Carmichael v. People

Decision Date13 April 2009
Docket NumberNo. 07SC478.,07SC478.
Citation206 P.3d 800
PartiesRichard S. CARMICHAEL, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Douglas K. Wilson, Public Defender, Karen N. Taylor, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

In 2001, Richard Carmichael faced a number of criminal charges, including two charges of third degree sexual assault on a child stemming from two incidents involving two different children. Because of the seriousness of the charges against him, Carmichael faced a minimum sentence of twenty years of probation and, at maximum, two indeterminate life sentences if convicted at trial. The prosecuting attorney offered Carmichael a plea bargain, under which Carmichael would receive an indeterminate sentence of probation with a minimum of ten years. On advice of counsel, Carmichael rejected that plea bargain and proceeded to trial, where he was convicted and sentenced to twenty years of probation. Following his conviction, Carmichael filed a motion requesting a new trial, alleging ineffective assistance of counsel stemming from his attorney's failure to fully explain the relative benefits of the plea offer. The trial court denied this motion and Carmichael appealed. The court of appeals upheld the trial court's decision to deny the motion.

We granted certiorari and now reverse. We apply the ineffective assistance of counsel standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that standard we find that Carmichael's representation was constitutionally deficient and that inadequate representation caused him substantial prejudice, as supported by objective evidence. Because we are able to resolve this case on ineffective assistance of counsel grounds, we decline to address the remaining issues involved in this appeal.

II. Facts and Procedural History
A. R.R. Incident

On an unknown date in the spring or summer of 2000, R.R. and her friend A.B. spent the night at Sheree Carmichael's house, after a dance at the local recreation center. Sheree Carmichael is Michael Carmichael's daughter. A.B. testified the girls went to sleep in the Carmichael basement around 1:00 a.m., with A.B. and R.R. sleeping on separate couches and Sheree sleeping on the floor. A.B. testified that she fell asleep right away, but was awakened a few hours later by a light shining in her eyes. R.R. and Sheree continued sleeping. Pretending to be asleep, A.B. claimed she saw Carmichael shining a flashlight over the girls, and subsequently observed Carmichael approach R.R., lift her shirt, and touch her breast. R.R., who was thirteen at the time, did not wake up and does not have any recollection of this incident. At trial, A.B. stated that, after several minutes, she observed Carmichael stand up and turn off the flashlight. A.B. testified she heard a loud noise, but the other girls did not wake up. Carmichael then left the basement and returned upstairs.

The following day, the three girls spent the day together at the Carmichael house. A.B. told R.R. what she observed. The two also told Sheree about the incident, but the girls decided to keep it a secret.

Carmichael and his wife, Sheila Carmichael, testified that, on the night in question, they were asleep in their bedroom, when Sheila heard a loud noise and woke Carmichael to investigate. Carmichael checked the house with a flashlight, including the basement. While Carmichael was in the basement, Sheila stood at the top of the stairs. Sheila testified that she never lost sight of Carmichael as he looked into, but did not enter, the room where the girls were sleeping. In the morning, Sheila found a fallen window blind in the basement and assumed it was the cause of the noise.

Authorities did not learn about the R.R. incident until the mother of the other alleged victim, J.V.N., informed police during an investigation of the second, subsequent, incident. J.V.N.'s mother learned about the first event through the following chain of communication: A.B. told Sheree, Sheree told J.V.N., and J.V.N. told her mother.

B. J.V.N. Incident

Prior to this incident, J.V.N., and her family were very close to the Carmichaels. Carmichael and J.V.N.'s father are first cousins, and J.V.N. spent a great deal of time at the Carmichael family home.

On June 6, 2000, J.V.N., who was thirteen years old at the time, returned from a multiday camping trip with the Carmichael family. Rather than returning to her own home, J.V.N. decided to spend the night at the Carmichael home. J.V.N. testified that she was playing with Sheree and a few other friends in the Carmichael basement. Over the course of the evening, she accepted four or five shots of alcohol from Carmichael. Carmichael also offered shots to Sheree and his son, Chad. Offering small amounts of alcohol to the children was an accepted practice in both the V.N. and Carmichael families.

Later that evening, J.V.N. came back upstairs and lay down on the couch to go to sleep. Carmichael was lying on a loveseat nearby. J.V.N. stated that, as she pretended to be asleep, Carmichael moved over to the couch, touched her hand several times, lifted her shirt, and touched her stomach. When J.V.N. pretended to wake up, Carmichael moved back to the loveseat. Carmichael, in contrast, testified that he placed a blanket on J.V.N. and removed her shoes when she fell asleep.

Soon thereafter, J.V.N. returned to the basement, woke Sheree and told Sheree what happened. J.V.N.'s dad came to pick her up and J.V.N. reported the incident to police the next day. Carmichael maintained that he never touched J.V.N., other than possibly brushing her hand or stomach while placing a blanket over her.

C. Trial

In February 2001, police arrested Richard Carmichael and charged him with one count of sexual assault on a child by one in a position of trust involving R.R., one count of sexual assault on a child involving R.R., one count of contributing to the delinquency of a minor, one count of criminal attempt to commit sexual assault on a child by one in a position of trust involving J.V.N., and two counts of criminal attempt to commit sexual assault in the third degree, one each for the R.R. and J.V.N. incidents.

Faced with these serious charges, Carmichael retained the counsel of attorney Carl Fritz. Mr. Fritz met with his client to discuss the charged offenses. Mr. Fritz explained the elements of each charged offense, but did not inform Carmichael that he faced two indeterminate life sentences if convicted. Mr. Fritz informed Carmichael of the requirements of probation for a sexual offense.

On April 17, 2001, the date of a scheduled preliminary hearing, the Arapahoe County District Attorney's office informed Mr. Fritz that if Carmichael was willing to plead to one class four count of sexual assault on a child the prosecution would agree to dismiss the remaining charges and stipulate to a sentence of indeterminate probation, with a ten year minimum.

Mr. Fritz informed Carmichael of this proffered plea offer. Mr. Fritz stated in a subsequent affidavit that he failed to inform Carmichael that rejection of the plea bargain and conviction at trial of the charged offenses could expose Carmichael to the possibility of two mandatory consecutive indeterminate life sentences, with no guarantee of parole. Mr. Fritz did not tell Carmichael that the minimum length of probationary supervision he would receive if convicted at trial would be twenty years, twice the minimum he would be facing if he accepted the plea offer. Mr. Fritz also stated that he did not give Carmichael any advice regarding the favorability of the plea bargain but did incorrectly state that, if convicted at trial, Carmichael would end up with the same probationary sentence offered in the plea bargain. Carmichael rejected the plea offer later that day. Mr. Fritz was unaware Carmichael faced the possibility of indeterminate life sentences until he learned this information while awaiting the jury verdict.

In October of 2001, Carmichael went to trial. The jury acquitted him of attempting to inappropriately touch J.V.N. but convicted him of the charges relating to R.R. Carmichael was sentenced to twenty years of probation.

Carmichael, upon learning of Mr. Fritz's deficient advice, filed a motion for a new trial due to ineffective assistance of counsel. Carmichael testified that if he had known the penalties he actually faced by going to trial, he would have pleaded guilty to a class four felony of sexual assault against a child with a stipulated minimum ten years of probation. The trial court concluded Mr. Fritz's representation during the plea-bargaining process was deficient, but determined that deficiency did not materially prejudice Carmichael.

D. Appeal

Carmichael filed a timely notice of appeal and requested a designation of the trial court record in May of 2002. This record was to be completed by the following June. The assigned court reporter, Valerie Barnes, was unable to meet her deadlines for transcribing the record. Other reporters hired to complete the record were unable to do so because Ms. Barnes' notes were unreadable and incomplete.

In August of 2003, still lacking a complete trial court record, Carmichael filed a motion to vacate his conviction for violation of his due process right to a timely appeal. This motion was remanded to the trial court, along with several other cases with records dependent on Ms. Barnes' notes. Counsel for Carmichael and a number of other affected defendants issued subpoenas to involved court reporters, seeking their testimony as to the quality of Ms....

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