Murphy v. People

• Decision Date: 15 November 1993
• Docket Number: No. 92SC426,92SC426
• Parties: Patrick S. MURPHY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 301

863 P.2d 301

Patrick S. MURPHY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 92SC426.

Supreme Court of Colorado,

En Banc.

Nov. 15, 1993.

Rehearing Denied Dec. 6, 1993.

David F. Vela, State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

In Murphy v. People, No. 91CA0616 (Colo.App. April 30, 1992) (not selected for official publication), a divided panel of the court of appeals affirmed the order of the trial court denying defendant Patrick S. Murphy's motion for postconviction relief. We granted Murphy's petition for certiorari in order to decide whether a defendant is entitled to conflict-free counsel when a trial court orders the appointment of counsel to assist the defendant. We hold that a defendant is. We reverse and return this case to the court of appeals for remand to the trial court for further proceedings.

I

In November of 1989, petitioner Patrick S. Murphy was charged in El Paso County District Court with three counts of second-degree burglary, ¹ two counts of theft of a thing valued between $300 and $10,000, ² one count of theft of a thing valued over $10,000, ³ and two counts of theft by receiving a thing valued at between $300 and $10,000. ⁴ One month later, the district attorney initiated a second criminal proceeding against Murphy in which he was charged with one count of second-degree burglary and one count of theft of an object valued between $50 and $300.

In January of 1990, the district attorney filed an amended information in each of the two pending criminal matters to include three habitual criminal counts ⁵ indicating that Murphy had previously been convicted of three additional felonies.

In March of 1990, Murphy agreed to plead guilty to one count of second-degree burglary in each of the two pending cases and to receive concurrent aggravated sentences of sixteen to twenty years on each count. In exchange for Murphy's plea, the prosecution agreed to dismiss all remaining counts in both cases, including all habitual criminal charges. On May 21, 1990, the district court sentenced Murphy to serve two concurrent sixteen-year terms. Throughout the proceedings, Murphy was represented by a staff attorney from the El Paso County Office of the Public Defender.

On February 5, 1991, Murphy filed a pro se Crim.P. 35(c) motion and memorandum of points and authorities requesting that the trial court vacate his conviction in both cases. ⁶ In his motion, Murphy asserted that he had been denied effective assistance of counsel throughout the proceedings. In substance, Murphy claimed that his attorney failed to provide him with sufficient information during the providency hearing of either the elements of burglary or of his rights under Crim.P. 11, failed to investigate the facts of the case, failed to prepare for trial, failed to challenge the excessive sentencing, and failed to file for postconviction relief. Murphy further alleged that he was "pressed" by his attorney to enter a plea of guilt, when in fact he wanted to proceed to trial. Also within his 35(c) motion to vacate, Murphy requested that the district court appoint counsel from outside of the Colorado Public Defender's Office to assist him in his action. ⁷

On February 21, 1991, the district court issued an order appointing the public defender "to assist the Defendant," and purportedly denying Murphy's motion for reconsideration pursuant to the wrong subsection of the rule, Crim.P. 35(b). ⁸ The full text of the court's order reads as follows:

This matter comes forward upon motion of the defendant for appointment of counsel to review and assist in preparation of a motion for relief from sentence. The Court has denied a motion for reconsideration pursuant to C.R.C.P. 35(b) and that motion is not open for consideration.

The Public Defender is appointed to assist the Defendant.

Noting the court's error, Murphy wrote a personal letter to the court explaining that his motion was one for postconviction relief under Crim.P. 35(c) and asking that the court reconsider his motion under the appropriate provision of the rule.

On March 14, 1991, the district court issued a written order denying Murphy's Crim.P. 35(c) motion. The three-paragraph order states in relevant part as follows:

While the Defendant list[s] numerous case citations[,] his motion fails to allege any factual allegations in support of his motion. For instance, he was thoroughly advised by both reading of the information and a less formal explanation of the nature and elements of the crime to which a plea of guilty was entered. The defendant not only acknowledged his understanding, but affirmatively stated he had no questions.

On appeal, Murphy argued, as he does now, that the district court erred when, on February 21, 1991, it appointed the same attorney that was the principal subject of Murphy's Crim.P. 35(c) ineffective assistance of counsel motion to assist him "in preparation of a motion for relief from sentence." In effect, Murphy explained, the district court's appointment required that the Public Defender litigate the claim against himself, causing an incurable conflict of interest. Additionally, Murphy argued that his motion put forth sufficient factual allegations such that the district court erred in not granting his request for an evidentiary hearing.

A divided panel of the court of appeals affirmed the order of the district court, holding that the district court's ruling on the merits of Murphy's motion rendered the question of defendant's right to conflict-free representation moot. People v. Murphy, No. 91CA0616 (Colo.App. April 30, 1992) (not selected for official publication). In reaching this conclusion the court cited Kostal v. People, 167 Colo. 317, 447 P.2d 536 (1968), for the proposition that where a motion contains insufficient factual allegations, there is no requirement that an attorney be appointed to represent the defendant. Thus, because Murphy had no right to the appointment of counsel, the court concluded that the issue of whether his appointed attorney was conflict-free was irrelevant to resolution of the Crim.P. 35(c) motion. Similarly, with regard to Murphy's contention that he was entitled to an evidentiary hearing to present his motion, the court of appeals held that Murphy's motion failed to provide sufficient supporting averments to avoid summary denial. Specifically, the court found that Murphy "did not indicate what material facts would have been discovered by [additional] investigation or trial preparation or how [Murphy] had been prejudiced by the alleged failure." Finally, based on Murphy's failure to provide the court of appeals with a transcript of the providency hearing, the court refused to overturn the district court's finding that Murphy was thoroughly advised of the nature and elements of the crime to which Murphy pleaded guilty. In dissent, Judge Tursi argued that the appearance of a conflict of interest here, especially when compounded by the failure of the public defender to present an adequate record for appellate review, required that the case be remanded for the appointment of conflict-free counsel to assist Murphy in the refiling and presentation of his motion.

We granted certiorari to review the following issue:

Whether the court of appeals erred in affirming the trial court's appointment of the trial attorney to assist petitioner in the Crim.P. 35(c) proceeding, who was the subject of petitioner's ineffective assistance of counsel claim, and of subsequently denying petitioner a hearing on the Crim.P. 35(c) motion.

We now reverse and remand to the court of appeals with directions that it remand the matter to the district court for the purpose of appointing conflict-free counsel.

II

In determining that the question of conflict-free counsel was moot, the court of appeals reasoned that Murphy was not entitled to the assistance of appointed counsel since the trial court correctly determined that Murphy's claims were not supported by sufficient factual allegations to trigger the statutory right to such assistance, i.e., since Murphy had no right to counsel in the first place, it was immaterial that the counsel who was appointed may have had an incurable conflict of interest. Additionally, the court of appeals held that the trial court was correct in determining that Murphy's motion was factually insufficient to require an evidentiary hearing.

We find it unnecessary to address the adequacy of Murphy's motion. Whether or not Murphy's 35(c) motion was sufficiently specific to trigger the right to counsel, it cannot be disputed that the district court, by its own action, ordered the appointment of the same attorney that had represented Murphy in the proceedings below. ⁹ By making such an appointment, the district court created a situation where appointed counsel was forced to litigate against himself, clearly causing an impermissible conflict of interest. ¹⁰ See McCall v. District Court, 783 P.2d 1223, 1227 (Colo.1989) ("A local public defender faced with the prospect of arguing his or her own incompetence to protect a client's interests on appeal clearly has a conflict of interest requiring disqualification." ¹¹ ); accord Riley v. District Court, 181 Colo. 90, 507 P.2d 464 (1973) (ruling that where a defendant alleged his guilty plea was caused by his attorneys' ineffective assistance, those same attorneys could not represent the defendant in the Crim.P. 35(b) proceeding alleging ineffective assistance). Not only does such a conflict harm the interests of the client, who is entitled to the assistance of a zealous advocate, ¹² see Cruz v. People, 157 Colo. 479, 405 P.2d 213, 215 (1965) (describing the duties required of appointed co...