Sevilla could not show his attorney’s advice
was deficient.
¶ 14 We disagree for three reasons.
¶ 15 First, the postconviction court can only rely on the record to
determine whether the record refutes Chalchi-Sevilla’s allegations.
Its educated guesses about the nature of the purported plea offer
cannot defeat Chalchi-Sevilla’s right to a hearing.
¶ 16 Second, even if the postconviction court’s belief as to the
nature of the plea was correct, its analysis failed to account for
Chalchi-Sevilla’s eligibility for earned time credit. See § 17-22.5-
403(2.5), C.R.S. 2018. Pursuant to section 17-22.5-405, C.R.S.
2018, Chalchi-Sevilla would be eligible to earn a deduction from his
sentence of up to ten days per month. If he earned all the credit
available to him, he could reach parole eligibility as much as fifteen
years earlier than calculated by the postconviction court.
¶ 17 Third, and most importantly, it appears the postconviction
court misapprehended the nature of Chalchi-Sevilla’s claim.
Chalchi-Sevilla asserted in his petition for postconviction relief that
he “was unable to properly evaluate the attractiveness of [the plea]
offer because his attorney told him that the plea offer was
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essentially identical to the punishment Chalchi-Sevilla faced if
convicted at trial.” The gravamen of his claim appears to be that a
sentence — even a lengthy one — with the possibility of parole is
fundamentally different than a sentence with no possibility of
parole.
¶ 18 We recognize that, twenty-seven years ago, a division of this
court wrote that “[e]ligibility for parole is a collateral consequence of
[a] defendant’s plea, and there is no requirement in our rules or the
federal rules which require[s] that [a] defendant be advised on this
subject.” People v. Moore, 844 P.2d 1261, 1262 (Colo. App. 1992).
Notably, though, an evidentiary hearing was held in Moore, and the
postconviction court in that case heard evidence regarding the
actual practice of defense attorneys and the parole board
concerning the relevant parole issue addressed in Moore, which was
a different parole issue than the one at issue in this case.
¶ 19 Further, the division in Moore cited an out-of-state case for
that proposition, despite the fact that our own supreme court in
People v. Pozo had already held just five years earlier that a criminal
defense attorney may be required to advise a defendant about
potential collateral consequences of a conviction, such as
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immigration consequences. See 746 P.2d 523, 525-30 (Colo. 1987).
In determining whether defense counsel had such a duty in a
particular case, “the trial court must judge the reasonableness of
the attorney’s conduct on the basis of all of the factual
circumstances of the particular case, viewed in light of the
prevailing standards of minimally acceptable professional conduct
as of the time of the challenged conduct.” Id. at 527 (citing
Strickland, 466 U.S. at 690).
¶ 20 We do not know the factual circumstances of trial counsel’s
discussion(s) with Chalchi-Sevilla about the prosecution’s plea offer.
We also do not know what the prevailing standard of practice was
among the criminal defense bar at that time in terms of advising
criminal defendants about the availability of parole or the timing of
a defendant’s parole eligibility. An evidentiary hearing is required to
develop the record on both subjects to resolve these issues. 1 Thus,
1 It is important to note what we do not decide here. We are not
announcing a rule that defense counsel must provide a detailed and
accurate prediction of when a defendant will be eligible for parole.
Nor are we establishing the minimum parameters for what parole-
related advice must be provided. Rather, we simply conclude that
Chalchi-Sevilla is entitled to an evidentiary hearing at which he will
have the opportunity to establish what the “prevailing standards of
minimally acceptable professional conduct” were at the time of his
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the postconviction court erred when it declined to appoint counsel
and conduct an evidentiary hearing.
IV. Remand for Further Proceedings Under Crim. P. 35(c)(3)(V)
¶ 21 Having concluded the postconviction court erred, we must
determine the remedy. In doing so, we consider at what point in
the Rule 35 process the error occurred. In his postconviction
petition, Chalchi-Sevilla requested counsel be appointed. On
appeal, he requests this court to remand the matter for
appointment of counsel and for a hearing.
¶ 22 Had the postconviction court correctly determined that
Chalchi-Sevilla’s petition presented sufficient facts to warrant a
hearing on at least one issue, the court would have referred the
matter to counsel, who would have been given time to review the
matter and, if necessary, supplement the petition with any
additional claims the attorney felt had arguable merit. Crim. P.
35(c)(3)(V).
¶ 23 We clarify two key points here. First, we note that,
historically, where divisions of this court have found error in a
decision to reject the plea offer. People v. Pozo, 746 P.2d 523, 527
(Colo. 1987).
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postconviction court’s denial of a motion under Crim. P. 35(c)(3)(IV),
those opinions have simply required an evidentiary hearing on
remand. Such remand language neither explicitly instructed the
postconviction court to put the train back on the tracks at the point
it derailed, nor explicitly prohibited it. As a consequence, our
instructions may not have been sufficiently clear.
¶ 24 We conclude that in cases where a postconviction court
erroneously denies a Rule 35(c) motion without a hearing under
Crim. P. 35(c)(3)(IV), the appropriate procedure is to fulfill what
Crim. P. 35(c)(3)(V) requires by remanding with directions to
appoint postconviction counsel (if the defendant requested
appointment of counsel in the petition), allow counsel time to
investigate and supplement the petition with additional claims if
need be, and then hold the evidentiary hearing on any potentially
meritorious claims.
¶ 25 Second, based on our construction and understanding of
Crim. P. 35(c)(3)(IV) and (V), if a defendant’s pro se Crim. P. 35(c)
motion presents at least one potentially meritorious claim, the
postconviction court shall provide “a complete copy” of the motion
to appointed counsel. Crim. P. 35(c)(3)(V). After receiving any
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supplemental claims, the postconviction court may order a
response by the prosecution and reply by the defendant.
¶ 26 So here, we need not address the merits of the postconviction
court’s denial of Chalchi-Sevilla’s second claim regarding his trial
counsel’s advice on whether he should testify at trial. Because
Chalchi-Sevilla’s first claim had potential merit, the postconviction
court should have proceeded to Crim. P. 35(c)(3)(V) by referring the
complete pro se motion to counsel and allowing counsel to
supplement any potentially meritorious claims. On remand,
postconviction counsel can determine whether to continue to
pursue Chalchi-Sevilla’s claim pertaining to trial counsel’s advice
regarding testifying at trial. And, if postconviction counsel pursues
this claim, the postconviction court may still resolve the issue
without a hearing if, based on the pleadings before the court at that
time, it concludes that the claim lacks sufficient factual or legal
grounds for relief. See Crim. P. 35(c)(3)(V).
V. Conclusion
¶ 27 The order denying Chalchi-Sevilla’s Crim. P. 35(c) motion
without an evidentiary hearing is reversed. The case is remanded
for the postconviction court to conduct further proceedings under
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Crim. P. 35(c)(3)(V), including appointing postconviction counsel for
Chalchi-Sevilla, allowing postconviction counsel to supplement
Chalchi-Sevilla’s pro se Crim. P. 35(c) motion, and conducting an
evidentiary hearing on Chalchi-Sevilla’s claim that his trial counsel
was ineffective during plea discussions by failing to advise him
regarding parole eligibility, as well as resolving any other claims
(including, if pursued by counsel, Chalchi-Sevilla’s second pro se
claim) pursuant to Crim. P. 35(c)(3)(V).
JUDGE TAUBMAN and JUDGE BERGER concur.
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