People v. Breaman
| Decision Date | 23 June 1997 |
| Docket Number | No. 96SC307,96SC307 |
| Citation | 939 P.2d 1348 |
| Parties | 21 Colorado Journal 864 The PEOPLE of the State of Colorado, Petitioner, v. Neil Gerald BREAMAN, Respondent. |
| Court | Colorado Supreme Court |
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.
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.
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 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. The court of appeals reversed the district court order dismissing the motion and remanded the case. Id. The People appealed the court of appeals decision and we granted certiorari to review the question of whether the district court erroneously directed the appointed defense attorney to conduct an investigation regarding the merit of Breaman's Crim. P. 35(c) motion. In deciding this issue, we address both aspects of the court of appeals holding: namely, whether the district court's instructions conflicted with the appointed attorney's duties to Breaman; and whether the district court erred in failing to make its own findings of fact and conclusions of law.
In considering the district court's instructions to the appointed attorney, we first note that this court has not recognized a right to counsel with respect to Crim. P. 35(c) motions. See Duran v. Price, 868 P.2d 375, 379 (Colo.1994); Murphy v. People, 863 P.2d 301, 304 n. 9 (Colo.1993). But see People v. Hickey, 914 P.2d 377, 379 (Colo.App.1995) (); People v. Duran, 757 P.2d 1096, 1097 (Colo.App.1988) (); People v. Naranjo, 738 P.2d 407, 409 (Colo.App.1987) (same). We have held, however, that a district court has the authority to appoint counsel in Crim P. 35(c) proceedings. See Duran, 868 P.2d at 379; Murphy, 863 P.2d at 304 n. 9.
A court-appointed public defender does not have a duty to prosecute a claim for post-conviction relief after determining that there is no arguable merit to the defendant's claim. See § 21-1-104(2), 8B C.R.S. (1986) (); Colo. RPC 3.1 ().
Therefore, the district court had the discretion to appoint counsel and the court's instructions were generally consistent with the applicable statutory and professional obligations imposed upon the attorney. 1 However, we find the district court erred not because it instructed the appointed attorney to determine whether Breaman's claims were meritorious, but rather because of the manner in which it did so.
An attorney appointed to represent a criminal defendant must not have a conflict of interest, see Murphy, 863 P.2d at 304, and must provide the client with professionally competent assistance, see Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). The attorney is appointed for the purpose of representing the defendant, not to serve as the court's fact-finder. The court may instruct the attorney that he or she is not required to pursue meritless claims and that he or she may request permission to withdraw after determining that the defendant's claims are without merit. 2 It is not proper, however, for the court to appoint an attorney solely for the purpose of investigating the merit of a defendant's claims. The distinction is subtle but important.
In this case, the district court's order was impermissible. The order did not appoint counsel for the purpose of representing Breaman in the prosecution of his claims, but rather "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 appointed attorney's status report does not include any reference to a conversation with Breaman, and it appears that, consistent with the court's instructions, he reviewed the claims and reported directly to the court. Breaman did not have a right to appointed counsel. Having made the decision to appoint such counsel, however, the district court was not entitled to deny Breaman the effective representation of that counsel. Although it was proper for the...
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...and conclusions of law that could have been adopted by the trial court in denying defendant's Crim. P. 35(c) motion. See People v. Breaman, 939 P.2d 1348 (Colo.1997) (in all postconviction cases, regardless whether a hearing is required, the court shall decide the issues and make findings o......
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