People v. Smith
| Decision Date | 26 May 2022 |
| Docket Number | Court of Appeals No. 19CA2359 |
| Citation | 516 P.3d 938,2022 COA 56 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Robert SMITH, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Adrienne R. Teodorovic, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE FREYRE
¶ 1 Anthony Robert Smith appeals the postconviction court's order denying his Crim. P. 35(c) motions without a hearing. He argues that the court erroneously found his pro se claims waived when appointed counsel omitted them from her supplemental postconviction motion. He also asserts that his claims warranted a hearing. As a matter of first impression, we hold that appointed counsel does not waive claims in a pro se motion by omitting them from a supplemental motion. Therefore, we remand the case for the postconviction court to consider the issues raised in Smith's pro se Crim. P. 35(c) motion and to determine whether a hearing is warranted. However, we discern no error in the court's ruling on Smith's supplemental motion and affirm that portion of the order.
¶ 2 S.F., an eight-year-old girl, left her home with her mother amidst her parents’ divorce proceedings. They moved to Fort Collins to stay with her aunt (A.W.), her aunt's boyfriend (Smith), and her cousin (H.W.), a nine-year-old girl. Shortly thereafter, S.F. told her mother that she had seen Smith walk around the house naked from the waist down. She also said Smith had taken off her and H.W.’s pants and had "walked his fingers" up their legs towards their private areas. He also made them watch pornography on the internet.
¶ 3 After the police were contacted, S.F. underwent a short interview and a forensic interview. She repeated what she had told her mother. But in the forensic interview, she added that Smith slapped her face to make her watch the pornography. S.F. also told the interviewer that Smith had removed her pants and underwear, rubbed his hand on the outside of her private area, and touched S.F.’s and H.W.’s breasts.
¶ 4 Police executed a search warrant at Smith's home. They seized a video camera containing a deleted video. The video showed S.F. and H.W. asking Smith to show them the pornography website he was watching earlier. Smith ignored the girls for a while but eventually loaded the website on his laptop and let the girls watch.
¶ 5 The prosecution charged Smith with one count of sexual assault on a child-position of trust-pattern of sexual abuse, three counts of sexual assault on a child-position of trust, and four counts of promotion of obscenity to a minor. A jury convicted him of all charges. A division of this court affirmed his convictions in People v. Smith , 2015 WL 9584887 (Colo. App. No. 14CA0085, Dec. 31, 2015) (not published pursuant to C.A.R. 35(f) ).
¶ 6 In 2018, Smith filed a pro se Crim. P. 35(c) motion asserting twelve claims related to ineffective assistance of counsel, newly discovered evidence, and prosecutorial misconduct. Smith asked for court-appointed counsel and a hearing. The postconviction court appointed counsel, who then filed a supplemental Crim. P. 35(c) motion that expanded on three of Smith's original claims and clarified that Smith challenged only the effectiveness of his prior trial counsel.1 The prosecution filed a response and the court issued a written order addressing and denying the claims raised in counsel's supplemental motion without a hearing.
¶ 7 In footnote one of its order, the postconviction court found the remaining issues raised in Smith's pro se petition waived because counsel had not reasserted them in the supplemental motion and the prosecution had not responded to them. In support, it cited People v. Breaman , 939 P.2d 1348, 1351 (Colo. 1997) ().
¶ 8 Smith contends that the postconviction court erred in finding that he waived his pro se claims by not reasserting them in counsel's supplemental motion. Because the supplemental motion does not evidence an intent to waive or abandon the remaining pro se claims, we agree.
¶ 9 We review a postconviction court's decision to deny a Crim. P. 35(c) motion without a hearing de novo. People v. Cali , 2020 CO 20, ¶ 14, 459 P.3d 516 ; People v. Castillo , 2022 COA 20, ¶ 15, 510 P.3d 561.
¶ 10 When asserting the ineffective assistance of trial or appellate counsel, a defendant must show (1) "that counsel's performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also People v. Valdez , 789 P.2d 406, 410 (Colo. 1990) (). Courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and make "every effort ... to eliminate the distorting effects of hindsight." Strickland , 466 U.S. at 689, 104 S.Ct. 2052.
¶ 11 A court may deny a Crim. P. 35(c) motion without a hearing only if the motion, files, and record clearly establish that the defendant's allegations are without merit and do not warrant postconviction relief. Ardolino v. People , 69 P.3d 73, 77 (Colo. 2003). The motion may be denied without a hearing only if the record establishes that the defendant's allegations, even if true, would fail to establish either the deficient performance or prejudice prongs of the Strickland test. Id.
¶ 12 To establish deficient performance, a defendant must prove that counsel's representation "fell below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. "The prejudice component requires the defendant to prove that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " People v. Garcia , 815 P.2d 937, 941 (Colo. 1991) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).
¶ 13 As relevant here, Crim. P. 35(c)(3)(I) and (II) require a pro se defendant to initiate the postconviction review process by filing a timely and compliant pro se motion. If a defendant requests and the court appoints counsel, then counsel may request additional time to investigate and "add any claims" counsel believes have merit. Crim. P. 35(c)(3)(V). While court-appointed counsel has no duty to prosecute meritless postconviction relief claims, Breaman , 939 P.2d at 1351, counsel may not seek dismissal of a defendant's claims against the defendant's wishes, regardless of counsel's belief in the claims’ merits. Dooly v. People , 2013 CO 34, ¶ 7, 302 P.3d 259. Indeed, "a district court is not authorized to grant an attorney's motion to dismiss his client's application for postconviction relief without his client's informed consent." Id. at ¶ 10. Moreover, the postconviction court has an independent obligation to make findings of fact and conclusions of law regarding Crim. P. 35(c) claims, "irrespective of [an] attorney's conclusions or analysis." Breaman , 939 P.2d at 1352.
¶ 14 Because a defendant's right to postconviction review is statutory, "a waiver of the right need only be voluntary." People v. Wiedemer , 852 P.2d 424, 438 (Colo. 1993). A voluntary decision is one made intentionally, freely, deliberately, and without coercion. People v. Martinez , 70 P.3d 474, 478 (Colo. 2003) ; Cardman v. People , 2019 CO 73, ¶ 21, 445 P.3d 1071. And, "we must indulge ‘every reasonable presumption against waiver,’ " People v. Rediger , 2018 CO 32, ¶ 46, 416 P.3d 893 (citation omitted), even for a "nonfundamental right," Phillips v. People , 2019 CO 72, ¶ 21, 443 P.3d 1016.
¶ 15 We conclude that Smith did not waive his pro se claims for two reasons. First, to the extent the postconviction court found a waiver based on counsel's failure to reassert the pro se claims in her supplemental motion, we disagree. Counsel titled her motion "Supplemental Motion For Post-Conviction Relief." The plain meaning of supplement is "to add or serve as a supplement to." Merriam-Webster Dictionary, https://perma.cc/GN3D-PF8T; see also Black's Law Dictionary 1395 (11th ed. 2019) ("Unlike an amended pleading, a supplemental pleading merely adds to the early pleading and does not replace it.") (emphasis added). This meaning is consistent with the plain language of Crim. P. 35(c)(3)(V), permitting court-appointed counsel to add claims to a defendant's pro se motion. Indeed, it would make little sense to require counsel to reassert claims already made. Cf. People v. Clark , 2015 COA 44, ¶ 111, 370 P.3d 197 (). Therefore, we conclude that court-appointed counsel is not required to reassert issues raised in a pro se motion in a supplemental motion in order to preserve them for the postconviction court's ruling and this court's review.
¶ 16 Second, the People have not identified, nor can we find, any language in the supplemental motion that purports to abandon or waive any issues raised in Smith's pro se motion. To be sure, counsel has no duty to pursue meritless claims; however, nothing in the record shows that counsel considered Smith's pro se claims to be meritless or that she sought (or received) Smith's informed consent to waive any claims. And we must indulge every presumption against waiver. Phillips , ¶¶ 16, 18, 22 ().
¶ 17 In Dooly , court-appointed counsel filed a motion to dismiss the defendant's pro se postconviction motion on the grounds that it had no merit. Dooly , ¶ 1. The...
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