People v. Sherman, No. 04CA2424.

Docket NºNo. 04CA2424.
Citation172 P.3d 911
Case DateNovember 16, 2006
CourtCourt of Appeals of Colorado
172 P.3d 911
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
John P. SHERMAN, Defendant-Appellant.
No. 04CA2424.
Colorado Court of Appeals, Div. I.
November 16, 2006.
Rehearing Denied March 15, 2007.

[172 P.3d 912]

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

John P. Sherman, Pro Se.

Opinion by Judge BERNARD.


Defendant, John P. Sherman, appeals the trial court order denying his Crim. P. 35(c) motion. We affirm.

Defendant was convicted of first degree murder and sentenced to life in prison with the possibility of parole. A division of this court affirmed the judgment of conviction on direct appeal. People v. Sherman, (Colo. App. No. 87CA1181, Feb. 15, 1990)(not published pursuant to C.A.R. 35(f)). Seventeen years after he was convicted, defendant filed a motion for postconviction relief under Crim. P. 35(c). This motion was not barred by the statute of limitations upon collateral attacks because defendant had been convicted of a class one felony. See § 16-5-402(1),

172 P.3d 913

C.R.S.2006. The trial court denied defendant's motion without a hearing. This appeal followed.

I. Ineffective Assistance of Counsel

Defendant contends the trial court erred in concluding defense counsel's failure to explore the option of a plea bargain did not constitute ineffective assistance of counsel. We disagree.

To establish a claim for ineffective assistance of counsel, a defendant must show counsel's performance was outside the range of professionally competent assistance and there is a reasonable probability that, but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Davis v. People, 871 P.2d 769 (Colo.1994).

When evaluating a defendant's claim of ineffective assistance based on defense counsel's omissions in advising him, the court must judge the reasonableness of counsel's conduct on the basis of the factual circumstances of the particular case, viewed in light of the prevailing standards of minimally acceptable professional conduct. People v. Williams, 908 P.2d 1157 (Colo.App.1995).

Defense counsel's failure to convey an actual plea offer constitutes deficient performance even if the defendant otherwise receives a fair trial. People v. Perry, 68 P.3d 472 (Colo.App.2002). However, we are unaware of any authority in Colorado that would suggest defense counsel has a duty to initiate plea negotiations.

Authority in other jurisdictions indicates that although defense counsel does not have a duty to initiate plea negotiations, under certain circumstances the failure to do so could constitute ineffective assistance of counsel. See Hawkman v. Parratt, 661 F.2d 1161 (8th Cir.1981); United States v. Turchi, 645 F.Supp. 558 (E.D.Pa.1986), aff'd, 815 F.2d 696 (3d Cir.1987)(unpublished table decision); People v. Brown, 177 Cal.App.3d 537, 223 Cal.Rptr. 66 (1986); Avans v. State, 251 Ga.App. 575, 554 S.E.2d 766 (2001); People v. Palmer, 162 Ill.2d 465, 205 Ill.Dec. 506, 643 N.E.2d 797 (1994); State v. Holm, 91 Wash. App. 429, 957 P.2d 1278 (1998); see also Gregory G. Sarno, Annotation, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Plea Bargaining, 8 A.L.R.4th 660 § 4 (1981).

We concur with these authorities and conclude the proper question under Strickland is whether, in light of the particular facts and circumstances of the case, defense counsel's failure to initiate plea negotiations fell below an objective standard of reasonableness. See People v. Brown, supra; State v. Holm, supra.

In United States v. Turchi, supra, the court held defense counsel's failure to initiate plea negotiations did not constitute deficient performance where the defendant maintained his innocence and expressly denied involvement in the crime, and counsel also believed the defendant was innocent. See also Dwyer v. Comm'r of Corr., 69 Conn.App. 551, 796 A.2d 1212 (2002)(defense counsel was not ineffective for failing to inform defendant state was willing to engage in plea negotiations where defendant was adamant that he wished to go to trial and maintained his innocence); State v. Simmons, 5 P.3d 1228 (Utah Ct.App.2000) (finding no ineffective assistance of counsel where it was unclear whether defense counsel discussed plea negotiations with defendant but defendant maintained his innocence).

In this case, although defendant now emphasizes the strength of the evidence against him, he adamantly maintained his innocence before and after trial. Prior to sentencing, defense counsel wrote a letter to the probation department asserting his belief in defendant's innocence and recounting the numerous alibi witnesses who, according to the letter, thoroughly and consistently confirmed defendant's account of the events. In an affidavit submitted in this postconviction proceeding, defense counsel wrote defendant insisted he was innocent throughout counsel's representation and was not interested in any disposition short of dismissal of the charges. Defendant's case is, therefore, strikingly similar to the facts discussed in United States v. Turchi, supra; Dwyer v. Commissioner of

172 P.3d 914

Correction, supra; and State v. Simmons, supra.

Under these circumstances, we conclude defense counsel's failure to explore the option of a plea bargain did not constitute deficient performance.

As an alternative basis for its ruling, the trial court found defendant failed to show he was prejudiced by his counsel's actions. We agree there is evidence in the record to support this finding.

In evaluating such a claim, a trial court should consider whether a defendant has shown a reasonable probability the prosecution would have made an offer, the defendant would have accepted it, and the trial court would have approved it. United States v. Boone, 62 F.3d 323 (10th Cir.1995); cf. People v. Perry, supra.

Here, defendant's present assertion he would have accepted a plea offer is contradicted by evidence in existence at the time of his trial. Defendant's pretrial statements about his innocence and his counsel's posttrial letter to the probation department offering counsel's opinion of defendant's innocence indicate it is unclear whether defendant would have accepted any proposed plea disposition. His counsel's recent affidavit provides further support for this conclusion. Thus, seventeen years after defendant's conviction, it would be speculation to conclude there is a reasonable possibility defendant would have accepted a plea bargain if one had been offered shortly before his trial. See Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.1986) ("we seriously doubt . . . [defendant's] after-the-fact testimony regarding [his wish to accept a plea disposition] in and of itself would be sufficient to establish that prior to trial, but for [his attorney's] actions, there was a reasonable probability he would have accepted the plea agreement"); People v. Palmer, supra (rejecting ineffective assistance claim for defense counsel's failure to initiate plea negotiations as too speculative to establish prejudice); Ryan v. Palmateer, 338 Or. 278, 108 P.3d 1127 (2005)(defendant's bare assertion he would have accepted a favorable plea agreement was insufficient to carry his burden of proving that defense counsel failed to provide adequate representation).

Hence, the trial court correctly concluded defense counsel's failure to initiate plea negotiations did not constitute ineffective assistance of counsel.

II. Findings of Fact

Defendant contends the trial court did not make proper findings of fact regarding his allegations of ineffective assistance of counsel. We disagree.

The trial court is bound to determine the issues and make findings of fact and conclusions of law when ruling on a defendant's motion for postconviction relief, Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971), although failure to do so may be harmless error. People v. Russell, 36 P.3d 92 (Colo. App.2001).

In this case, the trial court issued a written order denying defendant's Crim. P. 35(c) motion. The court set forth the Strickland standard for ineffective assistance of counsel, noted the affidavits of defendant and defense counsel, considered the arguments of defendant and the People, and ultimately concluded defendant's position was unpersuasive.

Thus, we conclude the trial court made sufficient findings of fact and conclusions of law in ruling on defendant's motion.

III. Jury Instruction

Defendant contends the trial court erred in concluding his allegation of instructional error did not state a claim cognizable under Crim. P. 35(c). We disagree.

A. Abuse of Process

Defendant...

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10 practice notes
  • People in Interest of T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ...173 P.3d at 1062. But below, the prosecution did not raise abuse of process. Thus, it is not available here. See People v. Sherman, 172 P.3d 911, 915 (Colo. App. 2006) ("In this case, the People did not plead or prove an abuse of process in the trial court. Hence, this affirmative defense i......
  • Commonwealth v. Marinho, SJC–11058.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 14, 2013
    ...defense counsel has a justifiable explanation for making the strategic decision not to explore a plea deal. See, e.g., People v. Sherman, 172 P.3d 911, 913 (Colo.App.2006); People v. Palmer, 162 Ill.2d 465, 478–479, 205 Ill.Dec. 506, 643 N.E.2d 797 (1994), cert. denied, 514 U.S. 1086, 115 S......
  • People ex rel. T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ..., 173 P.3d at 1062. But below, the prosecution did not raise abuse of process. Thus, it is not available here. See People v. Sherman , 172 P.3d 911, 915 (Colo. App. 2006) ("In this case, the People did not plead or prove an abuse of process in the trial court. Hence, this affirmative defens......
  • Lebere v. Abbott, No. 11–1090.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 18, 2013
    ...People ex rel. Wyse v. Dist. Court In and For Twentieth Judicial Dist., 180 Colo. 88, 503 P.2d 154, 156 (1972); People v. Sherman, 172 P.3d 911, 915 (Colo.Ct.App.2006); Johnson v. State, No. 02C01–9111–CR–00237, 1994 WL 90483, at *13 & n. 4 (Tenn.Crim.App. Mar. 23, 1994) (unpublished); Gary......
  • Request a trial to view additional results
10 cases
  • People in Interest of T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ...173 P.3d at 1062. But below, the prosecution did not raise abuse of process. Thus, it is not available here. See People v. Sherman, 172 P.3d 911, 915 (Colo. App. 2006) ("In this case, the People did not plead or prove an abuse of process in the trial court. Hence, this affirmative defense i......
  • Commonwealth v. Marinho, SJC–11058.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 14, 2013
    ...defense counsel has a justifiable explanation for making the strategic decision not to explore a plea deal. See, e.g., People v. Sherman, 172 P.3d 911, 913 (Colo.App.2006); People v. Palmer, 162 Ill.2d 465, 478–479, 205 Ill.Dec. 506, 643 N.E.2d 797 (1994), cert. denied, 514 U.S. 1086, 115 S......
  • People ex rel. T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ..., 173 P.3d at 1062. But below, the prosecution did not raise abuse of process. Thus, it is not available here. See People v. Sherman , 172 P.3d 911, 915 (Colo. App. 2006) ("In this case, the People did not plead or prove an abuse of process in the trial court. Hence, this affirmative defens......
  • Lebere v. Abbott, No. 11–1090.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 18, 2013
    ...People ex rel. Wyse v. Dist. Court In and For Twentieth Judicial Dist., 180 Colo. 88, 503 P.2d 154, 156 (1972); People v. Sherman, 172 P.3d 911, 915 (Colo.Ct.App.2006); Johnson v. State, No. 02C01–9111–CR–00237, 1994 WL 90483, at *13 & n. 4 (Tenn.Crim.App. Mar. 23, 1994) (unpublished); Gary......
  • Request a trial to view additional results

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