Downey v. People, 99SC664.

• Decision Date: 25 June 2001
• Docket Number: No. 99SC664.,99SC664.
• Parties: Gregory DOWNEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

25 P.3d 1200

Gregory DOWNEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 99SC664.

Supreme Court of Colorado, En Banc.

June 25, 2001.

Jane Hazen, Denver, CO, Attorney for Petitioner.

Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, CO, Attorney for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

In this opinion, we consider the defendant's claim of ineffective assistance of his prior appellate attorney, who was appointed by the trial court as advisory counsel. Generally, a defendant assisted by advisory counsel has elected to represent himself and has waived the right to be represented by an attorney. Because a defendant who has waived the right to counsel has no constitutional right to advisory counsel, he may not ordinarily maintain a claim of ineffective assistance of advisory counsel. However, such a defendant may have a claim for ineffective assistance of advisory counsel if such counsel assumes a broader role, and exercises a degree of control appropriate for legal representation with respect to all or some part of the proceedings.

Here, the record supports the trial court's finding that advisory appellate counsel did not assume a broader role and exercise a degree of control appropriate for legal representation.¹ Thus, we agree with both the trial court and the court of appeals that Downey may not maintain a claim for ineffective assistance of advisory appellate counsel. Accordingly, we affirm the judgment of the court of appeals.

I.

The defendant, Gregory Downey (Downey), was convicted of possession of contraband, attempted escape, conspiracy to commit escape, and five counts of habitual criminal. After Downey filed a notice of appeal raising the issue of ineffectiveness of trial counsel, his trial counsel filed a motion to withdraw. The trial court appointed counsel to represent Downey in his appeal.

Despite the trial court's appointment of counsel, Downey retained a private attorney to aid him with his appeal but asked the court to allow him to proceed without counsel. The trial court agreed to allow Downey to proceed pro se, but appointed the attorney Downey had privately retained to continue to act as advisory counsel.² After a partially successful appeal, Downey filed a Crim.P. 35(c) motion claiming ineffective assistance of his advisory appellate counsel. Specifically, Downey claimed that his advisory appellate counsel had provided ineffective assistance by raising the issue of ineffective assistance of trial counsel on direct appeal instead of in post-conviction proceedings.³ At a hearing on the Crim.P. 35(c) motion, Downey testified that his advisory appellate counsel agreed to write the briefs in his appeal, but that Downey agreed to sign the briefs as if he were proceeding pro se. In contrast, his advisory appellate counsel testified that Downey wished to represent himself and that counsel merely agreed to act as advisory counsel. The trial court accepted advisory appellate counsel's account of the situation and held that he had acted solely as advisory counsel. Accordingly, the trial court concluded that Downey could not maintain a claim for ineffective assistance of appellate counsel under the circumstances.

The court of appeals affirmed, holding that a defendant who relinquishes the right to representation by counsel also relinquishes the right to pursue any claim of ineffective assistance of counsel. People v. Downey, 994 P.2d 452, 454 (Colo.App.1999). We granted certiorari.⁴

II.

It is well established that a defendant who represents himself waives the right to counsel, and thus, he does not have a claim for ineffective assistance of counsel. See McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)

; Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256, 1265 (Colo.1985); People v. Lucero, 200 Colo. 335, 341, 615 P.2d 660, 663 (1980). Both the United States and Colorado Constitutions guarantee the right to effective assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Armstrong v. People, 701 P.2d 17, 19 (Colo.1985). As discussed in Faretta v. California, the express guarantee of the right to counsel implicitly embodies a correlative right to self-representation. 422 U.S. at 821,

95 S.Ct. 2525; Romero, 694 P.2d at 1263-64; Lucero, 200 Colo. at 340,

615 P.2d at 663. Furthermore, the Colorado Constitution expressly guarantees a criminal defendant "the right to appear and defend in person and by counsel." Romero, 694 P.2d at 1263 (quoting Colo. Const. art. II, § 16). However, an accused who elects to proceed pro se relinquishes many of the traditional benefits associated with the right to counsel, including the Sixth Amendment right to the effective representation of counsel. Faretta, 422 U.S. at 819,

95 S.Ct. 2525.

In Colorado, a defendant who elects to proceed pro se and waives the right to counsel does not have a constitutional right to advisory counsel. Romero, 694 P.2d at 1265. Although a pro se defendant has no constitutional right to advisory counsel, a trial court may, nonetheless, permit a defendant the assistance of some type of advisory counsel. McKaskle, 465 U.S. at 183, 104 S.Ct. 944; Romero, 694 P.2d at 1265; Reliford v. People, 195 Colo. 549, 554, 579 P.2d 1145, 1148 (1978). When this occurs, advisory counsel serves as a resource available to assist the defendant with legal and procedural matters and to call the trial court's attention to matters favorable to the defendant. Romero, 694 P.2d at 1265; Reliford, 195 Colo. at 554, 579 P.2d at 1148; People v. Doane, 200 Cal.App.3d 852, 246 Cal.Rptr. 366, 372 (1988). Advisory counsel may assist a pro se defendant only if and when the defendant requests such assistance. Lucero, 200 Colo. at 341, 615 P.2d at 664.

In general, a defendant who knowingly and voluntarily waives his right to counsel and chooses to proceed pro se cannot later claim ineffective assistance of counsel. Romero, 694 P.2d at 1265; Lucero, 200 Colo. at 341, 615 P.2d at 663. See People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 717 (1989)

; Doane, 246 Cal.Rptr. at 369; Rodriguez v. State, 763 S.W.2d 893, 896 (Tex. Ct.App.1988). Thus, in People v. Lucero, this court denied a defendant's claim for ineffectiveness of advisory counsel where the defendant failed to request the aid of advisory counsel. 200 Colo. at 341,

615 P.2d at 663-64.

However, other jurisdictions have permitted a criminal defendant to bring an ineffective assistance of counsel claim against advisory counsel under circumstances in which advisory counsel somehow assumed a broader role and exercised a degree of control appropriate for legal representation.⁵ This situation may arise in a number of different contexts. For example, a defendant may initially be represented by counsel but then become dissatisfied with counsel's representation, and subsequently request to proceed pro se. See McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.1985)

; Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184, 185-86 (1988); Rodriguez, 763 S.W.2d at 896. The trial court may then grant a defendant's request to represent himself. See Hance, 373 S.E.2d at 185-86 (hearing on motion for ineffective assistance of counsel claim warranted where ineffectiveness claim related to counsel's performance before defendant sought to act as co-counsel); Rodriguez, 763 S.W.2d at 896 (court to consider record up to the point where defendant's self-representation began). Under these circumstances, a defendant may maintain a claim for ineffective assistance of counsel for any acts or omissions that might have occurred before the defendant elected to proceed pro se. Rodriguez, 763 S.W.2d at 896.

Alternatively, a trial court might grant a defendant's motion to proceed pro se, but nevertheless appoint advisory counsel to assist the defendant. See United States v. Causey, 835 F.2d 1289, 1293 (9th Cir.1987)

; State v. Bettney, 529 A.2d 1356, 1356 (Me. 1987); Estelle v. State, 558 So.2d 843, 846 (Miss.1990). If a defendant elects not to make use of the assistance of appointed advisory counsel, or if advisory counsel merely advises a defendant, no claim for ineffective assistance arises. Lucero, 200 Colo. at 341,

615 P.2d at 663; see also Causey, 835 F.2d at 1293; Estelle, 558 So.2d at 847.

However, under some circumstances advisory counsel may assume a broader role in a defendant's representation, either in response to a pro se defendant's request for help, or through a defendant's acquiescence in certain types of participation by counsel. See Bettney, 529 A.2d at 1356-57

. Once advisory counsel exceeds his role as advisory counsel and exercises a degree of control appropriate for legal representation, a defendant may assert an ineffective assistance of counsel claim "within the limited scope of the duties assigned to or assumed by counsel." Bloom, 259 Cal.Rptr. 669,

774 P.2d at 718; Doane, 246 Cal.Rptr. at 373; M.S. Ali v. United States, 581 A.2d 368, 380 (D.C.1990); Hance, 373 S.E.2d at 185-86; Bettney, 529 A.2d at 1357; Rodriguez, 763 S.W.2d at 896. The ineffectiveness of counsel analysis must focus on the role of advisory counsel, not the defendant's own representation or trial strategies within his control. Doane, 246 Cal.Rptr. at 373.

The objectives underlying a defendant's right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by advisory counsel. McKaskle, 465 U.S. at 178,104 S.Ct. 944. Therefore, some limits are imposed upon advisory counsel's unsolicited participation in a defendant's case. First, a pro se defendant must be allowed to control the organization and content of his own defense. Id. at 174, 104 S.Ct. 944. Thus, advisory counsel's participation over defendant's objection cannot allow counsel to substantially interfere with any...