06 & 2014CA2511. The People of the State of Colorado v. Ari Misha Liggett

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
July 12, 2018
2018COA94
Nos. 2014CA2506 and 2014CA2511 — Criminal Law —
Competency to Proceed; Courts and Court Procedure — Court
of Appeals — Jurisdiction
In this direct appeal of a criminal conviction and a revocation
of probation, in which the defendant was found legally incompetent
after the notice of appeal was filed, a division of the court of appeals
considers (1) defendant’s request for an indefinite stay of the direct
appeal due to incompetence; (2) defendant’s request for a limited
remand to restore competence; and (3) counsel’s request to stay a
ruling on the defendant’s motions to terminate counsel’s
representation and to dismiss the appeal. As a matter of first
impression, the division denies the defendant’s request for an
indefinite stay and holds that the direct appeal may proceed as long
as the defendant is permitted to raise any issues not raised by
appellate counsel, due to the defendant’s incompetence, in a
postconviction proceeding. Under well-settled Colorado and federal
law, the division grants the requests to stay a ruling on the motions
to terminate counsel and to dismiss the appeal because an
incompetent defendant can do neither. Finally, the division holds,
as a matter of first impression, that it may order restoration to
competence on limited remand under section 13-4-102(3), C.R.S.
2017, because restoration to competence is necessary for the
division to resolve the motions to dismiss counsel and to dismiss
the appeal. Accordingly, the motion is granted in part and denied
in part.
COLORADO COURT OF APPEALS 2018COA94
Court of Appeals No. 14CA2506
Arapahoe County District Court No. 12CR2253
Honorable Michelle A. Amico, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ari Misha Liggett,
Defendant-Appellant.
-----------------------AND------------------------
Court of Appeals No. 14CA2511
Arapahoe County District Court No. 10CR576
Honorable Michelle A. Amico, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ari Misha Liggett,
Defendant-Appellant.
ORDER GRANTING MOTION IN PART AND DENYING IN PART,
AND REMANDING CASE WITH DIRECTIONS
Division A
Order by JUDGE FREYRE
Taubman and Ashby, JJ., concur
Announced July 12, 2018
Cynthia H. Coffman, Attorney General, Matthew S. Holman, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 In this direct appeal of two cases — first degree murder after
deliberation and revocation of probation (based on the murder
conviction) — counsel for the defendant, Ari Misha Liggett, request
an indefinite stay of the appellate proceedings due to Liggett’s
incompetence. For the same reason, counsel ask us to stay ruling
on Liggett’s request to terminate counsel’s representation and to
dismiss the appeal. Finally, counsel ask us to remand the cases to
the district court for competency restoration proceedings.
¶2 Liggett’s counsel and the People agree, as do we, that an
incompetent defendant cannot waive the right to counsel or a direct
appeal. Therefore, we cannot rule on these requests until Liggett is
restored to competence during the period in which we have
jurisdiction over the appeal, as discussed in Part IV.
¶3 The remaining two requests present issues no Colorado
appellate court has considered. First, should a defendant’s direct
criminal appeal be stayed indefinitely when such person is found
legally incompetent after the notice of appeal is filed? For the
reasons explained below, we answer that question “no.” We hold
that a defendant’s direct criminal appeal should proceed, despite a
1
finding of incompetence. Therefore, we deny Liggett’s counsel’s
request to indefinitely stay the appellate proceedings.
¶4 Second, does this court have the authority to bifurcate the
direct appeal and to grant a limited remand for competence
restoration proceedings while the appeal proceeds? We answer that
question “yes.” We hold that section 13-4-102(3), C.R.S. 2017,
authorizes this court to “issue any writs, directives, orders, and
mandates necessary to the determination of cases within [our]
jurisdiction.” Because, due to Liggett’s incompetence, we are
unable to rule on the pending requests to dismiss counsel and to
dismiss the appeal, we conclude that a limited remand for
restoration proceedings under section 16-8.5-111(2), C.R.S. 2017,
is necessary for our future determination of these motions and the
dispositions of the direct appeals. Therefore, we grant in part
Liggett’s counsel’s request for a remand to restore Liggett to legal
competence.
I. Background
¶5 A jury convicted Liggett of first degree murder after
deliberation on November 10, 2014. The court sentenced him to life
in prison without the possibility of parole on November 14, 2014.
2
At the same time, the court found that Liggett’s murder conviction
constituted a violation of his probation and sentenced him to a
three-year concurrent prison sentence for the violation. It awarded
him 1095 days of presentence confinement credit on the three-year
sentence.1
¶6 Following the imposition of sentence, trial counsel asked the
court to appoint the public defender’s office for the purpose of
appealing both cases. Liggett did not object. Thus, when Liggett
was competent, the public defender filed a timely notice of appeal
on December 29, 2014. Both cases were eventually assigned to
current counsel acting as alternate defense counsel.
¶7 On September 19, 2016, appellate counsel filed a motion to
dismiss the appeal in the murder case. By an order, this court
denied that motion with leave to renew it upon receiving an affidavit
from Liggett averring that he had been advised of his rights
concerning the appeals and that he wished to dismiss them.
¶8 On October 24, 2016, appellate counsel filed a motion to stay
the proceedings in both cases and requested a limited remand to
1Although that sentence has been fully served, the probation
appeal is not moot because a reversal of the murder conviction
would require reversal of the probation revocation finding.
3
determine whether Liggett was competent to proceed and competent
to knowingly, voluntarily, and intelligently waive his rights to appeal
and to counsel. Counsel represented that Liggett wished to
terminate counsel’s representation, and to dismiss the appeals.
Counsel asserted a good faith belief that Liggett (1) lacked the
capacity to make an informed choice; (2) lacked an understanding
of his choices; (3) lacked an understanding of counsel’s role in the
appellate proceedings; and (4) was overcome by a serious thought
disorder. Because of these issues, counsel maintained they could
not ethically procure an affidavit from Liggett waiving his rights to
appeal and to counsel, absent a competency determination.
¶9 By a one-judge order, this court granted the motion for limited
remand on December 13, 2016. After receiving two evaluations
declaring Liggett incompetent to proceed, the district court entered
an order on September 26, 2017, finding Liggett incompetent to
proceed and incompetent to make a knowing, voluntary, and
intelligent wavier of his rights to counsel and to appeal. Based on
the language of the remand order, the district court ruled that it did
not have jurisdiction to initiate restoration proceedings.
4
¶ 10 After the recertification of both cases on appeal, counsel filed a
motion to stay the appellate proceedings indefinitely and for a
limited remand to restore Liggett to competence. The People
objected, arguing, based on out-of-state jurisprudence and on
William H. Erickson et al., Mental Health Standards 7-5.4 (Am. Bar
Ass’n 1984), that the appeal could proceed. Thereafter, we
requested supplemental briefing on the novel issues described
above.
II. Waiver of Counsel and Appeal
¶ 11 It is well settled that the right to counsel is a constitutional
right and that a defendant may waive that right only if (1) the
defendant is competent to waive the right, and (2) the defendant
makes the waiver knowingly, voluntarily, and intelligently. U.S.
Const. amends. VI, XIV; Colo. Const. art. II, § 16; Godinez v. Moran,
509 U.S. 389, 400-01 (1993); People v. Davis, 2015 CO 36M, ¶ 15.
A defendant is competent to waive this right when he has “sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding[] and . . . has a rational as well as factual
understanding of the proceedings against him.” Davis, ¶ 16
(quoting Dusky v. United States, 362 U.S. 402 (1960)). Moreover, a
5
defendant must be competent to abandon his appeals. Rees v.
Payton, 384 U.S. 312 (1966); see People v. Bergerud, 223 P.3d 686,
693-94 (Colo. 2010) (noting that decision whether to take an appeal
is so fundamental to a defense that it cannot be made by defense
counsel, but rather must be made by the defendant himself).
¶ 12 Because Liggett’s counsel and the People agree that Liggett is
incompetent, and because they agree that an incompetent
defendant cannot waive the right to counsel or to a direct appeal,
we conclude, consistent with the district court’s finding, that Liggett
is currently incompetent to waive counsel and to dismiss the
appeal. Therefore, we cannot rule on the requests to dismiss
counsel and to dismiss the appeal unless and until Liggett is
restored to competence during the appellate process.
III. The Direct Appeal May Proceed Despite the Incompetence
Finding
¶ 13 Liggett’s counsel contend that the direct appeal should be
stayed indefinitely because proceeding while Liggett is incompetent
will violate his Sixth Amendment right to counsel and his Fifth and
Fourteenth Amendment rights to due process of law. Counsel rely
on well-established federal jurisprudence holding that an
6
incompetent defendant may not be prosecuted unless he possesses
both a sufficient present ability to consult with counsel and a
rational and factual understanding of the nature of the proceedings.
See Dusky, 362 U.S. at 402; see also Drope v. Missouri, 420 U.S.
162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966).
Appellate defense counsel further contend that a meaningful
attorney-client relationship cannot exist if a defendant is
incompetent, so counsel is unable to fulfill the ethical obligations of
representation. Finally, counsel contend that proceeding with the
appeal to completion will trigger state and federal periods for filing
postconviction motions, and, thus, Liggett’s incompetence may
work a forfeiture of important postconviction rights.
¶ 14 Relying on numerous out-of-state cases that have addressed
this issue, the People argue that the direct appeal should proceed
because appellate proceedings do not require a defendant’s
participation in the same way that trial proceedings do. They
further argue that any failure of appellate counsel to raise
meritorious issues due to incompetence can be remedied through
postconviction relief. We find the People’s argument persuasive and
7
therefore deny Liggett’s motion to indefinitely stay the direct
appeals.
A. Standard of Review and Relevant Law
¶ 15 It is well settled that the conviction of a person who is
mentally incompetent violates the basic concepts of due process
under the Fourteenth Amendment to the United States Constitution
and article II, section 16 of the Colorado Constitution. Moreover,
federal and state due process guarantees mandate fair procedures
on appeals as of right, including the appointment of counsel for
indigent defendants and the effective assistance of counsel. See
Evitts v. Lucey, 469 U.S. 387, 396 (1985); Douglas v. California, 372
U.S. 353, 357-58 (1963); Adargo v. People, 159 Colo. 321, 324, 411
P.2d 245, 247 (1966); Petition of Griffin, 152 Colo. 347, 349-50, 382
P.2d 202, 204 (1963). Colorado provides a statutory direct appeal
as of right to all persons convicted of a felony. § 16-12-101, C.R.S.
2017; see C.A.R. 4(b)(1), (c); People v. Wiedemer, 852 P.2d 424, 438
(Colo. 1993). This right includes the right to counsel and the right
to the effective assistance of appellate counsel. See People v.
Arguello, 772 P.2d 87, 92 (Colo. 1989).
8
¶ 16 The General Assembly has prescribed the procedures for
district courts to follow when a defendant’s competence is raised
during the trial proceedings. See §§ 16-8.5-102 to -116, C.R.S.
2017. However, no such procedures exist for defendants who
become incompetent after a notice of appeal is filed. Thus, we
examine how other courts faced with this issue have resolved this
procedural conundrum, together with Colorado’s competency
statutes, to the extent they are applicable.
¶ 17 Whether an incompetent defendant’s appeal should be stayed
or should proceed is a question of law that we review de novo. See
In re J.C.T., 176 P.3d 726, 729 (Colo. 2007). Moreover, we interpret
statutes de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.
2007). In construing statutes, we look first to their plain language
and give words their common and ordinary meanings. Id. at 690.
We presume the General Assembly understands the legal import of
the words it uses and intends that each word be given meaning.
Dep’t of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004).
B. Analysis
¶ 18 A majority of courts faced with deciding whether an
incompetent defendant’s appeal should be stayed or should proceed
9
have adopted the procedure set forth in the Mental Health
Standards prepared by the American Bar Association (ABA). These
courts have held that an incompetent defendant’s direct appeal
should not be stayed, despite incompetence, as long as the
defendant is provided a postconviction remedy to raise issues not
raised on appeal due to the defendant’s incompetence. See Buxton
v. State, 352 P.3d 436, 438 (Alaska Ct. App. 2015) (holding that an
incompetent defendant’s appeal may proceed provided that
postconviction relief is later available, at which time he can show
that he was prejudiced by the appeal proceeding); People v. Kelly,
822 P.2d 385 (Cal. Ct. App. 1992) (same); Dugar v. Whitley, 615 So.
2d 1334, 1335 (La. 1993) (same); Fisher v. State, 845 P.2d 1272,
1276-77 (Okla. Crim. App. 1992) (holding that an incompetent
defendant’s appeal may proceed if he is later provided a
postconviction remedy for raising issues due to incompetence); Reid
v. State, 197 S.W.3d 694, 705-06 (Tenn. 2006) (holding that in
postconviction proceedings, which include direct appeal, legal
claims and factual claims not requiring a defendant’s input should
not be stayed based on incompetence); State v. Debra A.E., 523
N.W.2d 727, 735-36 (Wis. 1994) (applying procedure from ABA
10
standards to postconviction and direct appeal proceedings). But see
Commonwealth v. Silo, 364 A.2d 893, 895 (Pa. 1976) (holding that it
would be improper to permit an incompetent defendant’s appeal to
proceed if the defendant was unable to assist counsel in its
preparation).
¶ 19 These courts reason that a stay would be harmful by causing
a defendant to suffer from delayed reversals of meritorious claims,
and further, that proceeding with the appellate process advances
the state’s interest in the expeditious administration of the criminal
justice system. See Buxton, 352 P.3d at 438; Reid, 197 S.W.3d at
705-06. They further reason that the same considerations that
prohibit an incompetent person from being tried do not apply once
judgment has been entered. For instance, issues on appeal are
limited to the appellate record, and attorneys do not need to rely on
a defendant’s recollection of the trial proceedings to decide which
issues are worthy of pursuit. See Kelly, 822 P.2d at 407-08. In
permitting an appeal to proceed, however, these courts agree that
due process requires that a defendant be able to raise issues not
raised on appeal due to the defendant’s incompetence in a later
postconviction setting when and if the defendant has been restored
11
to competence. See Debra A.E., 523 N.W.2d at 735 (“Assessing
competency during [appellate] proceedings creates a record of a
defendant’s mental capacity, thus eliminating the difficulty of
attempting to measure that capacity months or years after the
period in question.”).
¶ 20 ABA mental health standard 7-5.4, titled “[m]ental
incompetence at time of noncapital appeal,” provides as follows:
(a) A defendant is incompetent at the time of
appeal in a noncapital case if the defendant
does not have sufficient present ability to
consult with [the] defendant’s lawyer with a
reasonable degree of rational understanding,
or if the defendant does not have a rational as
well as factual understanding appropriate to
the nature of the proceedings.
(b) Mental incompetence of the defendant at
the time of appeal from conviction in a
criminal case should not prohibit the
continuation of such appeal as to matters
deemed by counsel or by the court to be
appropriate.
(i) If, following the conviction of the defendant
in a criminal case, there should arise a good
faith doubt about the mental competence of
the defendant during the time of appeal,
counsel for the state or the defendant should
make such doubt known to the court and
include it in the record.
12
(ii) Counsel for the defendant should proceed
to prosecute the appeal on behalf of the
defendant despite the defendant’s
incompetence and should raise on such appeal
all issues deemed by counsel to be
appropriate.
(c) Mental incompetence of the defendant
during the time of appeal shall be considered
adequate cause, upon a showing of prejudice,
to permit the defendant to raise, in a later
appeal or action for postconviction relief, any
matter not raised on the initial appeal because
of the defendant’s incompetence.
¶ 21 Comments to the standard explain that it is based on three
assumptions. First, criminal defendants’ interests are best served
by proceeding with the appeal because a timely resolution of the
appeal might overturn their convictions or modify their sentences.
Mental Health Standards 7-5.4 cmt. Second, although criminal
defendants must decide whether to appeal a conviction, they
otherwise rely on appellate counsel’s strategic and tactical decisions
about which claims to raise and how those claims should be
argued. Id. Finally, a defendant’s incompetence “rarely affects the
fairness or accuracy of appellate decisions” because defendants
generally do not actively participate in the appellate proceedings.
Id. at cmt. intro.
13
¶ 22 On August 8, 2016, the ABA replaced these standards with
new ones. See Criminal Justice Standards on Mental Health (Am.
Bar Ass’n 2016), https://perma.cc/82UC-QZXH. The new standard
applicable here is Standard 7-8.8, titled “[c]ompetence to proceed:
appealing from conviction in a noncapital case.” It provides as
follows:
(a) Consistent with Standard 7-5.2, the test for
determining whether the defendant is
competent to make a decision regarding
whether to appeal [a] conviction in a
noncapital case should be whether the
defendant has sufficient present ability to
consult with counsel with a reasonable
degree of rational understanding and
whether the defendant has a rational as well
as factual understanding of the nature and
consequences of the decision.
(i) If the defense attorney believes the
defendant is competent under this
Standard, then the defense attorney
should abide by the defendant’s decision
about whether to appeal.
(ii) If the defense attorney believes the
defendant is incompetent under this
Standard then the attorney may petition
the court to permit a next friend acting
on the defendant’s behalf to initiate or
pursue the appeal.
(b) The decision about which issues to raise on
appeal is the defense attorney’s. However,
14
incompetence of the defendant during the
time of appeal should be considered
adequate cause, upon a showing of
prejudice, to permit the defendant to raise,
in a later appeal or action for postconviction
relief, any matter not raised on the initial
appeal because of the defendant’s
incompetence.
¶ 23 Further, Standard 7-5.2, titled “[c]ompetence to proceed with
specific decisions: control and direction of case,” identifies matters
solely under the defendant’s sphere of control. These matters
include the decisions to plead guilty; to assert a defense of non-
responsibility; and to waive the rights to a jury trial, to testify, and
to appeal. Standard 7-5.2(a).
¶ 24 While Standard 7-8.8 omits specific language directing
appellate counsel to prosecute the appeal despite the defendant’s
incompetence, we construe that standard as assuming the ongoing
prosecution of the appeal by (1) specifically identifying matters
within a defendant’s sphere of control in Standard 7-5.2, which
notably excludes appellate issues; (2) specifying that defense
counsel decides which issues to raise on appeal; and (3) providing
an incompetent defendant with a remedy for challenging issues not
15
raised due to incompetence in a later appeal or postconviction
proceeding.2
C. Application
¶ 25 We are persuaded by the reasoning of the ABA standards and
the cases applying them and conclude that they set forth a practical
procedure that both promotes the effective administration of the
judicial system and provides meaningful postconviction relief to
defendants when and if competence is restored.
¶ 26 First, there are significant differences between the trial and
appellate stages of a criminal proceeding. Criminal proceedings are
initiated by the state. The purpose of a trial, from the state’s
perspective, is to prove beyond a reasonable doubt that a
presumptively innocent person is guilty of a crime. Requiring
competence at this stage preserves the presumption of innocence by
ensuring that a criminal defendant can assist defense counsel in
defending the case. Competence also ensures that a defendant is
2The revised standards also provide a procedure for initiating the
appellate process where a defendant becomes incompetent in the
period between the imposition of sentence and the filing of the
notice of appeal, an issue not presented here. Criminal Justice
Standards on Mental Health 7-8.8 (Am. Bar Ass’n 2016),
https://perma.cc/82UC-QZXH.
16
able to make significant constitutional choices that require the
advice of counsel, like whether to plead guilty, to testify, or to
pursue self-representation. See McCoy v. Louisiana, 584 U.S. ___,
___, 138 S. Ct. 1500, 1508 (2018) (describing decisions reserved for
the defendant as including whether to plead guilty, waive the right
to a jury trial, testify in one’s own behalf, assert innocence at trial,
and forgo an appeal). Such assistance is crucial as the defendant
often possesses the only information that may cast doubt on the
state’s case. Further, a defendant’s ability to communicate with
and assist defense counsel preserves the defendant’s constitutional
rights to be present and to confront accusers.
¶ 27 In contrast, appellate proceedings are generally initiated by a
defendant who seeks to overturn a finding of guilt. A convicted
defendant no longer enjoys the presumption of innocence and the
attendant rights of confrontation and to be present at the
proceeding. Indeed, a convicted defendant’s choices are primarily
whether to pursue a direct appeal and whether to be represented by
counsel. Moreover, unlike the right to a jury trial, which is
guaranteed by the Federal and State Constitutions, there is no
corresponding constitutional right to an appeal. See Ross v. Moffitt,
17
417 U.S. 600, 610-11 (1974). And, because appellate counsel’s
ability to raise issues is limited to the appellate record,
communication with and input from a defendant are not necessary
for counsel to effectively brief issues on appeal. See Kelly, 822 P.2d
at 414 (‘“[C]onvicted defendants, like parties to appellate litigation
in general, do not participate in appeal proceedings.’” (quoting ABA
Criminal Justice Mental Health Standards 7-5.4(c) cmt. intro.
(1989))). Because of these significant differences between a
defendant’s involvement in the trial and appellate processes, we are
not convinced that the cases which preclude the prosecution of an
incompetent defendant, on which Liggett’s counsel rely, necessarily
preclude the direct appeal of a defendant’s conviction when
incompetence arises during the appellate process.
¶ 28 We find support in the existing competency statutes and in
particular, section 16-8.5-102(1), C.R.S. 2017, which governs the
procedures for raising pretrial incompetency. This provision
provides as follows:
While a defendant is incompetent to proceed,
the defendant shall not be tried or sentenced,
nor shall the court consider or decide pretrial
matters that are not susceptible of fair
determination without the personal
18
participation of the defendant. However, a
determination that a defendant is incompetent
to proceed shall not preclude the furtherance of
the proceedings by the court to consider and
decide matters, including a preliminary
hearing and motions, that are susceptible of
fair determination prior to trial and without the
personal participation of the defendant.
Id. (emphases added). Thus, the General Assembly has recognized
that even before a conviction is entered, incompetence implicates a
defendant’s decisions and choices, but does not require the
complete cessation of all proceedings. Indeed, those pretrial
proceedings in which the personal participation of the defendant is
not required and that are susceptible of fair determination without
the defendant’s participation may proceed.
¶ 29 Similarly, Colorado law holds that appellate counsel — not the
defendant — primarily decides, as a matter of strategy, which
issues should be raised on appeal. See Downey v. People, 25 P.3d
1200, 1206 (Colo. 2001); People v. Ray, 2015 COA 92, ¶ 13; People
v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007).
¶ 30 We acknowledge that a defendant’s incompetence might
prevent counsel from acquiring information or learning of concerns
important to the proper disposition of an appeal. Consequently, we
19
hold that Liggett must be permitted to raise in a postconviction
motion any matter not raised in the direct appeal due to his
incompetence. When and if he is restored to competence,3 the
postconviction limitations set forth in Crim. P. 35(c), including, but
not limited to, the time limits of subsection (3)(I), the claim limits of
subsection (3)(VI), the claim limits of subsection (3)(VII), and the
claim limits of subsection (3)(VIII), should not apply to him.4
¶ 31 Accordingly, we deny Liggett’s counsel’s request to indefinitely
stay the direct appeal in each case, and we direct the parties to
proceed with briefing in accordance with a separate briefing order
3 Because of this holding, we do not further address timing issues
related to state postconviction proceedings or offer any opinion on
whether a defendant must be competent to pursue postconviction
relief under Crim. P. 35(c). Additionally, we reject Liggett’s
counsel’s argument that proceeding with the appeal would
necessarily cause a forfeiture of Liggett’s federal habeas corpus
rights. See Holland v. Florida, 560 U.S. 631 (2010) (holding that the
one-year statute of limitations on petitions for federal habeas relief
by state prisoners is subject to equitable tolling); Ata v. Scott, 662
F.3d 736, 742 (6th Cir. 2011) (holding that a petitioner’s
incompetence can constitute an extraordinary circumstance that
tolls the limitations period if the petitioner established mental
incompetence and that such incompetence caused the failure to
comply with the statute of limitations).
4 A defendant claiming ineffective assistance of appellate counsel
during the period of incompetency retains the burden of proving
both deficient performance and prejudice in order to receive
postconviction relief. People v. Valdez, 789 P.2d 406, 409-10 (Colo.
1990).
20
issued today. The briefing schedule will be sent under a separate
order of this court.
IV. Bifurcated Proceedings
¶ 32 Having concluded that the direct appeal can proceed, we must
decide how to resolve the pending motions before us in light of
Liggett’s incompetence. The People contend that the direct appeal
divested the district court of jurisdiction and that the appeal and
restoration proceedings cannot occur simultaneously. They also
argue that the district court has no authority to order the
Department of Corrections (DOC), in whose custody Liggett resides,
to restore him to competency.
¶ 33 Liggett’s counsel do not separately address bifurcation, but
request a stay of all proceedings, which we have already rejected,
and a remand for restoration to competence.
¶ 34 This court’s subject matter jurisdiction is a question of law
that we review de novo. People v. Sandoval, 2016 COA 57, ¶ 14.
We agree with the People that, generally, the filing of a notice of
appeal divests the district court of jurisdiction to issue further
orders that relate to the order or judgment on appeal. People v.
Hampton, 696 P.2d 765, 771-72 (Colo. 1985); see also § 13-4-
21
102(1)(2); C.A.R. 1. We further agree that the existing competency
statutes, article 8.5 of title 16, govern a defendant’s competency to
participate in criminal proceedings in the district court before a
conviction enters and do not apply to direct appeals.
¶ 35 Nevertheless, section 13-4-102(3) provides that “[t]he court of
appeals shall have authority to issue any writs, directives, orders,
and mandates necessary to the determination of cases within its
jurisdiction.” (Emphasis added.) See also People v. Bergen, 883
P.2d 532, 542 (Colo. App. 1994) (recognizing that the court of
appeals does not possess general powers of supervision over lower
courts except as provided in section 13-5-102(3)). No one questions
our jurisdiction to consider Liggett’s appeals — the only question is
whether we possess the legal authority to order restoration while
the appeal is pending. The answer to that question depends on
whether restoration is necessary to the determination of Liggett’s
cases. Because his incompetence precludes us from ruling on his
pending requests to terminate counsel and to dismiss the appeal,
we conclude that a limited remand to restore Liggett’s competence
22
is necessary to our determination of these requests and, thus, to
these cases.5
¶ 36 We find support for our position in the numerous instances
recognized by statute, case law, and rule in which this court retains
concurrent jurisdiction with the district court during a direct
appeal. See, e.g., § 13-20-901(1), C.R.S. 2017 (district court
proceedings not stayed when the court of appeals exercises its
discretion to consider an interlocutory appeal of an order granting
or denying class certification); § 18-1.3-202, C.R.S. 2017 (district
court retains jurisdiction to modify terms of and revoke probation
during appeal); § 19-3-205, C.R.S. 2017 (district court retains
jurisdiction over any child adjudicated neglected or dependent until
the age of twenty-one including when adjudication order is on
appeal); Sanoff v. People, 187 P.3d 576 (Colo. 2008) (district court
retains jurisdiction to rule on restitution after notice of appeal is
filed); People in Interest of Dveirin, 755 P.2d 1207, 1209 (Colo. 1988)
(district court retains jurisdiction over all subsequent certification
5 We may rule on the pending requests if Liggett’s competence is
restored before we lose jurisdiction over the appeal. If Liggett
remains incompetent, restoration for those matters within the
appellate court’s jurisdiction will be rendered moot when the
mandate issues.
23
proceedings when the validity of short-term certification is pending
appeal); In re Parental Responsibilities Concerning W.C., 2018 COA
63 (district court retains jurisdiction to consider motions to modify
parenting time and decision-making while permanent orders are on
appeal); People in Interest of E.M., 2016 COA 38M (district court
retains jurisdiction to enter and modify treatment plans while
adjudicatory order is on appeal), aff’d sub nom. People in Interest of
L.M., 2018 CO 34; In re Estate of Scott, 119 P.3d 511 (Colo. App.
2004) (probate court retains jurisdiction to conduct administration
of the estate after its judgment regarding all pending claims and
parties is final), aff’d sub nom. Scott v. Scott, 136 P.3d 892 (Colo.
2006); People v. Stewart, 26 P.3d 17 (Colo. App. 2000) (district court
retains jurisdiction to rule on motions for stay and for appeal bonds
during appeal), aff’d in part and rev’d in part, 55 P.3d 107 (Colo.
2002); Koontz v. Rosener, 787 P.2d 192, 198 (Colo. App. 1989)
(district court retains jurisdiction to consider attorney fees as costs
after notice of appeal is filed); see also C.R.C.P. 54(b) (district court
retains jurisdiction over remaining claims while certified claims are
appealed); C.R.C.P. 59 (district court retains jurisdiction to rule on
a pending Rule 59 motion after notice of appeal is filed).
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¶ 37 Moreover, we are not persuaded that Liggett’s confinement in
the custody of the DOC necessarily precludes restoration
proceedings from occurring. The plain language of section 16-8.5-
111(2)(b) provides that the district court may commit a defendant to
the Department of Human Services for restoration and gives the
executive director of the Department authority over the restoration
proceedings. Nothing in the statutory language requires a
defendant to reside in a particular location for restoration to occur.
And we note that Liggett was confined in the custody of the DOC
when the district court ordered the Department to perform the
competency examinations pursuant to our limited remand. We
have no reason to expect that such cooperation between the
Department and the DOC will not or cannot occur with respect to
restoration proceedings.
¶ 38 Nevertheless, we leave to the district court’s discretion the
resolution of any issues that may arise between the Department
and the DOC. Accordingly, we remand the case to the district court
for the limited purpose of ordering proceedings to restore Liggett to
competence. This order will remain in effect until Liggett is restored
to competence or until the mandate issues, whichever occurs first.
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V. Conclusion
¶ 39 We grant a stay of the ruling on Liggett’s requests to terminate
counsel and to dismiss the appeal. We deny the request to
indefinitely stay the appellate proceedings and order the direct
appeal to proceed in accordance with the scheduling order. We
grant the request for a limited remand to seek to restore Liggett to
competence and remand the case to the district court for that
limited purpose. If competence is restored before the mandate
issues, then Liggett shall immediately forward a copy of the district
court’s order to this court. Entry of the order on the matter shall be
construed as recertification of the appeal by the district court. The
order entered shall be made a part of the record on appeal.
¶ 40 If Liggett wishes to amend the notice of appeal with any issue
arising on remand, a motion to amend shall be filed within fourteen
days of notice of recertification of the appeal by this division and
shall be accompanied by a motion to supplement the record, if
necessary.
¶ 41 We further order Liggett’s counsel to notify this division in
writing of the status of the district court proceedings in the event
that this matter is not concluded within sixty-three days from the
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date of this order. Liggett’s counsel shall file status reports every
sixty-three days until recertification or until further order of this
division.
JUDGE TAUBMAN and JUDGE ASHBY concur.
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