People v. Duran, 85CA1504
Citation | 757 P.2d 1096 |
Decision Date | 03 March 1988 |
Docket Number | No. 85CA1504,85CA1504 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gilbert A. DURAN, Defendant-Appellant. . I |
Court | Court 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.
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.
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:
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.
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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