People v. Valdez

• Decision Date: 02 April 1990
• Docket Number: No. 88SA449,88SA449
• Citation: 789 P.2d 406
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd Louis VALDEZ, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 406

789 P.2d 406

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lloyd Louis VALDEZ, Defendant-Appellant.

No. 88SA449.

Supreme Court of Colorado En Banc.

April 2, 1990.

Rehearing Denied April 23, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and John Daniel Dailey, Deputy Atty. Gen., Denver, for plaintiff-appellee.

Jeffrey N. Herren, Lakewood, for defendant-appellant.

Justice KIRSHBAUM delivered the Opinion of the Court.

Appellant Lloyd Louis Valdez (Valdez) filed a Crim.P. 35(c) motion for post-conviction relief in the trial court, asserting that he had been denied effective assistance of appellate counsel in seeking this court's certiorari review of a judgment of the Court of Appeals. The motion requested the trial court to "find ... that meritorious grounds for review of his conviction exist" and to "grant him an additional period of time to perfect his writ of certiorari." The trial court denied the motion, and Valdez appealed. ¹ We affirm.

I

On November 19, 1982, Valdez threatened to kill two prison guards with a pair of scissors at the Colorado Correctional Facility in Golden, Colorado. On March 14, 1983, Valdez was convicted by a Jefferson County District Court jury of the offense of first degree assault, in violation of section 18-3-202(1)(e), 8 C.R.S. (1978), and of five counts of habitual criminal charges, in violation of section 16-13-101, 8 C.R.S. (1978 and 1982 Supp.). The trial court imposed a sentence of life imprisonment, and Valdez appealed.

The Colorado Court of Appeals affirmed the judgment of the trial court on March 27, 1986. People v. Valdez, 725 P.2d 29 (Colo.App.1986). Valdez timely filed a petition for rehearing with the Court of Appeals, which petition was denied. Valdez, by his attorney, then filed three motions for extension of time within which to file a petition for writ of certiorari with this court. All of the motions were granted. The third order extended the time for filing such petition to August 5, 1986, and contained the statement, "No further extensions." ²

On August 5, 1986, Valdez' appellate counsel filed a motion requesting one additional day within which to file the petition. ³ On August 6, 1986, Valdez' appellate counsel filed a twenty-six page petition for writ of certiorari together with a motion requesting permission to file a petition in excess of twelve pages. On that same date, August 6, 1986, this court denied the motion for further extension of time. On August 7, 1986, this court denied the request for leave to file a petition in excess of twelve pages. Valdez' appellate counsel promptly filed a motion for reconsideration of the denial of the request for extension of time or, alternatively, for permission to withdraw and for appointment of private counsel. The motion expressly referred to the contents of the petition for writ of certiorari in asserting that Valdez was denied a fair trial and that the Court of Appeals had erred in affirming his convictions. The motion was denied on August 11, 1986, and the Court of Appeals issued its mandate on August 19, 1986.

Valdez subsequently filed a motion for post-conviction relief with the trial court pursuant to Crim.P. 35(c)(2), alleging ineffective assistance of counsel on appeal. ⁴ The trial court conducted a hearing on September 18, 1987, at the conclusion of which it denied the motion by means of an oral ruling. In a subsequent written order denying Valdez' motion for rehearing, the trial court held that "defendant's appellate counsel's performance was reasonable under prevailing professional norms and after considering the circumstances of this case." Referring to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stroup v. People, 656 P.2d 680 (Colo.1982), and People v. Williams, 736 P.2d 1229 (Colo.App.1986), cert. denied (1987), the trial court also concluded that some prejudice to Valdez must be established to authorize relief pursuant to Crim.P. 35(c), that such prejudice had not been established, and that such prejudice could not be presumed. This appeal ensued.

II

The trial court concluded that under the circumstances of this case Valdez failed to establish ineffective representation by his appellate counsel. While we agree with this conclusion, we do so on grounds quite different from those relied upon by the trial court.

Crim.P. 35(c)(2)(VI) permits application for post-conviction relief by a person whose judgment of conviction has been affirmed on appeal if the application alleges a ground "properly the basis for collateral attack upon a criminal judgment." It is well established that a violation of the right to effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution and article II, section 16, of the Colorado Constitution in connection with a first appeal of right constitutes such a ground. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Stroup v. People, 656 P.2d 680 (Colo.1982); People v. Williams, 736 P.2d 1229 (Colo.App.1986), cert. denied (1987). However, in Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), the United States Supreme Court held, per curiam, that under the sixth amendment to the United States Constitution "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court." Id. at 587, 102 S.Ct. at 1301. We therefore must initially determine whether Valdez was entitled as a matter of constitutional right to the assistance of counsel at all in filing a petition for writ of certiorari with this court from the final judgment of the Court of Appeals affirming his conviction at trial. ⁵

We first note that an attorney had been appointed to represent Valdez for the purpose of appealing his trial court conviction. Certainly an appellate attorney's responsibilities include the obligation to advise his or her client of the possibility of discretionary review by this court of a Court of Appeals judgment. It is undisputed that Valdez and his attorney agreed that the Court of Appeals erred in affirming the trial court's judgment and that a petition for writ of certiorari review should be filed.

It has long been recognized that this court in the exercise of its appellate jurisdiction has absolute discretion to grant or to deny a petition for writ of certiorari to review a final judgment of a lower tribunal. Colo. Const. art. VI, § 3; C.A.R. 50, 52(b); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970); Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968); People v. District Court, 28 Colo. 218, 64 P. 194 (1900). We have also recognized that under our rules of appellate procedure, as authorized by the grant of appellate jurisdiction contained in article VI, sec. 2(2) of the Colorado Constitution, a petition requesting this court to exercise its appellate jurisdiction to review a lower court judgment is an application of right. C.A.R. 51(a); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37; see People v. Williams, 736 P.2d 1229 (Colo.App.1986), cert. denied (1987). Thus Valdez had a right to file his application for certiorari review by this court of the judgment of the Court of Appeals. He therefore had a right to obtain counsel and to rely upon such counsel's skill for the purpose of preparing and filing that application.

III

Valdez asserts that the trial court erred in applying the cause and effect test enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether he was denied effective assistance of appellate counsel in this case. The two-part Strickland test requires a court to determine initially whether trial counsel's performance was deficient, as measured by the objective standard of reasonable conduct by a reasonably competent attorney. If the trial attorney's conduct was unreasonable under all the circumstances, the court must then determine if such deficient performance so prejudiced the defendant as to deprive the defendant of a fair trial. Id. at 687-88, 104 S.Ct. at 2064-65. The test was designed to provide a remedy in circumstances wherein the conduct of a trial attorney "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064.

In Strickland, the Supreme Court focused its attention on the necessity of ensuring the integrity of the adjudicative process in the context of a trial setting. While this concern stems from due process notions as well as right to counsel principles, see Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 833-34, 83 L.Ed.2d 821 (1985), such commingling of analytical formulae should not obscure the basic contours of the enunciated policy. At all stages of adjudicative proceedings each party is responsible for the thorough and vigorous presentation of that party's position. Whether the object be the accumulation of evidence, the cross-examination of adverse witnesses, or the analysis and application of pertinent legal precedent, each party in our adversarial system must assume the responsibility for accomplishing the task. When a party is represented by counsel at trial, that party becomes quite dependent upon that counsel's skill and training to participate meaningfully in the judicial process.

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