People v. Miera

• Decision Date: 07 February 2008
• Docket Number: No. 06CA1284.,06CA1284.
• Citation: 183 P.3d 672
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose R. MIERA, Defendant-Appellant.
• Court: Colorado Court of Appeals

183 P.3d 672

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose R. MIERA, Defendant-Appellant.

No. 06CA1284.

Colorado Court of Appeals, Div. III.

February 7, 2008.

Rehearing Denied March 27, 2008.

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Janet T. Kinniry, Gardner, Colorado, for Defendant-Appellant.

Opinion by Judge LOEB.

Defendant, Jose R. Miera, appeals from a trial court order denying his Crim. P. 35(c) motion for postconviction relief. His motion sought relief from the court's judgment of conviction entered upon jury verdicts finding him guilty of multiple counts of sexual assault on a child. He contends he was denied the right to effective assistance of counsel guaranteed by the United States and Colorado Constitutions. We agree and, accordingly, reverse and remand with directions that a new trial be granted.

I. Background

Defendant lived with the victim, M.Q., her brother, and their mother in Alamosa. Defendant was appointed the legal guardian of M.Q. and her brother after their mother's death in 1987, and the children continued to live with defendant thereafter.

Beginning in March 1990, the Alamosa County Department of Social Services suspected defendant of sexually molesting M.Q. Investigators routinely interviewed M.Q. for several months. Throughout these interviews, M.Q. denied that defendant had molested her.

In August 1991, a friend and neighbor of defendant, D.R., was accused of sexually assaulting M.Q. by six eyewitnesses, including M.Q. In early September, social workers resumed asking M.Q. whether defendant had sexually molested her. Within a few days, M.Q. told investigators that both defendant and M.Q.'s brother had been sexually molesting her.

D.R. was arrested in January 1992, and his appointed counsel, Public Defender Manuel Lopez, began filing motions on his behalf shortly after his arrest. In February, D.R. pleaded guilty to sexual assault on M.Q., and his sentencing was scheduled for April 14, 1992.

In March 1992, defendant was charged with sexually assaulting M.Q. While still representing D.R., Lopez entered his appearance as counsel for defendant and began filing motions on his behalf on March 24. When D.R. next appeared in court, he withdrew his guilty plea.

Lopez continued to represent both defendant and D.R. until August 1992, when he withdrew from D.R.'s case for unspecified reasons. Several days after Lopez withdrew, defendant was endorsed as a witness in D.R.'s case. In October, D.R. entered into an agreement with the prosecution under which he would make a videotaped statement against defendant in exchange for dismissal of his case. In February 1993, D.R. was endorsed by the prosecution as a witness in defendant's case.

Defendant's trial took place several months later in September 1993. According to the record, the prosecution advised Lopez shortly before trial that D.R. would not be called to testify. Based on that conversation, which was held off the record, Lopez did not prepare to cross-examine D.R. However, the prosecution called D.R. to testify after Lopez brought his name out at trial through the testimony of a social services caseworker. D.R. testified that he witnessed defendant with his arm around M.Q. and his hand on her breast. Based on this testimony, defendant was convicted of two additional counts of sexual assault. Overall, the jury found defendant guilty of six counts of sexual assault. The trial court sentenced defendant to a total of twenty-six years in the Department of Corrections.

On direct appeal, a division of this court reversed the convictions and sentences based on the two additional counts supported by D.R.'s testimony and affirmed the other four convictions. People v. Miera, (Colo.App. No. 93CA2100, Sept. 5, 1996) (not published pursuant to C.A.R. 35(f)). Certiorari was denied by the supreme court, and the mandate issued in July 1997.

In 2000, defendant filed a Crim. P. 35 motion for postconviction relief. The trial court denied the motion without a hearing, and another division of this court vacated the order denying relief and remanded for an evidentiary hearing on defendant's allegations of ineffective assistance of counsel. People v. Miera, 2004 WL 915102 (Colo.App. No. 03CA0120, Apr. 29, 2004)(not published pursuant to C.A.R. 35(f)).

The trial court held an evidentiary hearing in October 2005. As pertinent here, defendant argued that he was denied effective assistance of counsel on three grounds. First, he argued that his trial counsel, Lopez, had an actual conflict of interest because of his representation of both defendant and D.R. Second, he argued that Lopez provided constitutionally ineffective assistance of counsel when he stipulated to the admission of numerous hearsay statements at trial. Third, he argued that Lopez was ineffective by opening the door to D.R.'s testimony. After the hearing, the court issued a written order denying defendant's request for postconviction relief. Defendant now appeals that order.

II. Conflict of Interest

Defendant contends the trial court erred by denying his Crim. P. 35(c) motion for postconviction relief. Specifically, he claims he was denied effective assistance of counsel throughout the original trial court proceedings because his attorney operated under a conflict of interest. We agree, and thus conclude the trial court erred in denying his Crim. P. 35(c) motion.

"Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L.Rev. 1, 8 (1956)). The gravity of the right to counsel, generated by both a criminal defendant's need for assistance when confronted with the "intricacies of the law and the advocacy of the public prosecutor," United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), and the broader need "to assure fairness in the adversary criminal process," United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), has repeatedly compelled the Supreme Court to reaffirm the well-established principle that the Sixth Amendment right to assistance of counsel is the right to effective assistance of counsel. See, e.g., Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002); Cronic, 466 U.S. at 654-56, 104 S.Ct. 2039; Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("That a person who happens to be a lawyer is present at trial alongside the accused ... is not enough to satisfy the constitutional command."); Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

Generally, to prevail on a claim of ineffective assistance of counsel, the defendant must establish that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense, resulting in 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; Davis v. People, 871 P.2d 769, 772 (Colo.1994)(Strickland test applicable under Colorado Constitution).

However, where a defendant demonstrates that counsel labored under an actual conflict of interest that adversely affected counsel's performance, the defendant is not required to demonstrate a probable prejudicial effect upon the outcome of the trial to prevail on a claim of ineffective assistance of counsel. Mickens, 535 U.S. at 166-67, 122 S.Ct. 1237; Cuyler, 446 U.S. at 348-50, 100 S.Ct. 1708; Dunlap v. People, 173 P.3d 1054, 1073 (Colo.2007); People v. Castro, 657 P.2d 932, 943-44 (Colo.1983); People v. Hodges, 134 P.3d 419, 426 (Colo.App.2005) (citing People v. Kenny, 30 P.3d 734, 745 (Colo.App. 2000)), aff'd, 158 P.3d 922 (Colo.2007).

Under the standard set forth in Cuyler, a defendant is relieved of the need to establish the prejudice prong of the Strickland test because, in cases of conflicting interests, "the evil ... is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Castro, 657 P.2d at 943-44 (quoting Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). Hence, the Cuyler exception to the Strickland standard provides a "needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant's Sixth Amendment right to counsel." Mickens, 535 U.S. at 176, 122 S.Ct. 1237.

The Cuyler standard thus allows a defendant to assert his or her right to counsel without the "onerous burden of having to prove a negative, that is, demonstrating that his counsel improperly refrained from acting in a constitutionally-effective manner." Moss v. United States, 323 F.3d 445, 461 (6th Cir.2003). The standard also precludes reviewing courts from applying rules not "susceptible of intelligent, evenhanded application" that "would require, unlike most cases, unguided speculation." Holloway, 435 U.S. at 490-91, 98 S.Ct. 1173.

The parties disagree on the proper legal standard to be applied to the conflict of interest claim asserted here. The People argue the trial court properly concluded that this is a case of successive rather than concurrent representation and that, subsequent to Mickens, the Cuyler exception no longer applies to the type of successive representation present in this case. Defendant argues that this is a case of both concurrent and successive representation and that the Cuyler standard, rather than the Strickland standard, should be applied to resolve his...