People v. Jones, No. 80CA1205

Docket NºNo. 80CA1205
Citation665 P.2d 127
Case DateOctober 21, 1982
CourtCourt of Appeals of Colorado

Page 127

665 P.2d 127
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Dennis Ray JONES, Defendant-Appellant.
No. 80CA1205.
Colorado Court of Appeals,
Div. II.
Oct. 21, 1982.
Rehearing Denied Nov. 12, 1982.
Certiorari Granted May 23, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Allen, Foreman & Mueller, Norman R. Mueller, Mary G. Allen, Denver, for defendant-appellant.

Page 129

PIERCE, Judge.

Defendant, Dennis Ray Jones, was convicted of murder in the first degree, and that conviction was affirmed in People v. Jones, 191 Colo. 110, 551 P.2d 706 (1976). Thereafter, he filed, pro se, a motion to vacate the judgment under Crim.P. 35(b) and (c). The trial court denied this motion, and defendant appeals. We affirm.

First, we address some of the issues raised by Jones through appellate counsel.

I.

Defendant asserts he was denied his Sixth Amendment right to effective assistance of counsel because trial counsel was ignorant of the law, failed to advise him adequately about issues of law during trial, and failed to raise certain issues on his first appeal. The legal test for whether a defendant is deprived of reasonably effective assistance of counsel is whether counsel performed as an effective advocate within the range of competence demanded of attorneys in criminal cases. People v. Johnson, 638 P.2d 61 (Colo.1981). Errorless representation during the course of trial is not the standard applied to determine reasonably effective assistance of counsel. People v. Velasquez, 641 P.2d 943 (Colo.1982). Here, the trial court found trial and appellate counsel performed competently and that the representation defendant received was within constitutional limits. The record supports these findings and therefore we will not disturb that ruling on review. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).

II.

Defendant also argues the trial court erred when it granted his request to proceed pro se during the Crim.P. 35(b) and (c) hearing. We disagree.

The right of the criminally accused to self-representation has been recognized. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980). When confronted with a request for self-representation by a defendant, the

Page 130

duty of the trial court is to ascertain whether the defendant intelligently decided to represent himself with knowledge of the duties and disadvantages of such self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978).

Here, defendant submitted a motion to appear pro se supported by applicable authority. At the hearing, the appointed public defender advised the court of defendant's belief in his own capabilities and firm desire to represent himself. After being completely advised, the trial court permitted defendant to proceed pro se, and ordered appointed counsel to remain as advisory counsel. The record establishes that defendant knowingly, intelligently, and voluntarily relinquished the benefits of counsel in favor of representing himself. Faretta v. California, supra; People v. Lucero, supra.

Defendant extends this argument to the second Crim.P. 35 hearing during which he proceeded pro se also. The record of this particular hearing does not contain the opening remarks and commentary between the court and various parties. Where no transcript of the evidence considered by a lower court is made a part of the record by appellant, and there is no showing to the contrary, we must presume that the findings are supported by the evidence presented to and considered by the court. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972). Hence, we find no error in the trial court's decision to allow defendant to proceed pro se during either of these post-conviction proceedings.

III.

Defendant next contends inadmissible hearsay evidence was received by the trial court and not objected to by his trial counsel, resulting in a denial of his right to confront witnesses testifying against him.

One witness testified the victim said: "I told him [defendant] to get out of here, and he came in and beat me up."...

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12 practice notes
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...the right to override the advice of his counsel not to testify. The issue of waiver of the right to testify also arose in People v. Jones, 665 P.2d 127 (Colo.App.1982). We granted certiorari in these cases, and now adopt the principle set forth by the court of appeals in Curtis. We hold tha......
  • People v. Carter, Court of Appeals No. 12CA0857.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 12, 2015
    ...that numerous errors be committed, not merely alleged." People v. Rivers, 727 P.2d 394, 401 (Colo. App. 1986) (citing People v. Jones, 665 P.2d 127 (Colo. App. 1982) ). However, "[a] conviction will not be reversed if the cumulative effect of any errors did not substantially prejudice the d......
  • People v. Czemerynski, No. 88SA280
    • United States
    • Colorado Supreme Court of Colorado
    • February 12, 1990
    ...the declarant be unavailable as a witness." See Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051 (1911); People v. Jones, 665 P.2d 127 (Colo.Ct.App.1982), aff'd, 681 P.2d 504 On at least one occasion Swenson handed her daughter the phone while the caller was making obscene comm......
  • People v. Allgier, Court of Appeals No. 16CA1801
    • United States
    • Colorado Court of Appeals of Colorado
    • August 23, 2018
    ...to a fair trial. But the doctrine of cumulative error requires that numerous errors be committed, not merely alleged. People v. Jones , 665 P.2d 127 (Colo. App. 1982), aff'd sub nom. People v. Curtis , 681 P.2d 504 (Colo. 1984).¶ 71 We have found only unpreserved errors that were not plain.......
  • Request a trial to view additional results
12 cases
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...the right to override the advice of his counsel not to testify. The issue of waiver of the right to testify also arose in People v. Jones, 665 P.2d 127 (Colo.App.1982). We granted certiorari in these cases, and now adopt the principle set forth by the court of appeals in Curtis. We hold tha......
  • People v. Carter, Court of Appeals No. 12CA0857.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 12, 2015
    ...that numerous errors be committed, not merely alleged." People v. Rivers, 727 P.2d 394, 401 (Colo. App. 1986) (citing People v. Jones, 665 P.2d 127 (Colo. App. 1982) ). However, "[a] conviction will not be reversed if the cumulative effect of any errors did not substantially prejudice the d......
  • People v. Czemerynski, No. 88SA280
    • United States
    • Colorado Supreme Court of Colorado
    • February 12, 1990
    ...the declarant be unavailable as a witness." See Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051 (1911); People v. Jones, 665 P.2d 127 (Colo.Ct.App.1982), aff'd, 681 P.2d 504 On at least one occasion Swenson handed her daughter the phone while the caller was making obscene comm......
  • People v. Allgier, Court of Appeals No. 16CA1801
    • United States
    • Colorado Court of Appeals of Colorado
    • August 23, 2018
    ...to a fair trial. But the doctrine of cumulative error requires that numerous errors be committed, not merely alleged. People v. Jones , 665 P.2d 127 (Colo. App. 1982), aff'd sub nom. People v. Curtis , 681 P.2d 504 (Colo. 1984).¶ 71 We have found only unpreserved errors that were not plain.......
  • Request a trial to view additional results

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