Ardolino v. People, No. 01SC739.

• Decision Date: 12 May 2003
• Docket Number: No. 01SC739.
• Citation: 69 P.3d 73
• Parties: John ARDOLINO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

69 P.3d 73

John ARDOLINO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 01SC739.

Supreme Court of Colorado, En Banc.

May 12, 2003.

Patrick J. Mulligan, Denver, Colorado, Attorney for Petitioner.

Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

John Ardolino petitioned for review of the unpublished court of appeals' decision upholding the denial of his motion for postconviction relief. The district court determined, without a hearing, that Ardolino's counsel had not been ineffective both because his representation did not fall outside the wide range of professionally competent assistance and because any errors made by his counsel did not result in prejudice to his case. Because we find that the motion, files, and record in the case were insufficient to establish either that the acts and omissions of counsel identified by the defendant were reasonable strategic choices or that they, in any event, did not prejudice his case, we remand for an evidentiary hearing on the allegations of the defendant's motion.

I.

The defendant, John Ardolino, was convicted of sexual assault on a child and contributing to the delinquency of a minor, for which he was sentenced to concurrent eleven-year terms in the custody of the department of corrections. The charges arose from an incident in July 1997, in which Ardolino was accused of providing alcohol to a ten-year-old girl and digitally penetrating her vagina. In the absence of physical evidence or other first-hand witnesses, the prosecution presented its case through the testimony of the child-victim; relatives, neighbors, and police officers to whom she or the defendant made statements; and the medical expert who examined her. The defense rested on a general denial, without presenting a case.

Prosecution witnesses testified to the effect that the defendant hired the victim to help with his landscaping business, as he had done with other children in the neighborhood. On the evening in question, after receiving permission to spend the night with the defendant's daughter, the victim drank beer offered to her by the defendant and became dizzy. When she responded in the negative to his question whether she had ever had cooking oil rubbed on her, the defendant retrieved a bottle of cooking oil from the kitchen and rubbed it on her stomach and then in her vagina. The victim told no one until a month or two later, when she was being told by an older friend about foreplay and exclaimed, "That's what John did to me!" When the victim resisted her friend's urging to tell her mother, the friend eventually told her own mother, who told the victim's mother, who in turn notified the police.

Although defense counsel did not present any witnesses on the defendant's behalf, he did cross-examine the prosecution witnesses and make argument. In particular, however, while questioning the medical expert who had examined the victim, defense counsel asked her about the veracity of child sexual assault victims and elicited from her an opinion that less than one percent of such allegations were false. Counsel repeated and emphasized this opinion both at the time and again in closing argument to the jury.

Following the jury verdicts, the defendant appealed his convictions to the court of appeals. During the pendency of his appeal, he was granted a limited remand to challenge, by motion for postconviction relief, the effectiveness of his counsel's assistance. His motion alleged that defense counsel was ineffective in his investigation of the alleged crime, voir dire of the jury, cross-examination of the victim and the prosecution's expert witness, and in failing to object during closing argument. The motion included the affidavit of an attorney, offered as a defense expert, asserting that trial counsel's representation had been ineffective in these areas.

The district court denied the motion without hearing evidence to support the defendant's allegations, finding that they involved no disputed questions of fact but only issues of law. It further found the record sufficient to establish that defense counsel's alleged acts and omissions were reasonable strategic choices and that they did not prejudice the defendant, in part because the victim appeared highly believable.

The case was recertified to the court of appeals, which affirmed both the defendant's convictions and the district court's denial of his motion for postconviction relief. One member of the panel would have remanded for an evidentiary hearing on the allegations of the defendant's postconviction motion. We granted the defendant's petition for a writ of certiorari to review the denial of his claim of ineffective assistance of counsel.

II.

A criminal defendant is constitutionally entitled to effective assistance from his counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Davis v. People, 871 P.2d 769 (Colo. 1994). Because the purpose of the requirement of effective assistance is to ensure a fair trial, however, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S at 687, 104 S.Ct. 2052. To be entitled to reversal of a conviction as the result of defective assistance, a defendant must therefore show not only that his counsel's performance was deficient but also that the deficient performance prejudiced the defense. Id.; People v. Cole, 775 P.2d 551, 554 (Colo.1989).

The proper standard for attorney performance is that of reasonably effective assistance, and therefore the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Prevailing norms of practice can serve as guides to determine reasonableness, but no more than guides, because of the variety of circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688-89, 104 S.Ct. 2052. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Id. at 690-91, 104 S.Ct. 2052; People v. Rodriguez, 914 P.2d 230, 298 (Colo.1996). Because a challenged action might be considered sound trial strategy under the circumstances of a particular case, judicial scrutiny of counsel's performance must be highly deferential, evaluate particular acts and omissions from counsel's perspective at the time, and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 698, 104 S.Ct. 2052.

Conflicts of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. at 693, 104 S.Ct. 2052; Rodriguez, 914 P.2d at 294. Unlike the high standard for a new trial based on newly discovered evidence, a defendant, however, need not show that counsel's deficient conduct more likely than not altered the outcome in the case. Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. Rather, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, see, e.g., Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999),

and the materiality of testimony made unavailable by government deportation of a witness. Strickland, 466 U.S. at 694,

104 S.Ct. 2052. This test requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. In this context, a reasonable probability means a probability sufficient to undermine confidence in the outcome. Id.

In light of the considerations potentially involved in determining ineffective assistance, defendants have regularly been discouraged from attempting to litigate their counsels' effectiveness on direct appeal. People v. Thomas, 867 P.2d 880, 886 (Colo. 1994); Cummings v. People, 785 P.2d 920, 927-28 (Colo.1990) (Vollack, J., concurring in part and dissenting in part); cf. Massaro v. United States, ___ U.S. ___, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)

(rejecting any requirement to show cause and prejudice for raising ineffective-assistance claims in the first instance by postconviction motion, on grounds that district court is forum best suited to develop facts necessary to determine adequacy of representation during an entire trial). Even if the trial record reflects a seemingly unusual or misguided action by counsel, it may not reflect whether counsel had a sound strategic motive or took the action because his alternatives were even worse. See Massaro, ___ U.S. ___, 123 S.Ct. 1690,

155 L.Ed.2d 714. Counsel's reasons for omissions are even less likely to be reflected in the trial record. Id. Furthermore, without additional factual development, an appellate court may not be able to ascertain whether particular alleged errors were prejudicial. Id.

The statutes and rules of this jurisdiction provide a criminal defendant with an adequate opportunity to develop the required record to establish ineffective assistance. See § 18-1-410, 6 C.R.S. (2002); Crim. P. 35(c). A motion for postconviction relief pursuant to Crim. P. 35(c) may be denied without an evidentiary hearing only where the motion, files, and record in the case clearly establish that the allegations presented in the...