People v. Timoshchuk

• Decision Date: 01 November 2018
• Docket Number: Court of Appeals No. 17CA0259
• Citation: 457 P.3d 684
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Maksim V. TIMOSHCHUK, Defendant-Appellant.
• Court: Colorado Court of Appeals

457 P.3d 684

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

v.Maksim V. TIMOSHCHUK, Defendant-Appellant.

Court of Appeals No. 17CA0259

Colorado Court of Appeals, Division IV.

Announced November 1, 2018

Rehearing Denied November 29, 2018

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Maksim V. Timoshchuk appeals the district court’s order summarily denying his Crim. P. 35(c) motion for postconviction relief based on a claim of ineffective assistance of counsel. We hold apparently for the first time, that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel as measured by the Strickland test. Because Timoshchuk asserted sufficient facts to warrant a hearing on his claim, we reverse and remand for further proceedings.

I. Background

¶ 2 Timoshchuk was born in Ukraine and admitted to the United States as a refugee on July 16, 2002. The federal immigration authorities adjusted his status to that of a lawful permanent resident on November 17, 2005.

¶ 3 In March 2015, Timoshchuk was charged with forgery. As part of a plea agreement, on April 21, 2015, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases.

¶ 4 In July 2015, Timoshchuk’s probation officer filed a complaint in district court, alleging that Timoshchuk had violated the conditions of his probation in part by being arrested and charged with new offenses. On August 24, 2015, Timoshchuk entered into an agreement resolving all four cases; specifically, he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk’s probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections concurrent with his other sentences.

¶ 5 On July 27, 2016, the Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(R) (2018).¹ Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged.

¶ 6 In September 2016, Timoshchuk filed a Form I-589 Application for Asylum and for Withholding of Removal. The court ultimately denied his application. The immigration judge ruled that Timoshchuk was not eligible for asylum due to his aggravated felony conviction.

¶ 7 Timoshchuk then filed a postconviction motion under Crim. P. 35(c), alleging that he was denied effective assistance of counsel because his probation revocation counsel failed to adequately investigate and correctly advise him of the immigration consequences of his admission and subsequent sentencing.²

The district court denied Timoshchuk’s motion without a hearing, stating that Timoshchuk was "advised that the convictions in the plea agreement would have adverse consequences on his immigration status."

II. Analysis

¶ 8 Timoshchuk argues that the court erred in denying his Crim. P. 35(c) motion for postconviction relief without a hearing. We agree.

A. Standard of Review

¶ 9 We review a district court’s summary denial of a Crim. P. 35(c) motion de novo. People v. Gardner , 250 P.3d 1262, 1266 (Colo. App. 2010).

¶ 10 A district court may deny the motion without a hearing if the motion, files, and record clearly show that the defendant is not entitled to relief. People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005). "Summary denial of a postconviction relief motion is also appropriate if the claims raise only an issue of law, or if the allegations, even if true, do not provide a basis for relief." Id. And a court may deny a postconviction motion if its claims are bare and conclusory or lack supporting factual allegations. Id.

B. Applicable Law

1. Right to Counsel at a Probation Revocation Hearing

¶ 11 Before we can address a claim for relief under Crim. P. 35(c), we must decide whether a right to counsel exists at a probation revocation hearing. If no right to counsel exists, a defendant "bears the risk ... for all attorney errors made in the course of representation." Silva v. People , 156 P.3d 1164, 1169 (Colo. 2007) (quoting People v. Silva , 131 P.3d 1082, 1089 (Colo. App. 2005) ). The parties dispute whether a probationer facing revocation has a constitutional right to counsel at the revocation hearing. We note that our supreme court has observed that two United States Supreme Court cases set out " ‘minimum requirements of due process’ at parole or probation revocation hearings." People v. Atencio , 186 Colo. 76, 78-79, 525 P.2d 461, 462 (1974) (quoting Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ). The requirements include

(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him[;] (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.

Id. (quoting Morrissey , 408 U.S. at 489, 92 S.Ct. 2593, and Gagnon , 411 U.S. at 786, 93 S.Ct. 1756 ). Notably absent from this list is the right to be represented by counsel. Indeed, in Gagnon , the United States Supreme Court rejected a categorical rule requiring court-appointed counsel for indigent probationers facing revocation in favor of a case-by-case assessment of whether "fundamental fairness—the touchstone of due process—will require that the State provide at its expense counsel for indigent probationers or parolees." 411 U.S. at 790, 93 S.Ct. 1756.

¶ 12 Gagnon involved a probationer who, upon receiving probation, also received a suspended fifteen-year sentence, for which the sentencing order provided that "(i)n the event of his failure to meet the conditions of his probation he will stand committed under the sentence all ready (sic) imposed." Id. at 779 n.1, 93 S.Ct. 1756. The Court observed that probation revocation "is not a stage of a criminal prosecution." Id. at 782, 93 S.Ct. 1756. In doing so, the Court distinguished an earlier case, Mempa v. Rhay , 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). In that case, the United States Supreme Court ruled that a defendant placed on probation as part of a deferred sentence was entitled to counsel at the hearing to revoke the probation and enter the initial sentence. 389 U.S. at 137, 88 S.Ct. 254. However, the Gagnon court held that the reasoning underpinning Mempa "does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial." 411 U.S. at 781, 93 S.Ct. 1756.

¶ 13 The facts of the case before us fall between Mempa and Gagnon . Timoshchuk was sentenced upon entry of his plea in April 2015. But, unlike in Gagnon , the sentence did not include a suspended component that would take effect automatically upon revocation of probation. Cf. People v. Abdul , 935 P.2d 4 (Colo. 1997) (holding that a defendant is not entitled to a resentencing hearing or appointment of counsel after termination from a community corrections program).

¶ 14 We need not determine, however, whether due process, in light of its touchstone of fundamental fairness, requires appointment of counsel in all probation revocation hearings such as the one at issue here, because we conclude that the legislature has provided probationers facing revocation with a statutory right to counsel. See Dami Hosp., LLC v. Indus. Claim Appeals Office , 2017 COA 21, ¶ 15, 457 P.3d 621 (recognizing that courts should avoid constitutional issues that need not be resolved in order to decide a case) (cert granted Sept. 11, 2017).

¶ 15 When the government seeks to revoke an offender’s probation, the court is required, at the probationer’s first appearance on the revocation, to "advise the probationer as provided in section 16-7-207 insofar as such matters are applicable; except that there is no right to a trial by jury in proceedings for revocation of probation." § 16-11-206(1), C.R.S. 2018. Section 16-7-207, C.R.S. 2018, in turn, sets out a defendant’s trial rights. In particular, it provides that "it is the duty of the judge to inform the defendant and make certain that the defendant understands ... [t]he defendant has a right to counsel." § 16-7-207(1)(b).

¶ 16 Of course, the probation revocation statute does not necessarily incorporate every right enumerated in section 16-7-207 into a probation revocation proceeding. For example, section 16-7-207(1)(f) includes the right to a jury trial. However, that right is explicitly excluded in probation revocation proceedings. § 16-11-206(1). Also, section 16-7-207(1)(a) provides the defendant’s right to remain silent. However, in a probation revocation hearing, the prosecution may call the probationer as a witness, and his refusal to answer questions may be used against him. Byrd v. People , 58 P.3d 50, 56-57 (Colo. 2002).

¶ 17 To our knowledge, no Colorado appellate court has directly addressed whether the interplay of sections 16-11-206 and 16-7-207 operates as a legislative grant of the right to counsel at a probation revocation hearing. Analyzing an earlier statute, the ...