People v. Delgado

442 P.3d 1021

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Lupe DELGADO, Defendant-Appellant.

Court of Appeals No. 17CA0102

Colorado Court of Appeals, Division V.

Announced April 18, 2019

Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

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

Opinion by JUDGE J. JONES

¶1 Defendant, Lupe Delgado, appeals the district court’s order summarily denying his Crim. P. 35(c) motion based on ineffective assistance of counsel. We reverse the order in part and remand the case for a hearing on defendant’s claim that his attorney incorrectly advised him about his sentencing exposure, leading him to reject a favorable plea offer. In so deciding, we conclude that the United States Supreme Court’s decisions in Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), overruled the Colorado Supreme Court’s decision in Carmichael v. People , 206 P.3d 800 (Colo. 2009), on two points: (1) the test for showing prejudice where an attorney incorrectly advises a defendant in plea negotiations, resulting in the defendant rejecting a plea offer; and (2) the remedies available where a defendant in these circumstances shows both ineffective assistance and prejudice. Otherwise, we affirm.

I. Background

¶2 In 2002, the People charged defendant with aggravated incest and three counts of sexual assault on a child by one in a position of trust. He hired a private attorney to represent him in that case, but that attorney withdrew several months before trial. Defendant couldn’t pay another private attorney but didn’t qualify for a public defender. Although he repeatedly said that he wasn’t qualified to represent himself and didn’t want to proceed pro se, he went to trial without an attorney. A jury convicted him of all charges.

¶3 The court appointed a public defender to represent defendant for sentencing. According to defendant’s Rule 35(c) motion, the attorney told him that the prosecutor had offered a fixed, ten-year sentence to the custody of the Department of Corrections (DOC), but the offer wasn’t favorable since the maximum prison term he could get was fifteen years.¹ Relying on this advice, defendant rejected the offer. The court sentenced him to an indeterminate fifteen years to life sentence for aggravated incest and concurrent fifteen-year sentences on the other charges. He appealed.

¶4 A division of this court reversed, holding that defendant’s waiver of counsel was not knowing, voluntary, and intelligent. A new trial ensued, after which a jury once again convicted defendant of all charges. The court again sentenced defendant to an aggregate term of fifteen years to life in DOC custody. He unsuccessfully appealed.

¶5 Defendant later filed a Crim. P. 35(c) motion, asserting ten claims of ineffective assistance of counsel and requesting a hearing on those claims. The district court denied the motion without a hearing.

II. Discussion

¶6 We review a summary denial of a Rule 35(c) motion de novo. People v. Gardner , 250 P.3d 1262, 1266 (Colo. App. 2010).

¶7 To prevail on a claim of ineffective assistance of counsel under Rule 35(c), a defendant must show that (1) his attorney’s performance was deficient and (2) the attorney’s deficient performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Dunlap v. People , 173 P.3d 1054, 1062 (Colo. 2007). An attorney’s performance is deficient if it falls "below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. To prove that such deficient performance prejudiced him, the defendant must show "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. If the defendant establishes those elements and meets all other requirements under Rule 35(c), the district court "shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant." Crim. P. 35(c)(3).²

¶8 A defendant requesting postconviction relief under Rule 35(c) may be given a hearing to develop the record on his claims. See § 18-1-401, C.R.S. 2018; Ardolino v. People , 69 P.3d 73, 77 (Colo. 2003). But a court may deny the motion without a hearing if the motion, files, and record clearly establish that the defendant is not entitled to relief; if the allegations, even if true, don’t provide a basis for relief; or if the claims are bare and conclusory in nature and lack supporting factual allegations. People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005).

¶9 Defendant appeals the district court’s summary denial of three of his claims: (1) counsel failed to correctly advise him about the possible sentence after the first trial; (2) counsel gave him unsound advice that he shouldn’t testify in the second trial since he was guaranteed to succeed on appeal; and (3) counsel failed to investigate an aspect of the victim’s past.³ We address each in turn.

A. Plea Offer and Sentencing Advice

¶10 Defendant alleges that, after his first trial, but before sentencing, the prosecutor extended a "plea deal" of a determinate ten-year sentence to DOC custody. His public defender, who had been appointed to represent him at sentencing, told him of the offer but advised him that it wasn’t favorable because the maximum prison sentence he could receive was fifteen years. Relying on this advice, defendant declined the offer. He subsequently received an indeterminate sentence of fifteen years to life in DOC custody on the aggravated incest count. Although he successfully appealed his convictions, the district court again imposed an indeterminate sentence of fifteen years to life on the aggravated incest count after the second trial.

¶11 Defendant asserts in his Rule 35(c) motion (and reasserts on appeal) that his attorney’s incorrect advice regarding his sentencing exposure constituted ineffective assistance of counsel.⁴ He claims that, had he been granted a hearing, he would have presented evidence that, but for his attorney’s erroneous advice, he would have accepted the offer of a determinate ten-year sentence. We agree with defendant that the district court should hold a hearing on this claim.

¶12 In summarily denying this claim, the district court reasoned that defendant’s assertions "stretch the limits of credulity and make no sense." Because the court didn’t think it rational that the prosecutor would offer defendant a ten-year determinate sentence after the first trial had resulted in convictions, and didn’t understand how defendant’s decision to reject such an offer would impact him after the case was reversed on appeal, the court ruled that his claim lacked legal or factual merit.

¶13 But we conclude that defendant asserted facts that, if true, would provide a basis for relief under Rule 35(c). See White v. Denver Dist. Court , 766 P.2d 632, 635 (Colo. 1988).

1. Ineffective Assistance

¶14 Defendant’s claim concerning the ineffective assistance prong of the Strickland test has two factual predicates: (1) the prosecutor offered a ten-year determinate sentence after the first trial but before sentencing and (2) defense counsel told defendant that the prosecutor’s offer wasn’t favorable because the most he faced was a fifteen-year determinate sentence.⁵ The district court summarily rejected the first factual predicate and therefore didn’t address the second.

¶15 The district court’s assumption that the prosecutor wouldn’t have made the post-verdict, presentence offer alleged by defendant lacks support in the record. Post-guilty-verdict plea offers aren’t unheard of. And the prosecutor may have had concerns that the verdicts wouldn’t hold up on appeal. (As it turns out, any such concerns would have been well founded.) Moreover, it appears undisputed that the prosecutor offered an eleven-year determinate sentence after reversal of the verdicts from the first trial and before the second trial. Thus, we conclude that the district court erred in summarily rejecting this part of the factual predicate for defendant’s ineffective assistance claim.

¶16 We turn, then, to the second factual predicate — counsel’s incorrect advice. If defendant’s attorney told defendant the longest prison sentence he could get based on the convictions from the first trial was a determinate sentence of fifteen years, that was incorrect advice: the aggravated incest conviction required an indeterminate sentence of at least four years. See §§ 18-1.3-401(1)(a)(V)(A), 18-1.3-1004(1)(a), 18-6-302, 18-6-303(3), C.R.S. 2002.

¶17 Failure to correctly advise a defendant about his sentencing exposure deprives the defendant of the opportunity to make a reasonably informed decision whether to accept or reject an offer and constitutes deficient performance under Strickland . See Carmichael , 206 P.3d at 806 (counsel’s failure to tell the defendant that he faced an indeterminate sentence if he went to trial and lost was constitutionally deficient performance). We therefore conclude that the second factual predicate for defendant’s claim can’t be summarily rejected.

¶18 It follows from all this that defendant alleged facts that, if proved, would entitle him to relief based on ineffective assistance of counsel.

2. Prejudice

¶19 In Carmichael , the supreme court held that to show prejudice in a rejected plea offer context, the defendant must show a reasonable probability that he would have accepted the offer if his counsel had correctly advised him. 206 P.3d at 807. Defendant alleged that he would have accepted the ten-year determinate plea offer if his counsel had advised him, correctly, that he faced an indeterminate sentence....