People v. McGlaughlin

Decision Date09 August 2018
Docket Number15CA2008
Citation428 P.3d 691
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason Paul MCGLAUGHLIN, Defendant-Appellant.
CourtColorado Court of Appeals

Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant


¶ 1 Like many states, Colorado permits law students to represent defendants in criminal cases under limited circumstances and subject to specific requirements that must be met by both the law student and the supervising lawyer. C.R.C.P. 205.7.1

¶ 2 After pleading guilty to third degree assault and violation of a protection order, defendant, Jason Paul McGlaughlin, moved to vacate his plea and the resulting convictions, claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel when he was represented only by a law student, not a licensed lawyer, at his plea hearing.

¶ 3 The postconviction court denied McGlaughlin's Crim. P. 35(c) motion without a hearing, concluding that the record disproved McGlaughlin's claim. We disagree with the postconviction court's analysis and disposition and reverse the court's order.

I. Relevant Facts and Procedural History

¶ 4 McGlaughlin was involved in a fight with his ex-girlfriend's new boyfriend. The prosecution charged him with second degree assault (a felony) and a related traffic offense.

¶ 5 Based on McGlaughlin's alleged conduct, his ex-girlfriend obtained a temporary protection order that prohibited McGlaughlin from contacting her. McGlaughlin allegedly violated the order twice, which resulted in the filing of two additional misdemeanor charges.

¶ 6 McGlaughlin resolved all these charges by pleading guilty to one count of third degree assault (a misdemeanor) and to one count of violating a protection order (also a misdemeanor). At his plea hearing, McGlaughlin was represented by a law student extern practicing under C.R.C.P. 205.7.2 The court accepted McGlaughlin's plea and sentenced him to two years of probation.

¶ 7 McGlaughlin alleged the following material facts in his Crim. P. 35(c) motion, which sought to vacate his plea and conviction:

• The deputy public defender who was assigned to supervise the law student was not present in the courtroom when he pleaded guilty.
He was unaware, until after the plea hearing, that the student was not, in fact, a licensed lawyer.
• While he pleaded guilty only to misdemeanors, he was charged with a felony, and law students are prohibited from representing defendants in felony proceedings.
He never consented, in writing or otherwise, to representation by a law student.
• The law student did not make a record during the plea hearing that she was an extern, and the court was not aware that she was one.

¶ 8 The postconviction court denied his motion without a hearing, concluding that (1) the record established that the deputy public defender was, in fact, present at the plea hearing; (2) McGlaughlin was adequately represented by counsel at all critical stages of the proceedings; (3) the record established that McGlaughlin was not entitled to relief on the basis of his claim of ineffective assistance of counsel; and (4) McGlaughlin's plea was entered knowingly, intelligently, and voluntarily.

II. The Postconviction Court Erred by Denying McGlaughlin's Claim Without a Hearing

¶ 9 McGlaughlin argues that his plea was constitutionally invalid under the Sixth Amendment because he was not represented by a licensed lawyer at a critical stage of his criminal case. He also asserts that the assistance that he received from the law student who represented him was ineffective because the deputy public defender did not adequately supervise her.

A. Colorado's Law Student Practice Rule

¶ 10 As relevant to our analysis, C.R.C.P. 205.7 imposes the following conditions and limitations on the representation of criminal defendants by law students:

They cannot represent a defendant who "has been charged with a felony." C.R.C.P. 205.7(2)(a)(i).
The defendant must consent, in writing, to the law student's representation. C.R.C.P. 205.7(2)(a)(i)(B).
The defendant's written consent "shall be made in the record of the case and shall be brought to the attention of the judge of the court." C.R.C.P. 205.7(2)(a)(ii).
• When representing the office of the state public defender and its clients, the law student must be "under the supervision of the public defender or one of his or her deputies." C.R.C.P. 205.7(2)(a)(i)(B).
• The supervising lawyer must sign and approve all pleadings, briefs, and other legal documents. C.R.C.P. 205.7(2)(a)(iii).3
B. The Effect of a Violation of C.R.C.P. 205.7

¶ 11 There is no serious disagreement that a number of these conditions were violated in this case. Indeed, the postconviction court so found. The question we must decide, then, is the effect, if any, of those violations on McGlaughlin's guilty pleas and resulting convictions.4

¶ 12 A criminal defendant has a Sixth Amendment right to the assistance of counsel at all critical stages of his criminal case. U.S. Const. amend. VI ; Wheat v. United States , 486 U.S. 153, 158-59, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) ; People v. Arguello , 772 P.2d 87, 92 (Colo. 1989). "[T]he acceptance of a plea offer and the entry of a guilty plea is a critical stage, creating an entitlement to counsel." Carmichael v. People , 206 P.3d 800, 805 (Colo. 2009). The interpretation and application of the Sixth Amendment is a matter of federal, not Colorado, law. Cmty. Hosp. v. Fail , 969 P.2d 667, 672 (Colo. 1998).

¶ 13 The licensure of lawyers, however, is a matter of state law. People v. Coria , 937 P.2d 386, 389 (Colo. 1997). The Colorado Supreme Court has the "sole authority to license attorneys ... and to prescribe the rules and circumstances under which a person may appear as counsel in Colorado courts." Id. Thus, conceivably, the supreme court could, as a matter of state law, authorize law students to engage in the plenary practice of law. We need not address any Sixth Amendment ramifications of doing so, because the supreme court has refused to exercise any such authority.

¶ 14 In Coria , the court rejected the argument that law students are the equivalent of licensed lawyers when they practice under C.R.C.P. 205.7. Id. There, the defendant argued that his Sixth Amendment rights were violated when the trial court refused him his counsel of choice — a law student extern. Id. The supreme court held that the defendant's Sixth Amendment rights were not violated because "the law student intern was neither a deputy public defender nor a licensed Colorado practitioner. Defendants do not have a right under the Sixth Amendment to be represented by unlicensed persons. '[A]n advocate who is not a member of the bar may not represent clients ... in court.' " Id. (quoting Wheat , 486 U.S. at 159, 108 S.Ct. 1692 ). It follows that a law student is an "unlicensed person[ ]," not a licensed lawyer. Id.

1. The Supervising Lawyer's Presence

¶ 15 C.R.C.P. 205.7 does not explicitly require the presence of the supervising lawyer in the courtroom during critical stages of criminal cases, unlike the rules of virtually every other state that authorizes the limited practice of law by law students. See, e.g. , Ill. Sup. Ct. R. 711(c)(2)(iii) (stating that a law student may participate in criminal proceedings "as an assistant of the supervising member of the bar, who shall be present and responsible for the conduct of the proceedings"); Miss. Code Ann. § 73-3-207(e) (West 2017) ("Law students may appear and participate in trials and hearings in courts if the supervising attorney or clinical teacher is present and supervising the student."); Wash. Admission & Practice R. 9 (detailing the activities a law student may do without the presence of the supervising lawyer and those where the supervising lawyer must be present).

¶ 16 The Sixth Amendment, however, requires that a defendant have a licensed lawyer at the critical stages of his criminal case, Wheat , 486 U.S. at 158-59, 108 S.Ct. 1692, and, as noted, the Colorado Supreme Court has held that law students are not licensed lawyers, Coria , 937 P.2d at 389. Thus, the Sixth Amendment requires that a licensed lawyer be present in the courtroom when a law student represents a criminal defendant during a critical stage of his criminal case.

¶ 17 If the supervising lawyer is not in the courtroom during those critical stages, no licensed lawyer is present, and the defendant is denied his constitutional right to counsel guaranteed by the Sixth Amendment. Such a complete deprivation of counsel is a structural error, requiring reversal without regard to any showing of prejudice. United States v. Cronic , 466 U.S. 648, 659 n.25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; Hagos v. People , 2012 CO 63, ¶ 10, 288 P.3d 116.

2. Other Violations of C.R.C.P. 205.7

¶ 18 Having determined that it is a violation of C.R.C.P. 205.7 for the supervising lawyer not to be present during critical stages of a criminal case, and that such a violation constitutes structural error, we now turn to the question of how to evaluate other possible violations of C.R.C.P. 205.7. No Colorado appellate case has addressed this question; however, a number of other states (applying similar statutes or rules) have.

¶ 19 One line of cases holds that even if a licensed lawyer appears at the proceeding, the substantial involvement by a law student (such as the examination of witnesses), without the client's consent to representation by the law student, is a structural error. See People v. Miller , 89 Cal.App.3d Supp. 14, 152 Cal.Rptr. 707, 709 (1979) ; In Interest of C.B. , 546 So.2d 447, 448 (Fla. Dist. Ct. App. 1989) ; see also In re Denzel W. , 237 Ill.2d 285, 341 Ill.Dec. 460, 930 N.E.2d 974, 986 (2010) (Freeman, J., dissenting).5

¶ 20 This conclusion is premised on the...

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3 cases
  • People v. Houser
    • United States
    • Colorado Court of Appeals
    • August 27, 2020 novo a postconviction court's denial of a Crim. P. 35(c) motion without a hearing." People v. McGlaughlin , 2018 COA 114, ¶ 25, 428 P.3d 691, 697.B. The Failure to Raise Certain Novel Legal Arguments Did Not Render Houser's Counsel Ineffective¶ 44 Houser contends that his counsel was ine......
  • People v. Houser
    • United States
    • Colorado Court of Appeals
    • May 7, 2020 novo a postconviction court's denial of a Crim. P. 35(c) motion without a hearing." People v. McGlaughlin, 2018 COA 114, ¶ 25, 428 P.3d 691, 697.B. The Failure to Raise Novel Legal Arguments Did Not RenderHouser's Counsel Ineffective¶ 40 Houser contends that his counsel was ineffective b......
  • In re Tibbetts
    • United States
    • Colorado Court of Appeals
    • August 9, 2018
    ... ... See People v. Lockhart , 699 P.2d 1332, 1336 (Colo. 1985) (party may not be held in contempt for refusing to do that which he is unable to do); cf. In re ... ...

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