People v. Duran, 85CA1504

Citation757 P.2d 1096
Decision Date03 March 1988
Docket NumberNo. 85CA1504,85CA1504
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gilbert A. DURAN, Defendant-Appellant. . I
CourtCourt of Appeals of Colorado

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Krikscium, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.

BABCOCK, Judge.

Defendant, Gilbert A. Duran, was convicted of three counts of aggravated robbery in 1975. In 1980, defendant filed a pro se motion for postconviction relief pursuant to Crim.P. 35(c), alleging that he had not received effective assistance of counsel at trial. Defendant appeals the trial court's denial of that motion, and we remand with directions.

I.

Defendant contends that it was plain error for the trial court to require him to proceed pro se at the Crim.P. 35(c) hearing without a valid waiver of his right to counsel.

Defendant was informed by the public defender's office, which had represented him at trial, that it could not represent him on the ineffective assistance claim because of an apparent ethical conflict. Defendant appeared at the Crim.P. 35 hearing without an attorney, and the following exchange occurred:

"THE COURT: You are appearing today without an attorney, I see. I guess you wish to proceed without one?

"THE DEFENDANT: Well, at this particular time I don't have the necessary funds to hire an attorney.

"THE COURT: Well, of course, you have never asked the Court to appoint you one or--did you contact a Public Defender to see if he would represent you?

"THE DEFENDANT: I have spoken with him on different occasions about this matter here, and he has informed me that it would be a conflict with his office to represent me on this matter.

"THE COURT: You didn't bring that to the attention of the Court either, did you?

"THE DEFENDANT: Not in this courtroom. In another courtroom I have.

"THE COURT: Not in this case?

"THE DEFENDANT: Part of this case.

"THE COURT: I have just examined the file, and I don't see anything in here where you have requested to have an attorney appointed nor that you have contacted the Public Defender, or there is just no indication at all.

"You have filed it pro se, and I assumed that you were going to proceed pro se without an attorney. So we will proceed."

There is no Sixth Amendment right to counsel in a Crim.P. 35 hearing. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Nor does a right to counsel exist in Crim.P. 35 proceedings under Colo. Const. Art. II, § 16. See People v. Naranjo, 738 P.2d 407 (Colo.App.1987).

However, a limited statutory right to counsel exists in such proceedings. See §§ 21-1-103(1) and 21-1-104, C.R.S. (1986 Repl. Vol. 8B); People v. Naranjo, supra. Section 21-1-103(1) provides that the state public defender shall represent indigent defendants who either request or, on a court's order therefore, do not reject such representation. Section 21-1-104(1)(b) further provides that the public defender shall "prosecute any ... remedies ... after conviction that he considers to be in the interest of justice." However, under § 21-1-104(2), the public defender is not required to pursue such remedies unless he is "satisfied first that there is arguable merit to the proceeding."

Because defendant's right to counsel in this Crim.P. 35 proceeding is statutory and not constitutional, its waiver must be voluntary but need not be knowing and intelligent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Allen, 744 P.2d 73 (Colo.1987); People v. Moody, 676 P.2d 691 (Colo.1984). Whether there was a voluntary waiver is a question of fact to be determined by the trial court. See People v. DeBaca, 736 P.2d 25 (Colo.1987); People v. Fish, 660 P.2d 505 (Colo.1983).

Here, the trial court's findings on the record now before use are inadequate to determine whether defendant voluntarily waived his statutory right to counsel in this Crim.P. 35 proceeding. Hence, this case must be remanded for the entry of findings of fact and conclusions of law based on the record made, or in the trial court's discretion, upon further hearing, whether defendant voluntarily waived his statutory right to counsel.

If the trial court finds the waiver to be involuntary, then plain error occurred, see Wilson v. People, 743 P.2d 415 (Colo.1987), and defendant is entitled to a new hearing on his Crim.P. 35 motion. In this event, the trial court shall determine defendant's eligibility for court-appointed counsel and whether he desires court-appointed counsel. If so, court-appointed counsel shall determine whether to proceed according to the standards set forth in § 21-1-104(1)(b) and (2), C.R.S. (1986 Repl.Vol. 8B), and shall advise the trial court accordingly.

II.

Defendant's primary contention on appeal remains whether the trial court erred in denying his Crim.P. 35 motion alleging ineffective assistance of counsel at trial. Because the trial court may find and conclude that defendant voluntarily waived his statutory right to counsel at the Crim. P. 35 heari...

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18 cases
  • People v. Wiedemer
    • United States
    • Supreme Court of Colorado
    • May 10, 1993
    ...to seek collateral review of a constitutionally flawed conviction as a " 'substantive right' " guaranteed by statute); People v. Duran, 757 P.2d 1096, 1097 (Colo.App.1988) (relying on Finley for the view that there is no Sixth Amendment right to counsel in a Crim.P. 35 hearing and stating t......
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    ...v. Price, 868 P.2d 375, 379 (Colo.1994). Nor does such a right to counsel exist by virtue of Colo. Const. art. II, § 16. People v. Duran, 757 P.2d 1096 (Colo. App.1988). In Brinklow v. Riveland, 773 P.2d 517, 521 (Colo.1989), the court held that "due process does not demand" appointment of ......
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    ...that there is no constitutional right to counsel in collateral attack, despite such a right on direct appeal); People v. Duran, 757 P.2d 1096, 1097 (Colo.App.1988) (holding that there is no constitutional right to counsel in a Crim.P. Rule 35 Here, Jurgevich is pursuing a collateral attack,......
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    ...right to counsel, courts examine the waiver to determine whether it was knowing, voluntary, and intelligent. People v. Duran, 757 P.2d 1096, 1097 (Colo. App.1988). However, the analysis of the waiver of the limited statutory right to counsel is based on deciding whether the waiver was simpl......
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