People v. Phipps, Court of Appeals No. 15CA0813

• Decision Date: 29 December 2016
• Docket Number: Court of Appeals No. 15CA0813
• Citation: 411 P.3d 1157
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy Scott PHIPPS, Defendant-Appellant.
• Court: Colorado Court of Appeals

411 P.3d 1157

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Randy Scott PHIPPS, Defendant-Appellant.

Court of Appeals No. 15CA0813

Colorado Court of Appeals, Div. VII.

Announced December 29, 2016

As Modified on Denial of Rehearing March 9, 2017

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Randy Scott Phipps, Pro Se

Opinion by JUDGE BERGER

¶ 1 Based on a plea agreement in which many other serious charges were dismissed, defendant, Randy Scott Phipps, pleaded guilty to sexual assault on a child. He was sentenced to an indeterminate prison term of seventeen years to life. Phipps then sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied his motion without holding a hearing.¹

¶ 2 Phipps asserts on appeal that the district court (1) was required to hold a hearing on his motion and (2) erred in rejecting his ineffective assistance of counsel claims. We affirm the district court's order because Phipps' allegations were bare and conclusory in nature, directly refuted by the record, and, even if proven true, would have failed to establish one of the prongs of the test prescribed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I. Relevant Facts and Procedural History

¶ 3 During an investigation to detect child pornography shared over the Internet, the police remotely searched a computer onto which at least two files depicting child pornography had been downloaded. Using that computer's Internet Protocol (IP) address, the police determined that the computer was located in Phipps' home. The police obtained and executed a search warrant of Phipps' home.

¶ 4 Phipps was not home at the time of the search, but an officer spoke with him on the phone during the search and explained why his home was being searched. During that recorded phone call, Phipps admitted that he stored child pornography on his computer and that once the officer searched his computer, "his life was over." The police seized Phipps' computer, on which they found over thirty videos of children engaged in sexual acts.

¶ 5 One of these videos depicted Phipps' stepdaughter when she was approximately eight or nine years old. She was mostly nude, and the video showed Phipps instructing her to use sex toys as well as Phipps using sex toys on her. In her police interview, Phipps' stepdaughter identified herself and Phipps in the video and stated that Phipps had sexually assaulted her numerous times.

¶ 6 Phipps was charged with sexual assault on a child (position of trust—pattern of abuse) under sections 18–3–405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section 18–6–302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement) under section 18–6–403(3)(a), C.R.S. 2016; and sexual exploitation of children (possession) under section 18–6–403(3)(b.5). The court found Phipps indigent and appointed counsel to represent him.

¶ 7 A plea agreement was negotiated and Phipps pleaded guilty to the sexual assault charge. In exchange, the district attorney dismissed the remaining charges and promised that the United States Attorney would not prosecute Phipps on child pornography charges.²

¶ 8 At the sentencing hearing, Phipps took full responsibility for his crimes. He stated that he did not wish to put his family through a "horrific ordeal with a jury trial," and that his "remorse, regrets, shame, despair, sadness, and sorrow cannot be measured."

¶ 9 In his motion for postconviction relief, Phipps made numerous claims of ineffective assistance of counsel. The arguments Phipps renews on appeal are:

• His counsel failed to challenge the legality of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.

• His counsel's decision to waive the preliminary hearing constituted deficient performance.

• His counsel's failure to request a bond reduction constituted deficient performance.

• His counsel's failure to investigate and challenge the prosecution's forensic computer evidence or hire an expert to do so constituted deficient performance.

• His counsel failed to advise him that, as a condition of his parole eligibility, he might be required to reveal past crimes, exposing him to additional criminal charges.

• His counsel failed to advise him that evidence of his crimes might be destroyed after he pleaded guilty.

• His counsel failed to advise him that he might be ordered to pay restitution to his stepdaughter.

• His counsel misadvised him about the minimum amount of prison time he would have to serve before being eligible for parole.

• His counsel misled him with regard to whether he was pleading guilty to a crime of violence.

The district court did not hold a hearing, but concluded that the existing record demonstrated that Phipps' claims failed one or both prongs of Strickland .

II. Unaddressed Arguments

¶ 10 In this court, Phipps repeatedly purports to incorporate arguments made in his Crim. P. 35(c) motion.

¶ 11 Phipps' attempt to incorporate the arguments he made in the district court violates C.A.R. 28(a)(7)(B), which requires appellants to state their "contentions and reasoning, with citations to the authorities and parts of the record on which the appellant relies." "Incorporating by reference or adopting by reference arguments from previous filings is improper because it attempts to shift, from the litigant to the court, the task of locating and synthesizing the relevant facts and arguments." People v. Duran , 2015 COA 141, ¶ 20, 382 P.3d 1237. Such incorporations by reference also circumvent C.A.R. 28(g), which limits the length of briefs. See Castillo v. Koppes–Conway , 148 P.3d 289, 291 (Colo. App. 2006).

¶ 12 Phipps' failure to specifically reassert those arguments in this court constitutes a waiver of those claims. People v. Rodriguez , 914 P.2d 230, 249 (Colo. 1996). Accordingly, we do not address any of the "incorporated by reference" arguments.

III. Ineffective Assistance of Counsel

¶ 13 Phipps argues that if not for the constitutionally deficient conduct of his counsel he would not have pleaded guilty to sexual assault on a child, and he contends that the district court erred in concluding otherwise without holding a hearing.

¶ 14 The United States and Colorado Constitutions guarantee a criminal defendant's right to receive reasonably effective assistance of counsel. U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16 ; Strickland , 466 U.S. at 685–86, 104 S.Ct. 2052 ; People v. Norman , 703 P.2d 1261, 1272 (Colo. 1985). To prevail on an ineffective assistance of counsel claim, the defendant must establish that (1) counsel's performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ; Ardolino v. People , 69 P.3d 73, 76 (Colo. 2003).

¶ 15 To satisfy the prejudice prong in the context of a guilty plea, the defendant must show that there is a reasonable probability that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." People v. Stovall , 2012 COA 7, ¶ 19, 284 P.3d 151 (citation omitted).

¶ 16 In determining whether counsel's performance was deficient, we evaluate the representation from counsel's perspective at the time of the representation, and we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ardolino , 69 P.3d at 76.

¶ 17 To prove deficient performance, the defendant must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Davis v. People , 871 P.2d 769, 772 (Colo. 1994) (citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ); People v. Lopez , 2015 COA 45, ¶ 59, 399 P.3d 129. With regard to trial strategy, defense counsel has final authority to make strategic or tactical decisions, including "what strategy should be employed in the defense of the case." Arko v. People , 183 P.3d 555, 558 (Colo. 2008) (quoting Steward v. People , 179 Colo. 31, 34, 498 P.2d 933, 934 (1972) ).

¶ 18 A district court may deny a postconviction motion without a hearing for a number of reasons. Bare and conclusory allegations are insufficient to entitle a defendant to an evidentiary hearing on his postconviction motion. People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005) (citing Moore v. People , 174 Colo. 570, 572, 485 P.2d 114, 115 (1971) ); see also Duran , ¶ 9.

¶ 19 Denial of the motion without a hearing may also be justified if the record directly refutes the defendant's claims or if the motion, files, and existing record clearly establish that the defendant's allegations, even if proven true, would fail to satisfy one or the other prong of Strickland . Ardolino , 69 P.3d at 77 ; see also Duran , ¶ 9.

¶ 20 We review the denial of a Crim. P. 35(c) motion without a hearing de novo. People v. Gardner , 250 P.3d 1262, 1266 (Colo. App. 2010).

A. Fourth Amendment Challenge to the Remote Search of Phipps' Computer

¶ 21 We first address Phipps' argument that his counsel provided deficient representation when he failed to challenge the legality of the initial, remote search of his computer. The district court rejected this claim, concluding that there was no arguable basis to make such a challenge and that the challenge inevitably would have failed.

¶ 22 The police initially discovered child pornography on Phipps' computer by using LimeWire, which is a "peer-to-peer file sharing application that connects users who wish to share data files with one another." United States v. Stults , 575 F.3d 834, 842 (8th Cir. 2009) (quoting United States v. Lewis , 554 F.3d 208, 211 (1st Cir. 2009) ).³

¶ 23 The Eighth Circuit described the operation of LimeWire software as follows:

When a user wants to download files from other users, he launches LimeWire and inputs a search term or terms. The

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