People v. Naranjo, No. 91SC473

Docket NºNo. 91SC473
Citation840 P.2d 319
Case DateOctober 26, 1992
CourtSupreme Court of Colorado

Page 319

840 P.2d 319
The PEOPLE of the State of Colorado, Petitioner,
v.
Sammy NARANJO, Respondent.
No. 91SC473.
Supreme Court of Colorado,
En Banc.
Oct. 26, 1992.
Rehearing Denied Nov. 16, 1992.

Page 320

Stuart A. Van Meveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Eighth Judicial Dist., Fort Collins, for petitioner.

David F. Vela, State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for respondent.

Justice QUINN delivered the Opinion of the Court.

We granted the People's petition for certiorari to review the court of appeals' decision in People v. Naranjo, 821 P.2d 836 (Colo.App.1991), in order to determine whether the defendant, Sammy Naranjo, was deprived of his constitutional right to testify at his 1977 trial due to the failure of his trial attorney to adequately inform him of that right and, if so, whether any such deprivation was subject to the harmless-error rule. In affirming the district court's order granting the defendant's Crim.P. 35(c) motion and awarding him a new trial, the court of appeals concluded that the record supported the district court's determination that the defendant was denied his constitutional right to testify on his own behalf and that such a constitutional deprivation was not subject to harmless-error

Page 321

analysis. Because the court of appeals resolved the defendant's constitutional claim under an incorrect standard, we reverse the judgment and remand the case for further proceedings.

I.

In October 1976 the defendant was charged in the district court of Larimer County with the crimes of first degree kidnapping and first degree sexual assault, both of which occurred on September 25, 1976. An attorney was appointed for the defendant, and the case was tried to a jury in April 1977. The defendant did not testify as a witness at his trial nor did he present any other evidence in his defense. The jury found the defendant guilty on both counts, and the district court sentenced him to concurrent terms of life imprisonment for first degree kidnapping and fifty years for first degree sexual assault. In People v. Naranjo, 200 Colo. 1, 612 P.2d 1099 (1980), we affirmed the defendant's conviction for first degree sexual assault, reversed his conviction for first degree kidnapping, and remanded the case to the district court with directions to enter a judgment and sentence for the lesser included offense of second degree kidnapping. In 1981 the district court resentenced the defendant to an indeterminate term not to exceed ten years for second degree kidnapping.

In February 1985 the defendant, acting pro se, filed a Crim.P. 35(c) motion for postconviction relief. The defendant claimed that, notwithstanding his desire to testify on his own behalf, the trial court failed to obtain a knowing and intelligent waiver of his right to testify and that he also was denied effective assistance of counsel. The district court summarily denied the defendant's motion without a hearing, but the court of appeals vacated the order and directed the district court to appoint counsel and to conduct such further proceedings as may be appropriate under the circumstances. People v. Naranjo, 738 P.2d 407 (Colo.App.1987). In December 1988 the public defender's office, acting on behalf of the defendant, filed a Crim.P. 35(c) motion alleging several grounds for postconviction relief including, as pertinent here, the defendant's claim that his trial attorney did not adequately advise him of his right to testify and that as a result of ineffective assistance of counsel he did not understand and was deprived of his constitutional right to testify on his own behalf at his 1977 trial. 1

At an evidentiary hearing on the Crim.P. 35(c) motion, the defendant testified that at his 1977 trial he did not know that the decision on whether to testify was his to make regardless of his attorney's advice, that he told his court-appointed attorney that he wanted to testify, and that his attorney told him that he should not take the stand. The defendant's court-appointed attorney testified that his usual practice in 1977 was to put the defendant on the stand if the defendant "could help himself" but that he discouraged defendants from testifying if their testimony "would not go to the merits of the case or any lesser included offense that might be possible." Defense counsel also stated that he could not recall specifically whether he advised the defendant that the decision to testify was the defendant's to make, but the attorney did recall that he strongly discouraged the defendant from testifying and could not remember whether the defendant concurred in that advice.

Page 322

At the conclusion of the Crim.P. 35(c) hearing, the district court made the following pertinent findings:

At the original trial, the Defendant was not advised of his right to testify and had no knowledge of it. He was not advised that he could override the advice of his attorney not to testify. Defendant wanted to testify. The denial of his right to testify has never been fully litigated and the proposition has not previously been presented by legal counsel.

The Defendant has only a sixth-grade education and all of his employment has been physical labor. The people with whom he has always associated are Spanish speaking. He experiences difficulty in understanding the English language, especially where it becomes technical and he has no knowledge of legal or appellate principles. Any failure to previously raise the right to testify issue in this case is excusable.

* * * * * *

The evidence establishes by a preponderance that there was no waiver of the right to testify.

On the basis of those findings, the district court concluded that the defendant was denied his fundamental constitutional right to testify on his own behalf during his 1977 trial and that the denial of the right could not be treated as harmless constitutional error.

The People appealed the district court's order to the court of appeals, which affirmed the order on the basis that there was competent evidence to support the district court's resolution of Naranjo's claim and that the denial of an accused's right to testify is not subject to harmless-error analysis. We thereafter granted the People's petition for certiorari.

II.

The gravamen of the defendant's postconviction claim in the district court was that he was denied his constitutional right to testify at his 1977 trial due to the failure of his trial counsel to adequately advise him of that right. In ordering a new trial, both the district court and the court of appeals emphasized that the defendant desired to testify but that his trial attorney's failure to adequately advise him of the right to testify deprived the defendant of the opportunity to make a voluntary, knowing, and intelligent waiver of the right to testify. In order to properly resolve the questions before us, it is necessary to determine the appropriate legal criteria for resolving the defendant's claim.

A.

In 1984 this court decided People v. Curtis, 681 P.2d 504 (Colo.1984). We held in Curtis that an accused's right to testify is such a fundamental right that "the effectiveness of its waiver must be tested by the same constitutional standards applicable to waiver of the right to counsel." Id. at 512. Because of the fundamental character of the right, we outlined specific procedures which trial courts must follow to ensure that an accused has effectively waived the right to testify. These procedures require the trial court to advise the accused on the record and outside the presence of the jury as follows: that he has a right to testify; that if he wishes to testify, no one can prevent him from so doing; that if he testifies he will be subject to cross-examination during which prior felony convictions may be disclosed to the jury as they bear on his credibility; and that he has a right not to testify, and if he so elects the jury may be instructed about his decision to refrain from testifying. Id. at 514-15. We expressly declined in Curtis to apply these procedural requirements retroactively because, in our view, retroactive application "would be a significant burden on the administration of justice." Id. at 517. The defendant in the instant case, therefore, was not entitled to a Curtis advisement at his 1977 trial, nor was the trial court charged with the duty to determine on the record whether the defendant effectively waived his right to testify.

In limiting the procedural protections to prospective application, Curtis emphasized that the prospectivity of the decision should not serve to discharge courts "from their

Page 323

duty to consider whether the waiver of the right to testify was in fact voluntary, knowing and intentional, whatever the state of the record made at trial and whenever the verdict was handed down." Id. Curtis, however, did not formulate the legal norm for resolving a pre-Curtis violation of the right to testify predicated on a deficient waiver. We accordingly must determine what that legal norm should be.

B.

In Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971), which involved an issue of ineffective assistance of counsel, we emphasized that there are three decisions which are ultimately to be made by the accused "after full and careful advice of his lawyer": whether to plead guilty; whether to waive a jury trial; and whether to testify at trial. 173 Colo. at 518, 480 P.2d at 844. We noted that while the right to effective assistance of counsel guarantees an accused the right to adequate advice of defense counsel on these decisions, the accused is not entitled to "an attorney with whose advice he can agree." 173 Colo. at 517, 480 P.2d at 844. We concluded in Martinez that nothing in the record established a violation of the right to effective assistance of counsel. Subsequently, in Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972), a case which also involved an...

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46 practice notes
  • State v. Flynn, Nos. 93-2532-C
    • United States
    • Court of Appeals of Wisconsin
    • March 20, 1995
    ...953 F.2d 1525, 1534 (11th Cir.1992) (en banc ), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82; see also People v. Naranjo, 840 P.2d 319, 323 (Colo.1992); Commissioner of Correction v. Rodriguez, 222 Conn. 469, 610 A.2d 631, 635 (1992). Under Strickland, we need not analyze couns......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...out, "[i]n a Crim. P. 35(c) proceeding, there is a presumption of validity attaching to a judgment of conviction." People v. Naranjo , 840 P.2d 319, 325 (Colo. 1992).¶ 75 The focus of defendant's contention in this case is on whether the record clearly established that he was not entitled t......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...Hagos , ¶ 16, 288 P.3d at 120 (applying a reasonable probability standard), and Garcia , 815 P.2d at 941 (same), with People v. Naranjo , 840 P.2d 319, 325 (Colo. 1992) (holding that the burden to prove prejudice is "by a preponderance of the evidence"). While some divisions of this court h......
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...of the conviction and the defendant bears the burden of proving his claims by a preponderance of the evidence. Id.; People v. Naranjo, 840 P.2d 319, 325 (Colo.1992); Kailey v. Colo. Dept. of Corr., 807 P.2d 563, 567 (Colo. 1991). The trial court that presides over a Crim. P. 35(c) hearing i......
  • Request a trial to view additional results
46 cases
  • State v. Flynn, Nos. 93-2532-C
    • United States
    • Court of Appeals of Wisconsin
    • March 20, 1995
    ...953 F.2d 1525, 1534 (11th Cir.1992) (en banc ), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82; see also People v. Naranjo, 840 P.2d 319, 323 (Colo.1992); Commissioner of Correction v. Rodriguez, 222 Conn. 469, 610 A.2d 631, 635 (1992). Under Strickland, we need not analyze couns......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...out, "[i]n a Crim. P. 35(c) proceeding, there is a presumption of validity attaching to a judgment of conviction." People v. Naranjo , 840 P.2d 319, 325 (Colo. 1992).¶ 75 The focus of defendant's contention in this case is on whether the record clearly established that he was not entitled t......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...Hagos , ¶ 16, 288 P.3d at 120 (applying a reasonable probability standard), and Garcia , 815 P.2d at 941 (same), with People v. Naranjo , 840 P.2d 319, 325 (Colo. 1992) (holding that the burden to prove prejudice is "by a preponderance of the evidence"). While some divisions of this court h......
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...of the conviction and the defendant bears the burden of proving his claims by a preponderance of the evidence. Id.; People v. Naranjo, 840 P.2d 319, 325 (Colo.1992); Kailey v. Colo. Dept. of Corr., 807 P.2d 563, 567 (Colo. 1991). The trial court that presides over a Crim. P. 35(c) hearing i......
  • Request a trial to view additional results

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