People v. Valdez

• Decision Date: 27 December 2007
• Docket Number: No. 06CA0103.,06CA0103.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas T. VALDEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

178 P.3d 1269

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas T. VALDEZ, Defendant-Appellant.

No. 06CA0103.

Colorado Court of Appeals, Div. IV.

December 27, 2007.

Rehearing Denied February 8, 2008.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Gregory R. Stross, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Thomas T. Valdez, appeals the order denying his Crim. P. 35 request for postconviction relief from his convictions and sentence. We vacate the order and remand for further proceedings.

I. Introduction

This case presents the following issues surrounding the application of the doctrine of laches to postconviction proceedings.

• Can the doctrine of laches bar Crim. P. 35(c) claims that were timely filed, but have not been timely pursued? We describe why we believe the doctrine applies.

• If the doctrine of laches applies, was it satisfied in this case? The facts in this case indicate the doctrine was satisfied.

• Can the bar of laches be avoided? We conclude that, if a defendant demonstrates justifiable excuse or excusable neglect for failing to pursue a timely filed claim, then he or she can avoid the application of the doctrine.

• Does ineffective assistance of postconviction counsel constitute justifiable excuse or excusable neglect? We determine that it does.

• How should prejudice be analyzed for purposes of the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when the allegation of ineffective assistance involves the limited statutory right to counsel in postconviction proceedings described in Silva v. People, 156 P.3d 1164, 1168-70 (Colo.2007)? We conclude that prejudice in these circumstances must be defined in terms of the nature of postconviction proceedings.

• Was defendant's postconviction counsel ineffective in this case? We conclude postconviction counsel was ineffective under the Strickland standard by not timely prosecuting defendant's postconviction motion.

• Even though we have concluded postconviction counsel was ineffective, is defendant nevertheless not entitled to relief because (1) he abandoned his postconviction claims by acquiescing in his counsel's inaction, or (2) he waived his right to the effective assistance of postconviction counsel? We conclude that a remand is necessary to answer these questions.

II. Background

After a jury trial in 1992, defendant was convicted of three counts of sexual assault on a child (pattern of conduct), and three counts of sexual assault on a child (position of trust). All six counts were class 3 felonies. § 18-3-405, C.R.S.2007. Later that year, defendant was sentenced to three consecutive ten-year sentences, one for each of the sexual assault on a child (pattern of conduct) counts, and three concurrent ten-year sentences for the three counts of sexual assault on a child (position of trust). The judgment was affirmed in People v. Valdez, 874 P.2d 415 (Colo.App.1993). The mandate was issued on June 16, 1994, after the supreme court denied defendant's petition for a writ of certiorari. Defendant was represented by the same defense counsel at trial and on appeal.

On March 10, 1997, the court received a letter from defendant claiming, without raising specific instances, that his counsel had been ineffective at trial and on appeal. Defendant asked the trial court to appoint counsel to assist him in petitioning the court because he felt he had "a meritorious basis for appropriate postconviction relief." He wrote, "I am not comfortable or feel qualified to present any case law concerning this letter[,] [n]or would even attempt to file this letter as a motion. I am in dire need of effective counsel to perfect an appropriate type of postconviction relief application."

On March 18, 1997, the court sent the public defender an order requiring the public defender to look into the case and inform the court whether the public defender would represent defendant "with regard to the attached 35(c) motion filed on March 10, 1997." A copy of this order was forwarded to the district attorney and to defendant.

A public defender replied on March 20, 1997, indicating the public defender's office would accept the appointment to investigate defendant's claims. The court then appointed the public defender's office to represent defendant for purposes of "defendant's 35(c) motion" on March 24, 1997. The court sent the district attorney and defendant a copy of this order.

In December 2000, the court held a hearing, at which defendant was present, concerning the public defender's subpoena to produce some school records. At that time, the public defender explained the records were subpoenaed for "an old 35(c) case that apparently kind of fell between the cracks." He said, "I had the case a long time ago. I handed it off, and I now have it back." A member of the district attorney's office attended the hearing.

In April 2004, the public defender filed a document entitled, "Supplemental Motion to Reverse Conviction for Ineffective Assistance of Counsel Pursuant to Crim. P. 35(c) and Request for Hearing," which contained specific allegations. After several requests for extension of time were granted by the court, the prosecution filed its response in May 2005, in which it asserted the doctrine of laches as a defense, asking that the trial court deny defendant's postconviction motion without a hearing on the merits.

The trial court, a judge who had not previously dealt with this case, set defendant's motion for a hearing, alerting the parties that the trial court wished to address whether (1) the doctrine of laches would apply to the public defender's inaction; (2) the concept of excusable neglect would justify a "delay in filing of seven years"; and (3) the test for ineffective assistance of counsel enunciated by Strickland would apply to "counsel whose actions fall outside of excusable neglect."

In a brief addressing these issues, the public defender argued defendant filed his request for postconviction relief within the three-year period required by section 16-5-402, C.R.S.2007. When discussing whether the doctrine of laches was applicable, the public defender wrote:

[Defendant] is blameless. He filed his pro se motion on time. He did everything he could, in a timely fashion, to enforce his rights. He relied on the Court's action of appointing counsel and believed the matter was being handled. From that point forward he was helpless to do anything else. He is "the party." He is not guilty of any delay. Any delay in moving forward should be attributed to his counsel or the Court. There is no delay here on the part of the "party."

The public defender also wrote:

In the case at bar counsel for the defense is not in a position to argue that he has been ineffective. In the event that this Court finds that [defendant] is not entitled to have a determination of the merits of his claim because of delay caused by his court appointed counsel, then the Court will have to first appoint independent counsel to represent [defendant] to see if [defendant] is entitled to proceed on a 35(c) claim because his court appointed counsel was ineffective in its handling of his 35(c). Then it will have to review the merits of the case to determine if trial counsel was ineffective. This will result in more delays and seems to be a waste of time and resources.

The public defender observed:

It is admitted that through a series of miscommunications at the public defender's office that the case laid [sic] dormant for a long period of time before anything was done. [The public defender] believed the case had been reassigned and in fact it had not. [The public defender] personally accepts responsibility for this and assures this court that it was not intentional, it was not done to gain any advantage and there was never any acquiescence by [defendant] to any delay in this case. When the Court takes action and appoints counsel to represent an individual that individual should be able to rely on that counsel. He should not lose the right to have an issue of constitutional magnitude resolved because he relied on the actions of the Court and his court appointed lawyer.

In a written order issued in November 2005, the court denied defendant's motion for postconviction relief without a hearing. The court noted defendant had timely filed his first Crim. P. 35(c) motion with his 1997 letter. However, the trial court determined the application of the equitable doctrine of laches made defendant's motion untimely under section 16-5-402. Relying on People v. Merchant, 983 P.2d 108, 112-13 (Colo.App. 1999), a case the trial court viewed as factually similar, the trial court concluded the doctrine of laches should be applied because the seven-year delay between the receipt of defendant's letter and the public defender's filing the supplemental motion would frustrate the beneficial purposes of section 16-5-402. These purposes include avoiding the problems associated with litigating stale claims. See People v. Wiedemer, 852 P.2d 424, 429 (Colo.1993).

The court decided the doctrine of laches applied because defendant failed to act on the case for seven years. This failure constituted "unconscionable delay," and allowed "the memories of [the prosecution's] witnesses to diminish."

Finally, the trial court stated that defendant could avoid the doctrine of laches if the court were to decide that defendant's failure to pursue his motion for seven years was a product of justifiable excuse or excusable neglect. The trial court determined defendant's argument that the delay was excusable was based upon an allegation of ineffectiveness of postconviction counsel, specifically that the public defender did not "follow through and supplement" the 1997 letter. Concluding that "the mere failure to challenge a conviction does not...