Stroup v. People
| Decision Date | 27 December 1982 |
| Docket Number | 80SC362,Nos. 81SC15,s. 81SC15 |
| Citation | 656 P.2d 680 |
| Parties | Donald STROUP, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Donald STROUP, Respondent. |
| Court | Colorado Supreme Court |
Marks & Olom, Jonathan L. Olom, Denver, for Donald Stroup.
J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for The People of the State of Colorado.
We granted certiorari to review the judgment of the Colorado Court of Appeals in People v. Stroup, 624 P.2d 913 (Colo.App.1980), affirming the trial court's denial of the defendant's motions under Crim.P. 35(b) to set aside his conviction for first degree assault. We hold that, as the defendant contends, his constitutional right to the effective assistance of counsel has been violated. Accordingly, we reverse the judgment of the court of appeals and direct that the case be remanded for resentencing.
After a jury found the defendant, Donald Stroup, guilty of first degree assault, section 18-3-202(1)(a), C.R.S.1973 (1978 Repl.Vol. 8), and determined that it was a crime of violence, section 16-11-309, C.R.S.1973 (1978 Repl.Vol. 8) (1982 Supp.), the Mesa County District Court sentenced him to a term of fifteen to twenty years imprisonment. The defendant did not appeal. Several months later Stroup filed a pro se motion pursuant to Crim.P. 35(b) 1 seeking to set aside his conviction, and thereafter the public defender filed an additional motion under that rule on the defendant's behalf. The grounds alleged for relief were, among others, that the defendant had been denied effective assistance of counsel contrary to the guarantees in the United States and Colorado Constitutions and that the trial court erred in submitting the crime of violence count to the jury at the same time as the assault count.
After hearing, the trial court initially granted the defendant's motions on the ground that he had been denied effective assistance of counsel, and ordered a new trial. The People moved for reconsideration of the new trial order based on newly discovered evidence, and the trial court set that motion for hearing. After taking additional evidence, the trial court rescinded its prior findings, revoked its order granting a new trial, and denied the Crim.P. 35(b) motions. The defendant appealed.
The Colorado Court of Appeals held that the defendant had received clearly erroneous advice from his counsel in connection with his decision not to appeal his conviction but concluded that the judgment should not be reversed because Stroup had shown no meritorious ground for appeal. However, the court of appeals vacated the sentence and remanded for resentencing on the first degree assault conviction alone, without increased punishment for a crime of violence, holding that the trial court committed error in failing to submit a special interrogatory to the jury on the crime of violence sentencing allegation. People v. Stroup, supra.
We granted certiorari petitions filed by the defendant and the People to consider the issues of whether the defendant was denied the effective assistance of counsel and whether the trial court erred in submitting a general verdict form to the jury on the violent crime count. We hold that the defendant had a meritorious ground for appeal but that he was deprived of effective assistance of counsel in connection with his decision whether to pursue an appeal. We remand for resentencing under the sentencing guidelines for second degree assault to correct the effect of prejudicial evidence erroneously received. Additionally, we find that the defendant was not prejudiced by the trial court's use of a general verdict form on the crime of violence count and that the special interrogatory requirement should not be applied retroactively in this case.
The charges against the defendant stem from an assault on his ex-wife committed during the early morning hours of April 17, 1977. On that morning, the defendant broke into the victim's home and held her and their three children captive for several hours. During this time he brutally and continually assaulted his ex-wife with his hands, feet, and a butcher knife, while the children were required to watch. The defendant rubbed salt into his ex-wife's wounds and forced one of the children to do so also. During the course of the assault, Stroup threatened the victim several times that he would kill her. The victim suffered numerous painful bruises, cuts and contusions, but eventually recovered from her injuries.
Stroup was charged with first degree assault and commission of a crime of violence, and he retained counsel for his defense. At the Crim.P. 35(b) hearing the defendant's trial counsel gave the following account of his litigation strategy. Prior to trial, the district attorney offered to lower the charge to second degree assault in exchange for the defendant's plea of guilty. Defense counsel discussed his assessment of the case with Stroup and his brother, and they jointly decided not to accept the plea bargain. The central consideration in this decision apparently was counsel's evaluation that, in going to trial, the defendant ran only a minimal risk of conviction for first degree assault because the prosecution would be unable to prove the essential element of "serious bodily injury" to the victim. Defense counsel believed that a conviction for second degree assault was the likely outcome at trial, but that a third degree assault conviction was possible if the jury credited Stroup's proposed testimony that a knife wound between the victim's eyes occurred by accident.
Defense counsel hoped to cross-examine the state's medical experts effectively at trial but did not plan to present independent medical evidence. He made this decision primarily because of his belief--formed without consulting medical experts--that the prosecution could not prove serious bodily injury. At trial, the prosecution's principal medical witness testified on direct examination that the stab wound to the victim's forehead involved a substantial risk of death. Over defense counsel's strenuous objection, the doctor was allowed to state this opinion and to testify that it was based on the fact that the knife could have entered the victim's brain had the point of impact been only a fraction of an inch to the left or right of the actual wound. Defense counsel argued to the court, out of the hearing of the jury, that such testimony was not relevant to the issue of whether the victim suffered serious bodily injury within the statutory definition. Stroup's attorney was also surprised by the doctor's further testimony on direct examination that the victim had suffered shock involving a substantial risk of death, but defense counsel did not seek a continuance in order to obtain a medical expert to rebut this evidence.
At the close of evidence, the trial court instructed the jury on the elements of first degree, second degree, and third degree assault, and on the definitions of "serious bodily injury" and "bodily injury." The court also instructed the jury on the meaning of a "crime of violence" under section 16-11-309. The jury was given two general verdict forms, and returned verdicts of guilty of first degree assault and committing a violent crime. The defendant was then sentenced pursuant to the sentencing guidelines in the violent crime statute.
After conviction and sentencing, defense counsel discouraged Stroup from appealing 2 even though the attorney was firmly of the opinion that the trial court had committed reversible error by overruling his objection to the doctor's testimony about the consequences to the victim if the knife wound to the forehead had been in a slightly different location. Counsel advised his client, however, that an appellate court would be unlikely to reverse his conviction because the defendant was a very unsympathetic candidate for a new trial due to the shocking nature of the crime committed. 3
In reviewing the trial court's denial of Stroup's Crim.P. 35(b) motion, the court of appeals held that, while the defendant received adequate representation at trial, his attorney gave him clearly erroneous advice when he told Stroup that he was unlikely to be successful on appeal because of the nature of the crime. However, the court did not grant a new trial because the defendant had not shown that a meritorious ground for appeal existed sufficient to justify the granting of postconviction relief pursuant to Crim.P. 35(b). The court held that, while the alleged error in admitting the testimony of the state's medical expert constituted a meritorious ground for appeal on its face, the evidence concerning the victim's condition of shock was independently sufficient to support the defendant's conviction of first degree assault.
We agree with the court of appeals that the defendant was denied the effective assistance of counsel 4 when his attorney advised him that his conviction probably would not be reversed despite the trial court's error. However, we do not agree with the analysis that this constitutional error was harmless. For this reason the judgment of the court of appeals must be reversed and, as developed later in this opinion, we conclude that the appropriate remedy is to remand for resentencing for second degree assault and crime of violence. We do not reach the question of whether the defendant was denied the effective assistance of counsel during the course of the trial. 5
The defendant's right under the Sixth Amendment to the United States Constitution to the assistance of counsel in defending against a criminal charge requires that he receive "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." People v. Jacobs, 198 Colo. 75, 79, 596 P.2d 1187, 1189 (1979) (quoting from United States v....
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