People v. Johnson

• Decision Date: 06 January 2022
• Docket Number: Court of Appeals No. 19CA1713
• Citation: 507 P.3d 1072,2022 COA 2
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shane JOHNSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

507 P.3d 1072

2022 COA 2

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Shane JOHNSON, Defendant-Appellant.

Court of Appeals No. 19CA1713

Colorado Court of Appeals, Division A.

Announced January 6, 2022

Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Defendant, Shane Johnson, appeals the postconviction court's order denying his ineffective assistance of trial counsel claim based on his attorney's adherence to his instruction not to mount a defense. Although our reasoning differs from that of the postconviction court, we conclude that the postconviction court properly denied Johnson's ineffective assistance of counsel claim because (1) there was no suggestion that Johnson was incompetent or that his decision to forgo a defense was not voluntary and knowing and (2) he explicitly and unambiguously instructed trial counsel not to mount a defense.

I. Relevant Facts and Procedural History

A. Felony Escape Case

¶ 2 The prosecution presented evidence that, while housed at the Mesa County jail awaiting sentencing on felony charges, Johnson escaped from the facility with his wife's assistance. Johnson and his wife then fled to Mexico. They were apprehended about a year later and Johnson was charged with felony escape.¹

¶ 3 Dissatisfied with the Department of Corrections’ (DOC) alleged interference with his ability to communicate with counsel, Johnson asked, pro se, that the charges be dismissed. Later, Johnson indicated, through counsel, that he wanted to represent himself. When the court refused to dismiss, Johnson asked for a continuance so that he could locate a witness who allegedly would testify that Johnson was intoxicated when he escaped, thereby negating the requisite mental state for the escape charge. The court denied that request for a continuance and Johnson's renewed motion to continue the trial — reasserting the communication difficulties and the need to locate the witness — made on the first day of trial.

¶ 4 A frustrated Johnson instructed his counsel not to mount a defense. Counsel requested, and was granted, a closed session with the court. In that session, the court received assurances from Johnson that he made his decision voluntarily and knowingly and with counsel's advice about the consequences of his decision. Johnson also affirmed he wanted counsel to continue on the case. Significantly, there is no suggestion in the record that Johnson was not competent to make the decision. At no time did Johnson's counsel suggest he lacked that competence.

¶ 5 Trial proceeded, but Johnson's counsel did not participate in voir dire, did not give an opening statement, and did not cross-examine witnesses. The prosecution presented evidence that, as he awaited sentencing on other convictions, Johnson used bed sheets to lower himself from the window of the detention facility and then used a hacksaw to cut the fence surrounding the facility. Video footage confirmed some of this evidence. Johnson's wife also testified that she picked up Johnson from the jail, as they had previously arranged, before they fled to Mexico.

B. Direct Appeal

¶ 6 On direct appeal, Johnson argued that the trial court erred by denying his motion to dismiss the escape charge because the DOC failed to promptly inform him of the detainer lodged against him. See People v. Johnson , (Colo. App. No. 11CA2219, Oct. 16, 2014) (not published pursuant to C.A.R. 35(f) ). In that appeal, Johnson attempted to raise ineffective assistance of counsel claims based on counsel's alleged failure to investigate his case and failure to communicate with him. The division affirmed the trial court's order denying his motion to dismiss and declined to address his ineffective assistance of counsel claims because a factual record had yet to be developed. Id.

C. Postconviction Proceeding

¶ 7 Johnson moved for postconviction relief under Crim. P. 35(c), alleging that trial counsel provided ineffective assistance by failing to subject the prosecution's case to meaningful adversarial testing and that, under United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), prejudice was presumed.² The prosecution responded that Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — requiring a defendant to prove there is a reasonable probability that, but for his attorney's deficient performance, the result of the proceeding would have been different — provided the operative legal framework and that, given the evidence presented at trial, Johnson could not establish prejudice.

¶ 8 The postconviction court held an evidentiary hearing on Johnson's ineffective assistance of counsel claim. Having considered the evidence and arguments presented, the postconviction court denied Johnson's ineffective assistance of counsel claim. While it assumed that counsel was ineffective, the court declined to apply Cronic and concluded that Johnson had not proved prejudice as required by Strickland .

II. Standard of Review and Legal Principles

A. Standard of Review

¶ 9 A claim of ineffective assistance of counsel presents a mixed question of fact and law. Dunlap v. People , 173 P.3d 1054, 1063 (Colo. 2007) ; People v. Stovall , 2012 COA 7M, ¶ 18, 284 P.3d 151. Though we defer to the trial court's findings of fact if they are supported by the record, we review the court's legal conclusions de novo. Dunlap , 173 P.3d at 1063.

¶ 10 Like a waiver of counsel or the denial of the right to present a defense, a defendant's decision to forgo a defense presents a mixed question of fact and law. See People v. Bergerud , 223 P.3d 686, 693 (Colo. 2010) (waiver of counsel); Bernal v. People , 44 P.3d 184, 198 (Colo. 2002) (right to present a defense); see also People v. Blehm , 983 P.2d 779, 792 & n.9 (Colo. 1999) (waiver of the right to testify at trial).

B. Decision to Defend: Is it Counsel's or Defendant's to Make?

¶ 11 A criminal defendant has the right to make certain key decisions — if they are made voluntarily, intelligently, and knowingly — including whether to represent himself. Colo. Const. art. II, § 16. Indeed, some decisions are deemed "fundamental" — such as a decision whether to plead guilty or to appeal — where they relate directly to the objectives of the representation. Bergerud , 223 P.3d at 693-94 (decisions such as whether to plead guilty, testify, or waive a jury trial are so fundamental, they must be made by a defendant himself); see also Crim. P. 44(a) ("No lawyer need be appointed for a defendant who, after being advised, with full knowledge of his rights thereto, elects to proceed without counsel."); Colo. RPC 1.2(a) (a lawyer must abide by a client's decisions concerning the objectives of representation).

¶ 12 As we understand it, "objectives of the representation" means the client's goal in the case. McCoy v. Louisiana , 584 U.S. ––––, ––––, 138 S. Ct. 1500, 1505, 200 L.Ed.2d 821 (2018) (recognizing that "it is the Defendant's prerogative, not counsel's, to decide on the objective of his defense"); 584 U.S. at ––––, 138 S. Ct. at 1508 ("Autonomy to define that the objective of the defense is to assert innocence belongs in this latter category.... These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are."). For example, while the accused should receive full advice before entering a guilty plea, the defendant himself must ultimately make the decision. The lawyer can, and should, inform the client of the likely consequences of a plea decision, but only the defendant will bear those consequences or accept the ramifications of going to trial.

¶ 13 Other fundamental decisions, such as whether to forgo assistance of counsel, to waive a jury trial, or to testify on one's own behalf, sound like strategic decisions because they relate to the means the defense invokes in seeking the primary object of the representation — namely, a favorable end result. But these decisions are so personal to the fate of an accused that they are as compelling as deciding the objectives of the representation. As the United States Supreme Court explained in Faretta v. California , 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1970), "although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ " Id. (quoting Illinois v. Allen , 397 U.S. 337, 350-51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)); see also Bergerud , 223 P.3d at 693 (if Bergerud's attorneys had prevented him from making fundamental choices, his choice between proceeding pro se and continuing with counsel would have been "constitutionally offensive"); People v. Romero , 694 P.2d 1256, 1264 (Colo. 1985) (because the right of self-representation furthers the basic value of personal autonomy, it is the defendant who must decide whether it is to his advantage to have counsel in his particular case).

¶ 14 As relevant here, while the United States Supreme Court has recognized that a defendant has a right to present a defense, Crane v. Kentucky , 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), it has not said whether a defendant's right to autonomy includes a right to forgo a defense. Compare Wainwright v. Sykes , 433 U.S. 72, 93, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring) (noting that counsel has "ultimate responsibility" in determining "what defenses to develop"), with Jones v. Barnes , 463 U.S. 745, 759, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (Brennan, J., dissenting) (suggesting that a defendant would have the right to insist that his counsel forgo other strategies more likely to produce a dismissal and rely exclusively on a claim of innocence).

¶ 15 In...