People v. Boehmer, 86CA0323

• Decision Date: 25 November 1988
• Docket Number: No. 86CA0323,86CA0323
• Citation: 767 P.2d 787
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas BOEHMER, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 787

767 P.2d 787

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas BOEHMER, Defendant-Appellant.

No. 86CA0323.

Colorado Court of Appeals Div. I.

Nov. 25, 1988.

Rehearing Denied Dec. 22, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Russel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Thomas R. Williamson, Tad Overturf, Deputy State Public Defenders, Denver, for defendant-appellant.

HUME, Judge.

Defendant, Douglas Boehmer, appeals from the trial court's order denying his motion for post-conviction relief. We set aside the order and remand with directions that the trial court rule upon defendant's request for appointment of counsel and for a hearing on his Crim.P. 35(c) motion.

Defendant was convicted in 1978 of aggravated robbery, conspiracy to commit theft, and theft, was adjudged an habitual offender as an adjunct to those convictions, and was sentenced to life imprisonment. Defendant appealed the convictions, and filed various motions for post-conviction relief prior to the motion now before us. He presently remains incarcerated on the 1978 convictions and sentence.

On March 18, 1985, jointly with Roger Garcia, defendant filed his Crim.P. 35(c) motion. The motion asserted that their convictions were obtained unlawfully because defendants had been denied their constitutional right to testify at trial, that some of the convictions underlying each of their respective habitual offender proceedings were not felonies or otherwise were constitutionally infirm, and that they had been denied effective assistance of counsel because they had been jointly represented by trial counsel despite the existence of conflicts of interest. The motion requested appointment of counsel for the Crim.P. 35(c) motion proceedings, and a hearing on the allegations made in that motion.

After some delay, the trial court denied the motion without a hearing and without appointment of counsel. Appellate procedures resulted in a severance of defendants' initial joint appeal of that order.

Boehmer's motion avers that he had desired to testify in his own behalf at the trial, but that his counsel had told him that if he insisted upon doing so, counsel would withdraw from the case, and defendant would have to continue without representation. He also alleged that his counsel had not advised the court about the disagreement concerning Boehmer giving testimony. The record reflects that defendant did not testify at the trial.

In further support of the motion, defendant submitted an affidavit from trial counsel which stated:

"During the course of the trial I did inform defendants that if they insisted on testifying in their defense as they proposed to do, I would withdraw from the case.

I did not bring the issue before the court ... so that the court could advise the defendants of their rights in the matter."

Defendant contends that the motion was sufficient to require an evidentiary hearing to resolve the issues it presented, and that the court erred in denying it without a hearing and without properly considering his request for appointed counsel. We agree.

An evidentiary hearing is not required under Crim.P. 35(c) if the motion, the files, and the record present only issues of law, People v. Martinez, 184 Colo. 155, 524 P.2d 73 (1974), or if the motion fails to specify facts supporting a claim for relief. Hooker v. People, 173 Colo. 226, 477 P.2d 376 (1970).

Here, however, defendant's motion specifically alleged facts which, if proven, might support the claim that he was deprived of the right to testify under an impermissible threat of loss of assistance of counsel. Moreover, those facts are arguably corroborated by former counsel's affidavit. Also, those allegations involve matters substantially outside the record of court proceedings, and are sufficient to require an evidentiary hearing to permit defendant to attempt to prove them, with assistance of counsel. See People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974); Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967).

In Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), the court determined that effective assistance of counsel does not include a requirement that counsel present testimony he reasonably believes to be false, and that the constitutional right of an accused to testify in his own defense does not extend to a right to testify falsely. Accordingly, the Supreme Court held that an attorney who refused to assist his client in presenting false testimony did not force upon the defendant an impermissible choice between his constitutional right to testify and his right to effective assistance of counsel, and that counsel's adherence to ethical standards which precluded his subornation of perjury or knowing perversion of the interests of justice by presenting false evidence did not impermissibly burden his client's right to testify in his own behalf. We conclude...