Hodges v. People

• Decision Date: 21 May 2007
• Docket Number: No. 05SC682.,05SC682.
• Citation: 158 P.3d 922
• Parties: Terrence T. HODGES, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

158 P.3d 922

Terrence T. HODGES, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 05SC682.

Supreme Court of Colorado, En Banc.

May 21, 2007.

Jonathan D. Reppucci, LLC, Jonathan D. Reppucci, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Samler and Whitson, P.C., Hollis A. Whitson, Eric A. Samler, Denver, Colorado, Attorneys for Amicus Curiae Office of Alternate Defense Counsel.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, we review and affirm the judgment of People v. Hodges, 134 P.3d 419 (Colo.App.2005), in which the court of appeals affirmed the convictions of Terrence T. Hodges.¹ While we agree that Hodges's convictions should not be disturbed, we disagree with the court of appeals' conclusion that the trial court did not err by appointing alternate defense counsel who was not on the Office of Alternate Defense Counsel's list of approved attorneys. The trial court's appointment of alternate defense counsel not on this list was in direct contravention of the mandate of the OADC statute, sections 21-2-101 to -106, C.R.S. (2006). Although Hodges was represented by counsel who was improperly appointed by the trial court, the trial court's administrative error violated no cognizable right of Hodges's under the OADC statute. Hence, albeit on different grounds, we affirm the judgment of the court of appeals.

II. Facts and Proceedings Below

Terrence T. Hodges was arrested on August 30, 2001, after an undercover police detective purchased over a kilogram of methamphetamine from him. Hodges was charged with four felony counts, including possession and possession with intent to distribute a schedule II controlled substance, possession with intent to distribute 1,000 grams or more of a schedule II controlled substance, and importation of a schedule II controlled substance.

The trial court determined that Hodges was indigent and thus eligible for legal representation by the Office of the State Public Defender, but a conflict of interest prevented such representation because the Public Defender was already representing Hodges's co-defendant. Hence, the district court appointed an attorney to represent Hodges through the Office of Alternate Defense Counsel.

Several months later, Hodges moved for substitution of counsel because he was unsatisfied with his OADC attorney. Hodges stated that he disagreed with the OADC attorney's belief that he had no defense. The district court denied Hodges's motion, finding the OADC attorney to be competent. The district court gave Hodges the option of proceeding pro se or with the OADC attorney. Hodges chose to proceed pro se.

On the morning his trial was to begin, Hodges privately retained attorney Kevin Pernell to represent him.² The district court granted Hodges a continuance so that Pernell could prepare for trial, requiring Hodges to contemporaneously agree to waive his speedy trial right.

On the next trial date, Hodges chose to fire Pernell and again appear pro se. Hodges told the district court that Pernell's failure to develop a meaningful defense constituted a conflict of interest because Hodges believed he had "winnable" issues. The court concluded that there was no conflict of interest but permitted Pernell to withdraw, finding that Hodges's decision to proceed pro se was knowing, voluntary, and intelligent. The district court ordered Hodges to appear the next morning for trial.

Hodges appeared for trial the next day as ordered. For reasons not apparent in the record, the district court conducted an in camera discussion with Hodges and the People concerning Pernell and then also spoke with Pernell off the record. The court then appointed Pernell as alternate defense counsel, even though Pernell was not on the OADC's list of approved attorneys with OADC contracts, with the consent of both Hodges and Pernell:

THE COURT: We had some discussions previously in chambers concerning Mr. Pernell, and he did come by, and I informed him of what had transpired in chambers, and I know we had reset this until ten o'clock to allow Mr. Hodges to speak with Mr. Pernell, and the District Attorney as well, so, Mr. Pernell, what is the status at this time?

MR. PERNELL: In talking with Mr. Hodges, and the District Attorney, or District Attorneys, excuse me, on the premise that Mr. Hodges is indigent, I'm confident he will make that, because he doesn't have a job, and isn't from here, and counting on me being able to be appointed under the ADC program, and he will be able to get an investigator, so I am willing to enter the case, prepare this case for trial, and consult with the District Attorney's Office to clear dates that I think will work for everyone, contingent on the Court's calendar.

THE COURT: Mr. Hodges, you evidently wanted to fire or discharge or sever your relationship with Mr. Pernell yesterday. Have you and he talked, and do you feel comfortable at this point? The Court is prepared to appoint him as alternative defense counsel, therefore he will be paid through the Court, since he has already invested time and effort in this case.

If you do qualify as indigent it makes sense to appoint another ADC and start from the beginning again. Is that what you want to do at this point?

MR. HODGES: Yes.

The trial court then set a third trial date several months out so that Pernell would have time to hire an investigator.

Three weeks prior to the new trial date, Pernell moved to withdraw because of a conflict of interest with Hodges, citing "irreconcilable differences." Pernell told the court that he did not think he could effectively represent Hodges, stating, "We're at a point of true animosity or, at least, I am, and it's just not going to work out to be effective." The district court denied Pernell's motion to withdraw because it found that he "alleged nothing that is not a matter of commonplace, if not routine," regarding the attorney-client relationship between the Public Defender or OADC and defendants, and that Hodges was simply "very determined never to go to trial." The district court advised Pernell that he could file a written motion to withdraw if he could allege something that placed him in an "ethical dilemma." Pernell did not file a formal motion to withdraw but instead proceeded to represent Hodges at his trial and sentencing.

At the conclusion of a three-day jury trial, the jury found Hodges guilty on all counts. The district court conducted a bench trial on the habitual criminal charges and sentenced Hodges as a habitual criminal to forty-eight years in prison for possession with intent to distribute, twenty years for possession with intent to distribute 1,000 grams or more, thirty-five years for importation, and eighteen years for possession, all to run concurrently.

Hodges appealed his conviction to the court of appeals, arguing that he was entitled to a reversal of his convictions and a new trial because the district court violated Colorado law when it erroneously appointed Pernell as alternate defense counsel and then refused to allow Pernell to withdraw when a conflict of interest allegedly arose. Hodges, 134 P.3d at 422. Hodges argued that the district court violated his rights under the OADC statute and his constitutional right to counsel. Id. at 423-26. The court of appeals affirmed Hodges's convictions, reasoning that the plain error standard applies to any error in appointing Pernell because Hodges did not object to his appointment at trial. Id. at 424. The court of appeals also reasoned that Hodges had not shown that he suffered any prejudice by virtue of Pernell's representation. Id. at 426.

Hodges and the OADC both filed petitions for rehearing. The court of appeals denied these petitions, but added a sentence to its opinion regarding payment of Pernell: "We express no opinion as to OADC's obligation to pay appointed counsel who are not on its approved list." Id. at 424.

Hodges petitioned this Court for certiorari review, arguing that the court of appeals erred by: (1) interpreting the OADC statute to allow a district court to appoint an attorney to represent an indigent client who has not been approved by the OADC; (2) failing to grant a new trial to Hodges; (3) affirming the district court's denial of Pernell's motion to withdraw; and (4) concluding that the fact that methamphetamine is a schedule II controlled substance is a matter of law that need not be proved beyond a reasonable doubt under the Sixth Amendment. The OADC also petitioned this Court for certiorari review, arguing that the court of appeals erred by: (1) holding that a trial court has inherent authority to appoint counsel to indigent defendants outside of the purview of the OADC statute; (2) holding that the district court need not work within the OADC process for contracting with and hiring attorneys; and (3) not requiring the judicial department to pay for an indigent defendant's representation where the OADC neither approved the appointment nor contracted with the appointed attorney. We granted certiorari only on Hodges's first issue — whether the court of appeals erred in interpreting the OADC statute to allow a district court to appoint alternate defense counsel who is not under contract with or approved by the OADC³ — and thus focus our analysis there.

III. Analysis

The General Assembly has established by statute two state agencies to provide legal representation to indigent criminal defendants: the Public Defender and the OADC. The Public Defender statute requires the Public Defender to represent indigent persons accused of crime. § 21-1-101(1), C.R.S. (2006). The OADC statute steps in to provide counsel to indigent criminal defendants where the Public Defender has a conflict of interest in providing legal representation. § 21-2-101(1); §...