People v. Cortes-Gonzalez

• Decision Date: 21 March 2022
• Docket Number: 21SA308
• Citation: 2022 CO 14
• Court: Colorado Supreme Court
• Parties: In Re The People of the State of Colorado, Plaintiff v. Jared Cortes-Gonzalez. Defendant

2022 CO 14

In Re The People of the State of Colorado, Plaintiff
v.
Jared Cortes-Gonzalez. Defendant

No. 21SA308

Supreme Court of Colorado, En Banc

March 21, 2022

Original Proceeding Pursuant to C.A.R. 21 Weld County District Court Case Nos. 15CR74, 16CR671, 18CR273 & 18CR686 Honorable Timothy G. Kerns, Judge

Attorneys for Plaintiff:

Michael J. Rourke, District Attorney, Nineteenth Judicial District

Travis M. Winter, Deputy District Attorney

Greeley, Colorado

Attorneys for Defendant:

Megan A. Ring, Public Defender

Megan Bishop, Deputy Public Defender

Michele Newell, Deputy Public Defender

Ashley E. Sullivan, Deputy Public Defender

Greeley, Colorado

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Attorney for Respondent Stephanie Perkins:

Reppucci Law Firm, P.C.

Jonathan D. Reppucci

Denver, Colorado

Attorneys for Respondent Weld County District Court:

Philip J. Weiser, Attorney General

Michael Kotlarczyk, Assistant Attorney General

Denver, Colorado

Attorneys for Amici Curiae Office of Alternate Defense Counsel and Colorado Criminal Defense Bar:

Law Offices of Ann M. Roan, LLC

Ann M. Roan

Boulder, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.

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OPINION

SAMOUR, JUSTICE

¶1 A party may not use the attorney-client privilege as both a shield and a sword. This is by no means breaking news. Indeed, the rule's vintage is the late 1800s. See Hunt v. Blackburn, 128 U.S. 464 (1888). In Blackburn, the Supreme Court explained, in the simplest of terms, that "[w]hen Mrs. Blackburn entered upon a line of defense which involved what transpired between herself and Mr. Weatherford [her attorney], and respecting which she testified, she waived her right to object to his giving his own account of the matter." Id. at 470-71. The Court viewed this proposition as so self-evident that it supported it with neither authority nor analysis. See Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003).

¶2 In the ensuing centuries, courts and commentators alike have come to call this rule "the fairness principle"-a label that fits like a glove. If, facing an ineffective assistance of counsel claim from a client who has placed attorney-client confidentialities at issue, an attorney were precluded from testifying about those confidentialities, it would unfairly set up a procedural mousetrap and inhibit, if not altogether derail, the truth-finding process. Without a waiver of the attorney-client privilege, such a client would be permitted to use the privilege not only as intended-a shield to protect attorney-client confidentialities-but also as a sword to pursue an ineffective assistance claim based on those very confidentialities. Talk about unfair.

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¶3 Not surprisingly, the parties in this interlocutory appeal see eye-to-eye on the fairness principle. They lock horns, however, on how exactly it should be effectuated in the context of a postconviction Crim. P. 35(c) claim of ineffective assistance of counsel. Today we hope to illuminate this dimly lit area of Colorado law.

¶4 First, we hold that whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives the attorney-client privilege, as well as any other confidentiality, between counsel and the defendant, but only with respect to the information that is related to the ineffective assistance claim. See § 18-1-417(1), C.R.S. (2021). Such a waiver extends to attorney work product and to any confidentiality between the defendant or counsel and any expert witness retained or appointed in connection with the defendant's legal representation. Id.^[1]

¶5 Nothing in section 18-1-417(1) renders the applicable waiver discretionary. The waiver is automatic. And, with the prohibition on the disclosure of attorney-client confidentialities removed, the allegedly ineffective counsel has no

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reason to refuse to discuss with, or disclose to, the prosecution such confidentialities, so long as they are related to the ineffective assistance claim advanced. Thus, when the prosecution properly requests confidential information related to an ineffective assistance claim, the allegedly ineffective counsel must produce the requested information without undue delay.

¶6 Second, we hold that the procedures set forth in Crim. P. 35(c)(3)(V) in no way modify section 18-1-417. No provision in Crim. P. 35(c)(3)(V) mentions section 18-1-417 or deals with attorney-client confidentialities. Contrary to alternate defense counsel's contention, the scope of the statutory waiver is contingent on the nature of the ineffective assistance claim lodged, not on any action taken by the court pursuant to Crim. P. 35(c)(3)(V).

¶7 We recognize, however, that prosecutors will generally wait to seek confidential information related to an ineffective assistance claim until, pursuant to Crim. P. 35(c)(3)(V), the court has requested a response from them or set a hearing. In our view, this is the preferred practice. Given the importance of the protection afforded confidential attorney-client information, prosecutors would do well to avoid requesting access to such information until they have a need for it.

¶8 Third, we hold that it is improper for prosecutors to request an order or use a Crim. P. 17 subpoena duces tecum ("SDT") to attempt to access the confidential

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information covered by section 18-1-417(1). The statutory waiver is automatically triggered by the assertion of an ineffective assistance claim, and the scope of that waiver is moored to the nature of the claim. There's no need to seek an order or use an SDT.

¶9 Relatedly, because the statutory waiver is cabined by the nature of the ineffective assistance claim, it is improper for prosecutors to ever request the production of confidential information that's unrelated to the claim. Hence, whether through an order or an SDT, attempting to compel the production of the allegedly ineffective counsel's entire case file without regard to the nature of the claim runs afoul of Colorado law.

¶10 Fourth, we hold that the prosecution doesn't have an inherent right to an in camera review of the allegedly ineffective counsel's case file-even if the purpose of the review is to ensure that all the information subject to the waiver will be produced. As we've previously recognized, in camera disclosure to the court is still a disclosure, and even if it goes no further and the court declines to share any documents with the parties, the review itself could have a chilling effect on attorneys and their clients, especially if prosecutors are able to frequently and easily obtain in camera review. Prosecutors must trust that the allegedly ineffective counsel will proceed in accordance with all ethical duties.

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¶11 Finally, we hold that after the allegedly ineffective counsel has produced the confidential information covered by the automatic waiver in section 18-1-417(1), the court may grant a request for an in camera review of the allegedly ineffective counsel's entire case file if-and only if-the prosecution clears the hurdle we erected in People v. Madera, 112 P.3d 688, 691 (Colo. 2005). As relevant here, under Madera, the prosecution must have a reasonable good faith belief that in camera inspection of the allegedly ineffective counsel's case file will reveal that the additional information sought falls within the statutory waiver. 112 P.3d at 691. In the event the court finds that the prosecution has satisfied the Madera standard, it should order the allegedly ineffective counsel to produce the entire case file for an in camera review to determine whether there is additional information related to the ineffective assistance claim. After any in camera review, the court must disclose to the prosecution claim-related information not previously produced.

I. Procedural History

¶12 Jared Cortes-Gonzalez picked up four felony cases in Weld County. In November 2018, he entered into a global disposition that required him to plead guilty in all four cases, including two in which he faced complaints to revoke his probation. The plea agreement indicated that, while the sentences would be within the court's discretion, the cumulative prison term would not exceed twenty years. In mid-January 2019, the district court sentenced Cortes-Gonzalez in

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accordance with the plea agreement to an aggregate term of twenty years in prison.

¶13 Two weeks later, Cortes-Gonzalez filed a "Motion to Consider 35-C," alleging that his attorney (the "public defender") had provided ineffective assistance by failing to accurately advise him of the plea agreement's potential punishment. According to Cortes-Gonzalez, the public defender had represented to him that he would be sentenced to either eight years in a "halfway house" or eight to twelve years in prison. Cortes-Gonzalez added that the public defender had coerced him into executing the plea agreement.

¶14 The day after receiving Cortes-Gonzalez's motion, the district court appointed alternate defense counsel to represent him. Nevertheless, Cortes-Gonzalez proceeded to file additional pro se motions alleging ineffective assistance of counsel and seeking to withdraw his November 2018 guilty pleas.

¶15 More than two years later, in April 2021, alternate defense counsel submitted a supplemental Crim. P. 35(c) motion. In support of Cortes-Gonzalez's request to withdraw his guilty pleas, she advanced a two-pronged ineffective assistance claim: (1) Cortes-Gonzalez's guilty pleas were not entered knowingly because he was not fully aware of the sentencing consequences he faced under the plea agreement; and (2) a language barrier prevented Cortes-Gonzalez from entering his guilty pleas knowingly and voluntarily. Thereafter, Cortes-Gonzalez

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submitted yet another pro se motion, this time asserting that the public...