People v. Luong
| Decision Date | 11 February 2016 |
| Docket Number | Court of Appeals No. 13CA1727 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Man Hao LUONG, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Springer and Steinberg, P.C., Andrew B. Reid, Denver, Colorado, for Defendant–Appellant.
Opinion by JUDGE NAVARRO
¶ 1 Defendant, Man Hao Luong, appeals the district court's order denying his Crim. P. 35(c)
motion without a hearing. In his motion, Luong alleged that his trial counsel had provided ineffective assistance because counsel did not investigate whether Luong had been denied his Sixth Amendment right to a jury selected from a representative cross-section of the community. He thus presents an alleged violation of the Sixth Amendment's fair cross-section guarantee in the context of an ineffective assistance of counsel claim—an unusual posture that no reported Colorado decision has addressed. Because Luong's allegations did not show that his counsel's performance was deficient under the circumstances, we affirm the denial of the postconviction motion.
¶ 2 Based on acts committed in 2005, Luong was charged with six counts of aggravated robbery; two counts each of second degree kidnapping and first degree burglary; one count each of robbery of an at-risk adult, second degree assault, and theft; and conspiracy to commit multiple offenses. He was also charged with twelve crime of violence sentence enhancers. A jury found Luong guilty of all counts. The trial court sentenced him to ninety-six years in prison.
¶ 3 On direct appeal, a division of this court affirmed in part, reversed in part, and vacated in part the judgment. People v. Luong, (Colo.App. No. 07CA1604, 2011 WL 3612282, Oct. 13, 2011)
(not published pursuant to C.A.R. 35(f) ). As a result, Luong was resentenced to sixty-four years in prison.
¶ 4 Luong then filed a Crim. P. 35(c)
motion for postconviction relief. He alleged that he had received ineffective assistance from his trial counsel because counsel did not investigate whether jurors of Asian ethnicity were systematically or intentionally underrepresented in the 100–person venire from which his jury was selected as well as from other juries in the county over an extended period of time. Relatedly, Luong asserted that the State's destruction of records of the relevant master jury list (also known as the “jury wheel”) and jury panel violated his constitutional rights because the purported destruction prevented him from proving that his counsel's performance had prejudiced him.1 The district court denied the motion.
¶ 5 After Luong filed his notice of appeal, the state court administrator informed him that the records of the jury wheel and jury panel (sometimes called the “jury pool”) for the relevant date had been found. At Luong's request, the administrator in 2014 provided a list of the 324 people who appeared for jury service in Jefferson County on the day of Luong's trial. That list is in the appellate record even though it was not before the postconviction court. Luong moved to remand for consideration of the new information, and his motion was referred to this division. For the reasons set forth below, we deny the motion to remand.
¶ 6 Luong contends that the postconviction court erred by denying his Crim. P. 35(c)
motion without an evidentiary hearing. We do not agree.
¶ 7 We review de novo a district court's summary denial of a Crim. P. 35(c)
motion. People v. Aguilar, 2012 COA 181, ¶ 6, 317 P.3d 1255.
¶ 8 A defendant is entitled to a hearing on a Crim. P. 35(c)
motion if he asserts specific facts that, if true, would provide a basis for relief. White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo. 1988). A district court may deny the motion without a hearing if the claim raises only an issue of law or if the allegations, even if true, do not provide a basis for relief. People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005). A court may also deny, without a hearing, a postconviction motion alleging deficient performance of counsel if the allegations are “merely conclusory, vague, or lacking in detail.” People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007).
¶ 9 A criminal defendant is constitutionally entitled to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
; Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland. First, a defendant must demonstrate that counsel's acts or omissions “fell outside the range of professionally competent assistance[.]” People v. Rodriguez , 914 P.2d 230, 294 (Colo. 1996). Second, a defendant must show that he or she suffered prejudice as a result of counsel's deficient performance, that is, “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Because a defendant must show both deficient performance and prejudice, a court may resolve an ineffective assistance claim solely on the basis that the defendant has failed in either regard. People v. Vieyra, 169 P.3d 205, 209 (Colo. App. 2007)
.
¶ 10 The Sixth Amendment right to an impartial jury guarantees a defendant the right to a jury selected from a representative cross-section of the community. People v. Sepeda, 196 Colo. 13, 18, 581 P.2d 723, 727 (1978)
. A defendant is not entitled, however, to a “jury of any particular composition.” Washington v. People, 186 P.3d 594, 600 (Colo. 2008) (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ). The constitutional guarantee requires only that “jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. (quoting Taylor, 419 U.S. at 538, 95 S.Ct. 692 ).
¶ 11 To establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment's fair cross-section guarantee, a defendant must prove that (1) the group alleged to be excluded is a distinctive group; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)
; Washington, 186 P.3d at 600–01. The systematic exclusion must have “occurred not just occasionally but in every weekly venire for a period [of time].” Washington, 186 P.3d at 601 (quoting Duren, 439 U.S. at 366, 99 S.Ct. 664 ).
¶ 12 A defendant may establish a violation of the Equal Protection Clause by demonstrating that (1) “the venire was selected under a practice providing the opportunity for discrimination” and (2) “members of a cognizable racial group were substantially underrepresented on the venire [.]” People v. Cerrone, 854 P.2d 178, 188 (Colo. 1993)
. In this context, a defendant must prove that intentional discrimination caused underrepresentation of a racial group on the venire. Id.
¶ 13 Luong contends that his trial counsel provided ineffective assistance because counsel failed to investigate whether Asian–Americans were systematically or intentionally underrepresented in the jury wheel, the relevant jury pool, and the venire for his trial. Specifically, Luong contends that the absence of Asian–Americans on the 100–person venire selected for his trial required his counsel to investigate the matter further, given that Asian–Americans represented 2.63% of Jefferson County's population.
¶ 14 Initially, we agree with Luong that his counsel's duty to provide effective assistance (including the duty to investigate) did not end when the trial began. This duty extended to jury voir dire and throughout the trial. See Hutchinson v. People, 742 P.2d 875, 881 (Colo. 1987)
(); Ervin v. State, 423 S.W.3d 789, 793 (Mo. Ct. App. 2013) ().
¶ 15 Viewing Luong's allegations through the lens of Strickland,
the question for us is not whether he could possibly prove a fair cross-section claim or equal protection violation. Rather, the question is whether it was outside the bounds of reasonable professional assistance for his trial counsel not to assert or investigate such claims given what counsel knew at the time. See
Rodriguez, 914 P.2d at 294 () (citation omitted).
¶ 16 In reviewing counsel's performance, we must be “highly deferential” and “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688–89, 104 S.Ct. 2052
. “A particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. at 691, 104 S.Ct. 2052
.
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...Lilly puts it, absolute disparity "understates the disparity" and comparative disparity "overstates the results." See People v. Luong , 378 P.3d 843, 850 (Colo. App. 2016) ("Absolute disparity tends to understate a small group’s underrepresentation on jury panels, while comparative disparit......