People v. Russell

• Decision Date: 15 February 2001
• Docket Number: No. 99CA2015.,99CA2015.
• Citation: 36 P.3d 92
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donnie E. RUSSELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

36 P.3d 92

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donnie E. RUSSELL, Defendant-Appellant.

No. 99CA2015.

Colorado Court of Appeals, Div. II.

February 15, 2001.

Rehearing Denied April 12, 2001.

Certiorari Denied November 27, 2001.¹

Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Donnie E. Russell, Pro Se.

Opinion by Judge CASEBOLT.

Defendant, Donnie E. Russell, appeals the order denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

In 1990, defendant was convicted of attempted first degree murder, first degree sexual assault, second degree kidnapping, aggravated robbery, second degree burglary, first degree arson, and commission of a crime of violence. Upon appeal, a division of this court affirmed the judgment of conviction. People v. Russell, (Colo.App. No. 90CA1206, May 28, 1992) (not selected for official publication) (Russell I). The supreme court denied certiorari on December 14, 1992.

Defendant subsequently filed a Crim. P. 35(c) motion for postconviction relief asserting ineffectiveness of his trial counsel, which the trial court denied. A division of this court affirmed that determination on appeal. People v. Russell, (Colo.App. No. 97CA0329, February 19, 1998) (not selected for official publication) (Russell II).

In May 1999, defendant filed the Crim P. 35(c) motion at issue here, essentially arguing that he had been denied effective assistance of postconviction counsel. The trial court summarily denied the motion as successive, and this appeal followed.

Defendant contends the court erred in denying his motion without a hearing, without appointing counsel, and without making findings of fact and conclusions of law. We find no reversible error.

When the motion, the files, and the record clearly establish that the defendant is not entitled to relief, a court may deny a Crim. P. 35(c) motion without a hearing. See People v. Hartkemeyer, 843 P.2d 92 (Colo. App.1992)

. In such circumstances, the court may also decline to exercise its discretionary authority to appoint counsel. See Duran v. Price, 868 P.2d 375 (Colo.1994). If a court properly denies a motion, its failure to make findings of fact and conclusions of law is harmless. People v. Hartkemeyer, supra.

I.

Defendant asserts that the court erred in summarily denying his motion as successive. Because defendant raised ineffectiveness of his postconviction counsel in his second motion, we agree that his motion was not successive. See People v. Wiedemer, 852 P.2d 424 (Colo.1993)

; People v. Hickey, 914 P.2d 377 (Colo.App.1995). However, as discussed below, we nevertheless conclude that defendant is not entitled to relief.

We note initially that the supreme court has not recognized a right to counsel in postconviction proceedings, but has held that a district court has the authority to appoint counsel therefor. See People v. Breaman, 939 P.2d 1348 (Colo.1997)

. Ineffective assistance claims arising out of such circumstances are analyzed under the test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See People v. Hickey, supra.

Accordingly, when, as here, a defendant claims to have received ineffective assistance of counsel, a court must determine whether counsel's conduct so undermined the proper functioning of the adversarial process that the proceeding cannot be relied upon as having produced a just result. Strickland v. Washington, supra.

To prevail on such a claim, the defendant must establish that: (1) counsel's performance fell below the level of reasonably competent assistance; and (2) the deficient performance prejudiced the defense, resulting in a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. People, 871 P.2d 769 (Colo.1994).

Because a presumption of validity attaches to a judgment of conviction, the burden is on the defendant in a Crim. P. 35(c) proceeding to prove both elements of an ineffective assistance of counsel claim by a preponderance of the evidence. Davis v. People, supra.

A.

Defendant first asserts that postconviction counsel was ineffective because she failed to raise the insufficiency of the information and the trial court's lack of jurisdiction over him. Specifically, defendant asserts that the information charging him with attempted first degree murder is substantively defective because it omitted an essential culpability element and failed to advise him adequately of the type of attempted first degree murder of which he was accused. We reject this contention.

Although objections to the form of an information are waived if not raised prior to trial, People v. Hunter, 666 P.2d 570 (Colo. 1983), a substantive defect may be raised at any time in the proceedings because it is jurisdictional in nature. Crim. P. 12(b)(2); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967), overruled on other grounds by People v. Williams, 984 P.2d 56 (Colo.1999)

.

As pertinent here, an information must provide the defendant with notice of the charges sufficient to permit the preparation of an adequate defense, and it must protect him or her from further prosecution for the same offense. If an information fulfills these purposes, it invokes the jurisdiction of the court. People v. Williams, supra.

If, however, the information fails to satisfy these requirements, it is substantively defective, and a conviction obtained pursuant to such an information is void. Cervantes v. People, 715 P.2d 783 (Colo.1986).

In determining the sufficiency of a particular charge in an information, a court restricts its examination to the four corners of that charge to ensure that the essential elements of a crime are directly alleged or incorporated by specific reference. People v. Williams, supra.

Here, the information charged defendant with "Criminal Attempt 1° Murder, C.R.S. 18-2-101 (Class 2 Felony)" asserting that defendant:

did unlawfully and feloniously attempt to commit the crime of 1° Murder (Class 1 Felony) against DALING COLLIER, and did engage in conduct constituting a substantial step toward the commission of said crime, as defined by 18-3-102, C.R.S., as amended; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.

1.

Defendant asserts that the information omitted the statutory language of § 18-2-101, C.R.S.2000, that the accused must commit the attempt "with the kind of culpability otherwise required for commission of an offense." He argues that, because this culpability element is essential to proving criminal attempt, its absence renders the information substantively defective. We disagree. In support of his contention, defendant directs us to cases holding that intent to commit the underlying offense is an essential element of criminal attempt that must be proved at trial. See People v. Juvenile Court, 813 P.2d 326 (Colo.1991)

(attempted first degree murder after deliberation); People v. Frysig, 628 P.2d 1004 (Colo.1981) (attempted first degree sexual assault), overruled in part by People v. Krovarz, 697 P.2d 378 (Colo.1985). However, defendant's reliance on these cases is misplaced.

It is not necessary that an information include every element of the offense that must be proved at trial. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973); People v. Moran, 983 P.2d 143 (Colo.App.1999). If it expresses the charge in language from which the nature of the charged offense can be readily understood, an information that does not conform to the exact wording of the statute is nevertheless substantively sufficient. Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972).

When, as here, the ulterior crime is stated, and statutory references for criminal attempt and the ulterior crime are provided, the omission of the attempt culpability is merely an error in form, not of substance. See People v. Valdez, 946 P.2d 491, 497 (Colo. App.1997)

(information charging "criminal attempt to commit theft from an at-risk adult" and referencing criminal attempt and general theft statutes sufficient), rev'd on other grounds, 966 P.2d 587 (Colo.1998); People v. Jiron, 44 Colo.App. 246, 247, 616 P.2d 166, 167 (1980) (information charging "attempt to commit the crime of second degree burglary" and referencing statute defining ulterior crime sufficient). Cf. People v. Williams, supra (omission of ulterior crime from information charging first degree criminal trespass was only a defect in form).

Here, as in Valdez and Jiron, the information charged defendant with committing criminal attempt, specified the ulterior crime, and cited to the criminal attempt and the first degree murder statutes. Given these statutory references, defendant could readily determine that he had to have committed the attempt with the degree of culpability required for first degree murder. Thus, while it would have been the better practice to include the culpability element directly in the charge, we conclude the information was substantively sufficient.

2.

The information also neglected to specify, either by name or by statutory subsection, the type of first degree murder that defendant was accused of attempting. Defendant asserts that this omission renders the information substantively defective. Again, we disagree.

In support of this contention, defendant relies upon People v. Tucker, 631 P.2d 162 (Colo.1981). There, the supreme court held that, because embezzlement could be committed in numerous ways, an indictment that failed to specify how any of twelve alleged embezzlement counts had been committed was substantively defective. However, Tucker is distinguishable from the present case.

Here, the factual allegations in the information make it clear that defendant was accused of attempting to commit either murder after deliberation or felony murder....