People v. Chipman
| Decision Date | 08 October 2015 |
| Docket Number | Court of Appeals No. 13CA2098 |
| Citation | 370 P.3d 330 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Michael James CHIPMAN, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
The Noble Law Firm, LLC, Antony Noble, Ruchi Kapoor, Lakewood, Colorado, for Defendant–Appellant.
Opinion by JUDGE BERNARD
¶ 1 A jury convicted defendant, Michael James Chipman, of several felonies. He appealed. A division of this court affirmed some of his convictions, but it reversed others. On retrial, a second jury convicted him of lesser, although related, charges. The same attorney represented defendant at both trials.
¶ 2 Defendant contended in a Crim. P. 35(c)
motion that his trial counsel had been ineffective for three reasons. One reason arose out of counsel's representation in the first trial. The postconviction court denied the Crim. P. 35(c) motion, and defendant filed this appeal.
¶ 3 This appeal poses a question of first impression in Colorado: Is a postconviction claim that a defendant's trial counsel was ineffective moot if an appellate court has granted the defendant relief in a previous direct appeal? In the context of the facts of this case, we conclude that the answer to the question is "yes" because defendant received all the relief to which he was entitled when the division reversed the convictions; the postconviction court could not have given him anything more. We therefore dismiss defendant's appeal of this issue.
¶ 5 Last, the Crim. P. 35(c)
motion also asserted that defendant had been incompetent during his first trial. The postconviction court, the motion continued, should therefore grant him a new trial on the convictions that the division had affirmed in the direct appeal. The postconviction court denied this request as well as defendant's additional motion for a second retroactive competency examination. We affirm those decisions, too.
¶ 6 Defendant occupied the apex of a lovers' triangle. He was married. But his wife knew about his intimate relationship with another woman, who was the victim of his crimes in this case. His wife approved when the victim moved into the marital home.
¶ 7 Because defendant had a drinking problem, his wife decided to divorce him. She obtained a court order that forced him to leave the marital home. The victim continued to live there with defendant's now ex-wife.
¶ 8 Things got rough from there on out. Defendant returned to his home at least twice, and he committed crimes both times.
¶ 9 Defendant returned to the marital home in October 2000. The victim answered the door. Defendant was drunk, and he was carrying a pistol in a bag. He demanded that the victim let him in so that he could take a shower and so that he could speak with his ex-wife.
¶ 10 The victim told him to leave, and she called the police. Police officers arrested defendant, and the prosecution charged him with (1) criminal trespass; (2) carrying a concealed weapon; and (3) prohibited use of a weapon.
¶ 11 The ex-wife went to court and obtained a restraining order. The order forbade defendant from approaching or contacting his ex-wife and from going to the marital home.
¶ 12 Despite the restraining order, defendant went back to the marital home in September 2001. The victim came to the door, but she did not open it. She locked it instead, and she told defendant that he had to leave.
¶ 13 Defendant became very angry. He told the victim to open "the goddamn" door. She called the police.
¶ 14 She thought that defendant was going to leave, but she was wrong. He walked to his car, where he grabbed a .44 magnum revolver.
¶ 15 Now armed, he returned to the front door, and he forced it open. He found the victim in the kitchen.
¶ 16 He walked up to her, and he told her that she should not call the police. When she replied that the police were on their way, he said, "I told you not to call the police."
¶ 17 He pointed the revolver at her chest. She dove at the pistol, and she pushed the barrel toward the ground, away from her torso. Defendant fired a shot, and the bullet hit the victim in the hip. Defendant said, "Great reflexes, I'm impressed." The victim struggled with defendant over the gun, and she managed to disable it by pulling out its cylinder
.
¶ 18 Police officers arrived. They arrested defendant. The prosecution charged him with attempted first degree murder, first degree burglary, menacing, first degree assault, aggravated intimidation of a victim or a witness, two crime-of-violence sentence enhancers, violating bail bond conditions, and violating a restraining order.
¶ 19 In the first trial, the jury convicted defendant of all the charges from both of the incidents. Defendant appealed. A division of this court affirmed the convictions on the charges that arose out of the October 2000 incident. People v. Chipman, 2007 WL 416566 (Colo.App. No. 02CA1917, Feb. 8, 2007)
(not published pursuant to
). But the division reversed most of the convictions that arose out of the September 2001 incident, except for the convictions for violating bail bond conditions and violating a restraining order. Id. at 17–18. The division ordered a new trial on the convictions that it had reversed. Id. at 18.
¶ 20 The jury in the second trial convicted defendant of attempted second degree murder, first degree burglary, menacing, second degree assault, reckless endangerment, and trespass. Defendant filed another appeal, but the court of appeals later dismissed it at his request.
¶ 21 Defendant then filed a pro se Crim. P. 35(c)
motion. The postconviction court appointed counsel to represent him, and counsel filed a supplemental motion. The supplemental motion raised the three contentions of ineffective assistance that we consider in this appeal. One of those contentions focused on the quality of trial counsel's representation in the first trial. Defendant also claimed that he had been incompetent during the first trial.
¶ 22 The postconviction court denied defendant's three ineffective assistance of counsel claims without a hearing, but it set an evidentiary hearing on his incompetency claim. The court ordered a psychiatrist to perform a retroactive competency evaluation of defendant.
¶ 23 After the evaluation, the psychiatrist wrote a report that contained his opinion that defendant had been competent during the first trial. After reviewing this report, the prosecution filed a motion asking the postconviction court to vacate the evidentiary hearing and to deny defendant's Crim. P. 35(c)
claim that he had been incompetent during his first trial. Defendant filed a motion asking for a second competency examination. The postconviction court granted the prosecution's motion, and it denied defendant's motion.
¶ 24 Defendant contends that the postconviction court erred when, without a hearing, it denied his three Crim. P. 35(c)
claims that his trial counsel had been ineffective. We disagree.
¶ 25 "When the motion, the files, and the record clearly establish that the defendant is not entitled to relief, a court may deny a Crim. P. 35(c)
motion without a hearing." People v. Osorio, 170 P.3d 796, 799 (Colo.App.2007) ; see also Crim. P. 35(c)(3)(IV). A postconviction court may also deny a Crim. P. 35(c) motion without a hearing if "the allegations of counsel's deficient performance are merely conclusory, vague, or lacking in detail." Osorio, 170 P.3d at 799.
¶ 26 We review a postconviction court's summary denial of a defendant's postconviction motion for relief de novo. People v. Trujillo, 169 P.3d 235, 237 (Colo.App.2007)
.
¶ 27 Defendants have a Sixth Amendment right to the reasonably effective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
; Ardolino v. People, 69 P.3d 73, 76 (Colo.2003). "Because the purpose of the requirement of effective assistance is to ensure a fair trial, however, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Ardolino, 69 P.3d at 76.
¶ 28 Based on this purpose, defendants must show that (1) their trial counsel's performance was deficient; and (2) their counsel's deficient performance prejudiced them. Strickland, 466 U.S. at 687, 104 S.Ct. 2052
¶ 29 To establish deficient performance, defendants bear the burden of showing that, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052
. In evaluating such a claim, courts must (1) "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Ardolino, 69 P.3d at 76
; and (2) avoid "the distorting effects of hindsight," Trujillo, 169 P.3d at 238.
¶ 30 Defendants must therefore "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Davis v. People, 871 P.2d 769, 772 (Colo.1994)
(internal quotation marks omitted). Indeed, "[s]trategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable." Ardolino, 69 P.3d at 76.
¶ 31 To establish prejudice, defendants "must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Osorio, 170 P.3d at 799
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