People v. Silva

• Decision Date: 02 June 2005
• Docket Number: No. 04CA0661.,04CA0661.
• Citation: 131 P.3d 1082
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher SILVA, Defendant-Appellant.
• Court: Colorado Court of Appeals

131 P.3d 1082

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher SILVA, Defendant-Appellant.

No. 04CA0661.

Colorado Court of Appeals, Div. IV.

June 2, 2005.

Rehearing Denied July 7, 2005.^*

Certiorari Granted April 17, 2006.^**

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Christopher Silva, Defendant-Appellant, pro se.

WEBB, J.

Defendant, Christopher Silva, appeals the trial court order denying his second Crim. P. 35(c) motion for postconviction relief. We affirm in part and remand for further proceedings.

Defendant's conviction was affirmed on direct appeal, People v. Silva, (Colo.App. No. 98CA1061, Oct. 14, 1999) (not published pursuant to C.A.R. 35(f)), and the mandate issued on November 20, 2000. He then filed a Crim. P. 35(c) motion for postconviction relief alleging ineffective assistance of trial counsel. After appointing counsel and holding a hearing, the trial court denied defendant's motion, and a division of this court affirmed. People v. Silva, (Colo.App. No. 02CA0977, May 8, 2003), 2003 WL 21029168 (not published pursuant to C.A.R. 35(f)).

In December 2003, defendant filed the present postconviction motion, in which he argued that: (1) his postconviction counsel rendered ineffective assistance and suffered from a conflict of interest; (2) on direct appeal his appellate counsel rendered ineffective assistance; (3) § 18-1.3-803(4)(b), C.R.S. 2004 (formerly § 16-13-103(4)(b)), was unconstitutional as applied to him because the trial court, not a jury, determined that he was a habitual criminal in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (4) his habitual criminal convictions were unconstitutional because the trial court did not advise him regarding his right to testify at those proceedings; and (5) his forty-eight-year sentence was unconstitutionally disproportionate.

The trial court summarily denied the motion "for the reasons given by the People in their Response," but without making its own findings of fact and conclusions of law.

I.

Defendant first contends the court erred in adopting the People's position that his motion was untimely. We disagree, except as to his claims of ineffective assistance and conflict of interest concerning postconviction counsel.

Section 16-5-402(1), C.R.S.2004, provides that claims for postconviction relief in cases other than those involving class one felonies must be filed within three years of the date the conviction becomes final, unless the defendant can establish justifiable excuse or excusable neglect for the late filing. See § 16-5-402(2)(d), C.R.S.2004. Here, the mandate in defendant's direct appeal issued on November 20, 2000, the time limitation expired on November 20, 2003, and defendant filed the present motion on December 22, 2003.

Defendant argued that justifiable excuse or excusable neglect existed for the late filing only on the basis that he had "appealed the denial of his first application for postconviction relief, thus transferring jurisdiction to the Colorado Court of Appeals. Hence [the postconviction court] was without jurisdiction to hear his second motion ... until jurisdiction returned to [the postconviction] court." We may affirm based on this argument even though the postconviction court did not specifically address it in its order. See People v. Eppens, 979 P.2d 14 (Colo.1999).

"[N]either the timely commencement of a collateral attack, nor the pendency of an appeal from the denial of Crim. P. 35(c) relief, tolls the limitation period with respect to later asserted postconviction claims." People v. Clouse, 74 P.3d 336, 339 (Colo.App. 2002) (citing People v. Ambos, 51 P.3d 1070, 1072 (Colo.App.2002)). Thus, defendant's assertion that he could not file a second motion until the first postconviction proceedings were concluded fails to establish justifiable excuse or excusable neglect.

Therefore, because the time bar in § 16-5-402(1) was not tolled during the litigation of defendant's first postconviction relief motion, his second motion was untimely as to all claims except those involving postconviction counsel's alleged ineffectiveness and conflict of interest.

II.

Defendant next contends the trial court should have held a hearing on his claim of justifiable excuse or excusable neglect. We conclude that a remand for further proceedings is required, but only as to the conflict of interest claim.

In the present motion, defendant asserted that his postconviction counsel was ineffective by failing to call certain witnesses. Further, he asserted that postconviction counsel, a deputy public defender, had a conflict of interest because defendant had alleged ineffective assistance against another deputy public defender, now postconviction counsel's superior, who had briefly represented defendant before appointment of alternative defense counsel for the trial. On this basis, defendant argued justifiable excuse or excusable neglect.

A.

In People v. Hickey, 914 P.2d 377 (Colo. App.1995), and later cases, several divisions of this court have held that a defendant has a right to raise ineffective assistance of prior postconviction counsel in a second Crim. P. 35(c) motion. See, e.g., People v. Clouse, supra; People v. Fitzgerald, 973 P.2d 708, 712 (Colo.App.1998).

Assuming, without deciding, that such a motion is proper, it is generally not considered successive to the defendant's first postconviction motion. People v. Russell, 36 P.3d 92 (Colo.App.2001). However, § 16-5-402(1) does not provide for additional time to complete postconviction proceedings, and postconviction proceedings will often exceed the limitations period as measured from the date of conviction. Hence, a facially untimely ineffective assistance of postconviction counsel claim should be evaluated for justifiable excuse or excusable neglect. This inquiry begins with the premise that such claims cannot be asserted before the first postconviction proceedings and any appeal have ended. People v. Clouse, supra.

Here, defendant's claims of ineffective assistance and conflict of interest against his postconviction counsel have not been evaluated for justifiable excuse or excusable neglect. In addition, the People's Response, relied on by the postconviction court in its ruling, neither directly addressed the merits of defendant's ineffective postconviction counsel claim nor contained proposed findings of fact and conclusions of law that could have been adopted by the trial court in denying defendant's Crim. P. 35(c) motion. See People v. Breaman, 939 P.2d 1348 (Colo.1997) (in all postconviction cases, regardless whether a hearing is required, the court shall decide the issues and make findings of fact and conclusions of law that sufficiently set forth the basis of the ruling).

Accordingly, we conclude that further proceedings are necessary to address justifiable excuse or excusable neglect.

B.

Those further proceedings, however, need not address alleged ineffective assistance of postconviction counsel in failing to call witnesses at the Crim. P. 35(c) hearing. To the extent that People v. Hickey, supra, and its progeny suggest otherwise, we decline to follow those cases. See In re Estate of Becker, 32 P.3d 557 (Colo.App.2000) (one division of this court is not obligated to follow the precedent established by another division), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).

"No Sixth Amendment right to counsel attaches for indigents seeking post-conviction relief." Duran v. Price, 868 P.2d 375, 379 (Colo.1994). Nor does such a right to counsel exist by virtue of Colo. Const. art. II, § 16. People v. Duran, 757 P.2d 1096 (Colo. App.1988). In Brinklow v. Riveland, 773 P.2d 517, 521 (Colo.1989), the court held that "due process does not demand" appointment of postconviction counsel.

The division in Hickey, supra, 914 P.2d at 378, concluded that a limited statutory right to counsel in postconviction proceedings is "tenuously premised" on §§ 21-1-103 and 21-1-104, C.R.S.2004. Accord People v. Duran, supra; People v. Naranjo, 738 P.2d 407 (Colo.App.1987). Observing that "the failure to provide effective assistance of counsel is tantamount to not providing counsel at all," People v. Hickey, supra, 914 P.2d at 379, the division relied on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to conclude that ineffective assistance of prior postconviction counsel would entitle the defendant to another postconviction proceeding. We question the first conclusion and disagree with the second conclusion.

In both Duran v. Price, supra, and Brinklow v. Riveland, supra, the supreme court concluded that a district court may decline to appoint postconviction counsel when the asserted claim is wholly unfounded. Neither Duran nor Brinklow cited the broader holdings of People v. Naranjo, supra, and People v. Duran, supra, that a defendant enjoys a statutory right to postconviction counsel.

More recently, the supreme court reiterated that it "has not recognized a right to counsel with respect to Crim. P. 35(c) motions." People v. Breaman, supra, 939 P.2d at 1350. There, the court cited People v Hickey, supra, and People v. Naranjo, supra, as "but see." Later in the opinion, however, the court stated, "Breaman did not have a right to appointed counsel." People v. Breaman, supra, 939 P.2d at 1351.

Under § 21-1-104(2), one of the statutes relied on in People v. Duran, supra, and People v. Hickey, supra, once appointed, the public defender need not pursue postconviction remedies unless "there is arguable merit to the proceedings." Thus, appointed counsel "may inform the court that he or she believes the defendant's [postconviction] claims are without merit and request permission to withdraw without filing an Anders brief." People v. Breaman, supra, 939 P.2d at 1351, n. 2. Se...