People v. Tresco, Court of Appeals No. 16CA0400

Docket NºCourt of Appeals No. 16CA0400
Citation457 P.3d 112
Case DateMay 02, 2019
CourtCourt of Appeals of Colorado

457 P.3d 112

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Gabriel A. TRESCO, Defendant-Appellant.

Court of Appeals No. 16CA0400

Colorado Court of Appeals, Division A.

Announced May 2, 2019

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Katayoun A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶1 Defendant, Gabriel A. Tresco, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault. Tresco argues that the trial court erred by (1) denying his request that his counsel be removed;1 (2) admitting expert testimony that was not properly disclosed to defense counsel; and (3) considering, at sentencing, a video recording from five years before the events of this case in which Tresco discussed his gang affiliation. We reject Tresco’s contentions and affirm. The last argument raises a novel question in Colorado.

I. Background

¶2 The prosecution charged Tresco with second degree assault for punching a man in the face — ultimately causing nerve damage — in in the parking lot of a bar, allegedly because the man groped Tresco’s fiancée. On the first day of trial, Tresco notified the trial court that he had filed a grievance against his defense counsel, a public defender. The trial court asked Tresco if he was requesting that the public defender be removed, and Tresco said that he was. The trial

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court declined to address Tresco’s request at that time, stating that it would do so after jury selection. However, the trial court never addressed Tresco’s request, and the public defender represented Tresco at trial.

¶3 The jury found Tresco guilty of second degree assault, and the trial court sentenced him to eight years in the custody of the Department of Corrections (DOC) and three years of mandatory parole.

¶4 Because we were unable to determine on the record before us whether the trial court erred by denying Tresco’s request that his counsel be removed, we remanded the case to the trial court with directions to address whether Tresco was entitled to different appointed counsel on the first morning of trial.2 With the benefit of the remand findings and record, we can now address Tresco’s contentions.

II. Right to Counsel

¶5 Tresco’s appellate counsel argues that the trial court violated Tresco’s Sixth Amendment rights by denying him counsel of choice. We disagree.

A. Applicable Law

¶6 The Sixth Amendment provides that a criminal defendant has the right to the assistance of counsel. U.S. Const. amend. VI. Although this right applies equally to indigent and non-indigent defendants, it manifests itself in different ways.

¶7 Under the Sixth Amendment, non-indigent defendants have the right to counsel of their choice. See People v. Ronquillo , 2017 CO 99, ¶ 16, 404 P.3d 264. In contrast, an indigent defendant who requests court-appointed counsel does not get to choose which court-appointed lawyer will represent him. Id. at ¶ 18. The Sixth Amendment instead guarantees that indigent defendants receive constitutionally effective representation from conflict-free counsel. Id. at ¶ 19 ; see also People v. Shreck , 107 P.3d 1048, 1055 (Colo. App. 2004).

¶8 "When an indigent defendant objects to his court-appointed counsel, the trial court must investigate the reasons for the dissatisfaction." People v. Johnson , 2016 COA 15, ¶ 30, 381 P.3d 348. This is a fact-intensive investigation into the details of the disagreement or conflict between the defendant and appointed counsel. See People v. Bergerud , 223 P.3d 686, 694 (Colo. 2010). "Unless the complaint underlying a request for substitution of counsel is sufficiently detailed, the court may not rule on the motion without conducting a proper hearing at which both attorney and client testify as to the nature of their conflict." Id. (citation omitted). The decision on whether to grant a defendant’s request for substitute appointed counsel is within the trial court’s discretion, and we will not disturb such a ruling absent an abuse of that discretion. See Johnson , ¶ 29.

¶9 Tresco was represented by appointed counsel at trial. On the first morning of trial, he did not ask to replace his appointed counsel with nonappointed counsel of his choice. Nor did he ask to represent himself. Tresco’s appellate counsel’s argument that his Sixth Amendment right to counsel of choice was violated is therefore inapposite to Tresco; because Tresco had appointed counsel, not private counsel, he did not have the right to counsel of his choice under the Sixth Amendment.

¶10 However, the Sixth Amendment did guarantee Tresco conflict-free appointed counsel who would represent him effectively. Tresco asked for replacement of his public defender due to an asserted conflict.

B. Trial Record

¶11 On the first morning of trial, Tresco informed the trial court that he had filed a grievance against his attorney and the following exchange occurred:

THE COURT: [I]s he intending to now file a motion on the morning of trial to require
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disqualification of counsel? Is that the intention here?

[TRESCO]: I would like for you to review that first to see which way I should go, because I don’t really know —

THE COURT: Well, I’m not here to give you legal advice, sir. I’m sorry. That’s not appropriate for me to do. And this document is essentially completely irrelevant to me and these proceedings.

[TRESCO]: Actually, there’s some relevance because, Your Honor, these are the things that led me to believe —

THE COURT: It would only be relevant if you’re filing or requesting that your counsel be withdrawn on the morning of trial.

[TRESCO]: Then, yes. Let’s proceed with that, Your Honor.

¶12 The trial court then explicitly recognized that it was required to evaluate Tresco’s request and stated that it would do so after jury selection. But, the trial court never addressed Tresco’s request.

¶13 By not ruling on the request, the trial court implicitly denied Tresco’s request for replacement of his public defender. But, because the court did not investigate the factual basis for the request, we had no record from which to determine whether the court’s implicit denial was an abuse of discretion. Having remanded with directions to investigate the basis for Tresco’s request and to determine whether he was entitled to replacement of his public defender, we now examine the findings and the supplemented record.

C. Remand Record

¶14 After two half-day hearings where the remand court heard testimony from Tresco and his trial counsel, Elizabeth Atkinson, and entertained extensive argument from appellate counsel, the court found as follows:

• Tresco "likely asked for withdrawal of the public defender on the morning of trial because he lacked confidence in her representation, and not because he wanted to testify inconsistently with a defense theory she insisted on presenting — as he now claims — and not because of a conflict of interest, a complete breakdown in communication, or some other irreconcilable conflict."

• Tresco "was not entitled to withdrawal of his public defender."

¶15 The grievance Tresco offered to the trial court was not part of our record before the remand. But, the remand court has now appropriately supplemented our record with the contents of that grievance, which reads as follows:

I’m having a break down in communications with Atkinson. Since May 2015 we have had minimal contact in regard to putting together a defense strategy(s) for my case. In fact I believe that she does not have my best interest in mind in preparing my case for trial. On the few occasions that she did interact with me, she never seemed confident in defending me in this case, suggesting that I take the plea bargain that was offered to me by the prosecutor. I [gave] her a list of witnesses that are [beneficial] to my defense but she shunned all the witnesses that I presented to her, saying that she didn’t believe they were credible. Furthermore[,] she contradicted herself by saying she tried contacting a certain witness several times.... The witness stated that the only person to contact her regarding my case was the District Attorney[’]s office. I believe this to be a violation of my civil rights and also my due process.

¶16 Based on our independent review of the record, as supplemented by the remand proceedings, we conclude that the remand court’s findings enjoy record support and reveal no abuse of discretion. Johnson , ¶ 29. Accordingly, we defer to those findings, including the remand court’s explicit and implicit credibility determinations. See People v. Travis , 2019 CO 15, ¶ 12, 438 P.3d 718 (a reviewing court should examine the " ‘total circumstances manifested by the record in [the] case’ and ‘particularly ... the reasons presented to the trial judge at the time’ " the right to counsel was allegedly denied) (citations omitted); see also People v. Harlan , 109 P.3d 616, 627-28 (Colo. 2005) ("[W]e cannot second-guess determinations of the trial court regarding witness credibility.").

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¶17 As the remand court aptly recognized, the...

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