People v. Breaman, 96SC307

• Docket Nº: No. 96SC307
• Citation: 939 P.2d 1348
• Case Date: June 23, 1997
• Court: Supreme Court of Colorado

Page 1348

939 P.2d 1348 21 Colorado Journal 864 The PEOPLE of the State of Colorado, Petitioner,
v.
Neil Gerald BREAMAN, Respondent. No. 96SC307. Supreme Court of Colorado,
En Banc. June 23, 1997.

Page 1349

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, M. Catherine Duba, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

Shanahan, Dumler, Swanson & Olsson, P.C., Conrad T. Swanson, Fort Collins, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in People v. Breaman, 924 P.2d 1139 (Colo.App.1996), reversing a district court order denying defendant Neal Gerald Breaman's motion for post-conviction relief pursuant to Crim. P. 35(c). Because we agree that the district court erred in its directions to counsel and in its failure to enter independent findings and conclusions upon review of Breaman's motion, we affirm the court of appeals.

I.

On September 5, 1991, pursuant to a plea agreement, Breaman entered a guilty plea to one count of attempted second degree kidnapping in exchange for the dismissal of a third degree sexual assault charge. The plea agreement was signed by Breaman, Breaman's appointed counsel, and a deputy district attorney. The district court sentenced Breaman to twenty years in the Department of Corrections pursuant to a stipulation in the plea agreement.

On November 27, 1992, Breaman filed a Motion for Free Transcript requesting transcripts of all the hearings held in his case as well as copies of all depositions, pre-sentence investigation reports, sentence recommendation reports, and pre-trial plea negotiations. In the motion, Breaman alleged that he had a meritorious basis for retraction of his guilty plea and that he needed the transcripts and documents to pursue post-conviction relief. On April 8, 1993, the district court denied Breaman's motion and made the following findings:

The Court would note that this was a stipulated 20-year sentence based upon a plea bargain wherein the defendant[,] who is [sic] on parole at the time of the offense, did receive a significant concession and the Court has already found that not only is there a factual basis for his plea, but that he was represented by competent, effective counsel and that the defendant's plea was freely, knowingly, intelligently, and voluntarily made with the defendant being advised as to the possible penalties, and an affirmation that he knew and understood the terms of the disposition. Therefore, under these circumstances, the Court does not find it appropriate to incur the additional expense in providing transcripts or the other matters which defendant seeks which are beyond this Court's jurisdiction.

Over a year later, on July 7, 1994, Breaman filed a pro se Crim. P. 35(c) motion requesting the district court to vacate his sentence. Breaman alleged in his motion that he received ineffective assistance of counsel, that his plea was not knowing and voluntary, and that he did not commit the

Page 1350

crime to which he pled guilty. Breaman also filed a motion requesting the district court to appoint counsel to assist him with his Crim. P. 35(c) motion.

In response to Breaman's motions, the district court issued an order appointing an attorney "to review [Breaman's] submissions, consult with [Breaman] and make such further investigations as may be appropriate to determine if a meritorious issue exists." The district court order further stated, "If counsel determines that meritorious issues exist, it shall file an amended motion specifying those issues and the Court will then set such proceedings as may be appropriate."

On December 21, 1994, the appointed attorney filed a status report indicating that he had: (1) reviewed the court files and the transcripts in the dispositional hearings; (2) discussed the case with the arresting officer; (3) discussed the case with the attorney who allegedly gave Breaman ineffective assistance and reviewed her entire file; (4) reviewed the district attorney's file; and (5) researched the applicable law. Based upon that review, the appointed attorney reached the following two conclusions in his status report:

1. That the conduct of prior Counsel for the Defendant in the defense and disposition of this case did not fall below an objective standard of reasonableness.

2. That the contentions raised in the Defendant's Motion to Vacate Sentence Pursuant to C.R.C.P. 35(c) are without arguable merit and that the Defendant's Constitutional Rights throughout the proceedings were adequately protected.

After receiving the status report, the district court summarily denied Breaman's Crim. P. 35(c) motion. The district court did not articulate any findings of fact or conclusions of law, and did not provide any basis for its denial other than the recommendation of the appointed attorney. Breaman appealed the denial of his motion.

The court of appeals held that the district court committed two errors. First, it concluded that the court erred in instructing the appointed attorney to conduct an investigation and report on the validity of Breaman's allegations because "such responsibility may conflict with counsel's duty to present on the client's behalf such assertions and arguments as may reasonably be advanced, even though counsel may consider that they are extremely unlikely to win the day." Breaman, 924 P.2d at 1141. Second, the court of appeals held that the district court erred in dismissing Breaman's Crim. P. 35(c) motion without making its own findings and conclusions. Id. at 1142...