People v. Isham

• Decision Date: 24 November 1995
• Docket Number: No. 94CA1388,94CA1388
• Citation: 923 P.2d 190
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Keith ISHAM, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 190

923 P.2d 190

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Keith ISHAM, Defendant-Appellant.

No. 94CA1388.

Colorado Court of Appeals,

Div. V.

Nov. 24, 1995.

Rehearing Denied Jan. 4, 1996.

Certiorari Denied Sept. 3, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Matthew S. Holman, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Lee E. Christian, P.C., Lee E. Christian, Fort Collins, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

In this appeal from the denial of his motion for post-conviction relief pursuant to Crim.P. 35(c), defendant, Donald Keith Isham, claims that ineffective assistance of counsel rendered his guilty plea invalid, that the coercive effect of his plea agreement rendered his guilty plea involuntary, and that his right to continued representation by appointed counsel was violated when the court arbitrarily disqualified his counsel of choice. He therefore contends that his guilty plea must be vacated. We affirm.

Defendant and his father each were charged with first degree murder. Defendant's appointed counsel (original counsel) filed a motion for suppression of evidence, supported by his own affidavit. Because of this, the trial court, after a brief hearing, disqualified original counsel on the basis of a conflict of interest.

At the same hearing, the court appointed replacement counsel, who was accepted by defendant. Subsequently, however, replacement counsel filed a motion to withdraw and, on behalf of defendant, requested reappointment of original counsel. The motion was denied. Defendant then sought relief pursuant to C.A.R. 21, but the supreme court declined to exercise jurisdiction.

Ultimately, with the assistance of replacement counsel, defendant entered a plea of guilty to second degree murder. One condition of the plea was that charges against his father, who was terminally ill, be dropped. After his father died, defendant filed this motion which was denied following a hearing.

I.

Relying on Anaya v. People, 764 P.2d 779 (Colo.1988), defendant asserts that his Sixth Amendment right to counsel was violated when the trial court arbitrarily disqualified his counsel of choice. He contends, consequently, that his guilty plea must be vacated. We agree that the disqualification issue was not properly addressed but conclude that reversal is not required.

A.

Under the Sixth Amendment article II, § 16 of the Colorado Constitution, a criminal defendant has a right to counsel. People v. Garcia, 815 P.2d 937 (Colo.1991), cert. denied 502 U.S. 1121, 112 S.Ct. 1242, 117 L.Ed.2d 475 (1992).

When counsel is retained, there is a presumption in favor of a defendant's choice of counsel. See Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), cert. denied 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); see also Anaya v. People, supra. However, an indigent defendant does not have the right to choose his appointed counsel. People v. Arguello, 772 P.2d 87 (Colo.1989); see 2 W. LaFave & J. Israel, Criminal Procedure § 11.4(a) (1984) (suggesting three administrative grounds for limiting indigents' choice in counsel appointment).

Indigent defendants are, nonetheless, "entitled to continued and effective representation by court appointed counsel in the absence of a demonstrable basis in fact and law to terminate that appointment." Williams v. District Court, 700 P.2d 549, 555 (Colo.1985) (emphasis added). Hence, once counsel is appointed, the parties' entry into an attorney-client relationship is no less inviolable than if the counsel had been retained by the defendant. Rodriguez v. District Court, supra (consideration of a defendant's preference for continued representation by the public defender permits waiver of right to conflict-free counsel to prevent disqualification of his attorney); see also ABA, Standards for Criminal Justice Standard 4-3.9 (1986) ("Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.").

The right to continue with any particular attorney, appointed or retained, may be outweighed, however, by the showing of an ethical conflict or a serious potential for conflict. When such a conflict arises, the preference for a particular attorney must be balanced with the right to have a defense conducted by an attorney who is free of such conflict. See Tyson v. District Court, 891 P.2d 984 (Colo.1995).

To balance these interests, the trial court must "assess the defendant's preference for particular counsel, the nature of the conflict, and the public's interest in maintaining the integrity of the judicial process." Tyson v. District Court, supra, 891 P.2d at 990. In the case of an indigent defendant, his "desire for continued representation by the public defender is entitled to great weight." Rodriguez v. District Court, supra, 719 P.2d at 707. But, "[i]n some circumstances, fundamental considerations other than a defendant's desires are given controlling significance. These considerations relate to the paramount necessity of preserving the public confidence in the integrity of the administration of justice." People v. Martinez, 869 P.2d 519, 527 (Colo.1994).

Here, the trial court did not balance defendant's interest against the severity of the conflict and the interests of the judicial system. Instead, it applied the wrong legal standard, disqualifying original counsel because it assumed that disqualification was required if the attorney would be called to testify in a hearing to suppress evidence.

Disqualification, however, is not mandated by this potential conflict. See Taylor v. Grogan, 900 P.2d 60, 63 (Colo.1995) ("[M]ere violation of a disciplinary rule does not automatically result in disqualification. The critical question is whether the litigation can be conducted in fairness to all parties."). While counsel may have used dubious judgment in creating a potential conflict by acting as affiant for his own motion, this conduct was not sufficient to be considered, ipso facto, a threat to the integrity of the judicial system.

Moreover, the record indicates that the trial court's questioning was conducted without prior notice to defendant, and consisted of cursory and confusing questions which elicited yes and no answers. The inquiry was sufficiently nebulous that defendant had no meaningful opportunity to declare any preferences.

B.

In the context of a trial, the erroneous disqualification of a defendant's counsel cannot be considered harmless. Anaya v. People, supra. Consequently, defendant claims that his guilty plea must be vacated. As pertinent here, however, the Anaya decision did not address the applicability of this automatic-reversal rule to a plea of guilty, and there is little in that opinion which indicates the court's direction on that issue. We distinguish the rationale put forth in Anaya, and conclude that a guilty plea need not be vacated after improper disqualification of original counsel if defendant acquiesces to representation by replacement counsel for entry of his plea.

In Anaya, the supreme court provided two rationales that weigh heavily in favor of requiring automatic reversal.

First, in the context of trial, it is extremely difficult to show prejudice because "there is no way to know whether the character of the proceedings would have changed, whether counsel would have made different decisions, or whether the defense strategy would have been different if counsel of choice had represented the defendant." Anaya v. People, supra, 764 P.2d at 782.

In the context of a guilty plea, however, it is, irrelevant that advice may have been different under another counsel. "[W]hen the defendant ... admits his guilt, he ... assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts." McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 1450, 25 L.Ed.2d 763, 775 (1970).

A defendant can successfully attack a plea only if he can prove serious dereliction on the part of counsel sufficient to show that his plea was not a knowing and intelligent act. McMann v. Richardson supra; see also People v. White, 182 Colo. 417, 514 P.2d 69 (1973). The standard for evaluation is not whether counsel's advice was, retrospectively, correct, but whether that advice was within the range of competence demanded of attorneys in criminal cases. See Perez v. People, 745 P.2d 650 (Colo.1987).

The supreme court's second rationale was that allowance for harmless error would render meaningless defendant's qualified constitutional right to counsel of choice because there would be no remedy for a deprivation of that right. Anaya v. People, supra, 764 P.2d at 782 ("[T]he right [to choice of counsel] reflects constitutional protection of the defendant's free choice independent of concern for the objective fairness of the proceeding.").

However, constitutional rights are not necessarily rendered meaningless simply because there is no remedy for their deprivation. Rather than rendering the right meaningless, a valid plea of guilty constitutes a forfeiture of the right. A guilty plea waives all nonjurisdictional objections, including fundamental, Sixth Amendment constitutional rights. See Waits v. People, 724 P.2d 1329 (Colo.1986) (Erickson, J., concurring); People v. Lesh, 668 P.2d 1362 (Colo.1983).

Thus, a defendant has no right to raise a constitutional claim after a guilty plea when that claim does not relate directly to the adequacy of the plea:

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary...