Silva v. People

• Decision Date: 23 April 2007
• Docket Number: No. 05SC519.,05SC519.
• Citation: 156 P.3d 1164
• Parties: Christopher SILVA, Petitioner/Cross-Respondent v. The PEOPLE of the State of Colorado, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

156 P.3d 1164

Christopher SILVA, Petitioner/Cross-Respondent v. The PEOPLE of the State of Colorado, Respondent/Cross-Petitioner.

No. 05SC519.

Supreme Court of Colorado. En Banc.

April 23, 2007.

Christopher Silva, Limon, Colorado, Pro Se.

John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.

Douglas K. Wilson, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy Public Defender, Shann Jeffrey, Deputy State Public Defender, Denver, Colorado, Attorneys for Amicus Curiae Colorado State Public Defender.

Kim Dvorchak, Littleton, Colorado, Michelle Lazar, Jonathan D. Reppucci, Denver, Colorado, Attorneys for Amicus Curiae Colorado Criminal Defense Bar.

Justice RICE delivered the opinion of the court.

We granted certiorari to review the court of appeals' holding that the petitioner, Christopher Silva, may have had justifiable excuse for filing his second Crim. P. 35(c) motion outside the statutory time limit set in section 16-5-402(1), C.R.S. (2006).¹ In its ruling, the court of appeals held that the trial court should have investigated whether Silva's motion was justifiably late because the appeal on his first Crim. P. 35(c) motion was not finalized until after the three-year statutory time limit. The court held that only one claim in Silva's motion, the conflict of interest claim concerning post-conviction counsel, required further investigation. The court further held, however, that a related ineffective assistance of post-conviction counsel claim did not require further investigation by the trial court because there is not a right to effective assistance of post-conviction counsel. We affirm the court of appeals' decision in part and reverse in part. We hold that there exists a limited statutory right to post-conviction counsel in Colorado and that, where the right exists, counsel must meet the two-prong test of effectiveness as developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I. Facts and Procedural History

Christopher Silva was arrested and charged with four counts of burglary and assault plus six habitual criminal counts. Initially, he was represented by David Eisner, a deputy state public defender. However, Silva requested alternative defense counsel because of a possible conflict of interest with the public defender's office. Because of this potential conflict, the trial court appointed alternative defense counsel, Rennard Hailey, to represent Silva. After a jury trial, Silva was convicted of third-degree assault and first-degree burglary. The trial court then found Silva guilty of six habitual criminal counts under sections 18-4-202.1, C.R.S. (1997) and 16-13-101, C.R.S. (1997).² As a result of these combined convictions, the trial court sentenced Silva to 48 years in the Department of Corrections. The court of appeals reviewed the trial court's actions and found that there was insufficient evidence for one of the habitual counts, but otherwise affirmed Silva's convictions.

Silva then filed his first Crim. P. 35(c) motion for post-conviction relief on the grounds of ineffective assistance of counsel. In this pro se motion, Silva requested that counsel be appointed to represent him in the post-conviction process. He specifically requested that neither trial counsel nor the public defender's office be appointed because his ineffective assistance of counsel claims involved both Hailey, his trial counsel, and Eisner, his initial public defender. As to Hailey's performance, Silva alleged a general lack of preparation and a series of evidentiary mistakes made during the trial. As to Eisner, Silva claimed that Eisner gave purported attorney-client material to the district attorney which later was used against Silva at trial.

The trial court issued an order appointing the public defender's office to represent Silva in the post-conviction process. However, the trial court later vacated this order at the request of the public defender's office and instead simply referred the matter to the public defender's office for its own determination under section 21-1-104(1)(b), C.R.S. (2006). The public defender's office evaluated Silva's motion and determined that his claims warranted representation. As a result, William McNulty of the public defender's office entered his appearance on behalf of Silva.

In the Crim. P. 35(c) proceeding, McNulty only presented the issue of constitutional ineffective assistance of trial counsel to the court and did not raise any of the other issues from Silva's pro se 35(c) motion, including the ineffective assistance claim concerning Eisner. Silva wrote separately to the judge and asked that all the issues in his original pro se 35(c) motion be preserved. However, at Silva's 35(c) hearing, the trial court refused to consider the ineffective assistance claim concerning Eisner because it had not been raised by McNulty. The court stated that appointed counsel controls what issues are valid and are to be raised for consideration, not the defendant. After the hearing, the court denied Silva's request for relief under Crim. P. 35(c) because Silva's trial counsel was not constitutionally ineffective. The court of appeals affirmed the trial court's ruling.

Silva then filed a second Crim. P. 35(c) motion pro se alleging several claims: (1) ineffective assistance of appellate counsel; (2) unconstitutionality of habitual criminal statute because the judge and not the jury found Silva to be a habitual criminal; (3) failure to receive a "Curtis" advisement on his right to testify during the habitual criminal proceedings; (4) unconstitutionally disproportionate sentence; and (5) ineffective assistance of post-conviction counsel for failing to call certain witnesses and for having a conflict of interest. The conflict of interest issue in claim (5) stemmed from an allegation by Silva that McNulty failed to bring an ineffective assistance of counsel claim against Eisner, because Eisner was McNulty's supervisor.

The trial court denied Silva's second Crim. P. 35(c) motion without making any findings of fact or conclusions of law in its ruling. The court checked a box for "deny" and wrote "for the reasons given by the People in their Response." The People's Response argued that Silva's motion was time-barred because it was filed outside of the three-year time limit under section 16-5-402(1). By statute, Silva had to file all Crim. P. 35(c) motions by November 20, 2003, because the mandate on his direct appeal was issued on November 20, 2000. § 16-5-402(1). However, Silva's second Crim. P. 35(c) motion was not filed until December 22, 2003, a month outside the three-year statutory limit.

On appeal from the trial court's dismissal of his second 35(c) motion, Silva argued that the trial court should have held a hearing as to whether his second motion was late because of justifiable excuse or excusable neglect. Under section 16-5-402(2)(d), a late Crim. P. 35(c) motion may still be considered if a defendant can establish justifiable excuse or excusable neglect. In arguing justifiable excuse, Silva alleged that his second Crim. P 35(c) motion was filed late because the order from the court of appeals on his first Crim. P. 35(c) proceeding was not issued until December 9, 2003. Only after this order could he file a Crim. P. 35(c) motion alleging ineffective assistance of post-conviction counsel. Ardolino v. People, 69 P.3d 73, 77 (Colo.2003) ("defendants have regularly been discouraged from attempting to litigate their counsels' effectiveness on direct appeal"); People v. Thomas, 867 P.2d 880, 886 (Colo.1994) ("this court has expressed a preference for having ineffective assistance of counsel claims brought in Crim. P. 35(c) proceedings"). Therefore, according to Silva, all of his claims in the second Crim. P. 35(c) motion were justifiably late because of the time it took to exhaust his appeal on the first Crim. P. 35(c) motion.

The court of appeals agreed in part with Silva and held that Silva's fifth claim concerning post-conviction counsel (ineffective assistance of post-conviction counsel for failing to call certain witnesses and for having a conflict of interest) may have been justifiably late due to the appeal of the first post-conviction motion. People v. Silva, 131 P.3d 1082, 1086 (Colo.App.2005). Therefore, the trial court should have held further proceedings on justifiable excuse and made separate findings of fact and law. Id. However, the court of appeals also held that the first four claims in Silva's second Crim. P. 35(c) motion (ineffective assistance of appellate counsel; unconstitutionality of habitual criminal statute because the judge and not the jury found Silva to be a habitual criminal; failure to receive a "Curtis" advisement on his right to testify during the habitual criminal proceedings; unconstitutionally disproportionate sentence) were time-barred. Id. at 1085.

In its decision, the court of appeals separated Silva's fifth claim into two claims, a claim for constitutionally ineffective assistance of counsel for failing to call certain witnesses and a claim for conflict of interest concerning the public defender's office. The court held that further proceedings were not needed on the ineffective assistance of counsel claim. The court reasoned that even if Silva's post-conviction counsel was ineffective, there was no constitutional or statutory violation requiring relief under Crim. P. 35(c)(2)(I) because there is no constitutional or statutory right to post-conviction counsel. Silva, 131 P.3d at 1088. However, the court of appeals held that Silva's conflict of interest claim required further proceedings and remanded the case back to the trial court as to that claim alone.

We granted certiorari in this case to address the right to post-conviction counsel and the...