People v. Smith

541 P.3d 1191

2024 CO 3

2024 CO 3

The PEOPLE of the State of Colorado, Petitioner,

v.Anthony Robert SMITH, Respondent.

Supreme Court Case No. 22SC562

Supreme Court of Colorado.

January 22, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 19CA2359

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Teodorovic Law, P.C., Adrienne R. Teodorovic, Windsor, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 We granted certiorari to consider whether (1) a division of the court of appeals reversibly erred in determining that Anthony Robert Smith preserved all of the claims that he had raised in a pro se Crim. P. 35(c) motion, despite his not pursuing some of those claims in the later briefing on his motion and at the postconviction hearing; (2) counsel may abandon some of a defendant’s pro se Crim. P. 35(c) claims without first obtaining the defendant’s informed consent; and (3) abandonment of individual postconviction claims requires a showing of intent to do so.¹

¶2 We now conclude that Smith abandoned the claims that he ceased pursuing and therefore the division below erred in determining that all of Smith’s pro se claims were preserved. We further conclude that because the "captain of the ship" doctrine allocates to counsel the authority to make strategic decisions, including which claims to pursue, counsel may abandon some, although not all, of a defendant’s pro se Crim. P. 35(c) claims without the client’s informed consent. Finally, we note that because the record in this case establishes that Smith intended to abandon the pro se claims that he had ceased pursuing, we need not decide whether the abandonment of individual postconviction claims requires a showing of intent to abandon such claims.

¶3 Accordingly, we reverse the judgment of the division below.

I. Facts and Procedural History

¶4 Smith was convicted of one count of sexual assault on a child by one in a position of trust as part of a pattern of sexual abuse; three counts of sexual assault on a child by one in a position of trust, victim under fifteen years old; and four counts of promotion of obscenity to a minor. He appealed his conviction, and a division of the court of appeals affirmed. People v. Smith, No. 14CA85, 2015 WL 9584887 (Dec. 31, 2015).

¶5 Thereafter, Smith filed a pro se Crim. P. 35(c) motion, asserting ten specific claims of ineffective assistance of counsel, a placeholder ineffective assistance claim for any issue discovered by to-be-appointed postconviction counsel, a claim asserting newly discovered evidence, and a claim alleging prosecutorial misconduct. In this motion, Smith requested court-appointed counsel and a hearing on his claims.

¶6 Upon review of Smith’s pro se filing, the postconviction court ordered that a copy of Smith’s motion be served on the public defender’s office and that that office respond as to whether it intended to enter an appearance. The court further ordered that the public defender’s office identify whether any conflict existed, request any additional time needed to investigate, and "add any claims the Public Defender finds to have arguable merit."

¶7 Several months later, counsel from outside the public defender’s office ("appointed counsel") entered her appearance on Smith’s behalf, and appointed counsel subsequently filed a pleading that she titled, "Supplemental Motion for Post-Conviction Relief" ("counsel’s motion"). Counsel’s motion (1) developed two of Smith’s pro se ineffective assistance of counsel claims and asserted an additional ineffective assistance claim; (2) raised a new cumulative error claim, arguing that "the cumulative effect of all of the alleged errors by [Smith’s] trial and appellate counsel amount[ed] to ineffective assistance of counsel"; and (3) clarified that Smith was challenging only the effectiveness of the attorney who had represented him at trial and on appeal, and not that of any of the attorneys who had represented him at other times during the pendency of his case. Counsel’s motion did not present any argument regarding Smith’s remaining pro se claims. Nor did it indicate that Smith was continuing to pursue those claims.

¶8 The prosecution filed an answer to counsel’s motion addressing only the claims raised in that motion. Smith then filed a reply, which likewise addressed only the claims raised in counsel’s motion. Notably, the reply did not mention the omitted pro se claims or in any way indicate an intent to continue to pursue them. To the contrary, in arguing Smith’s claim for cumulative error, the reply stated, "The cumulative effect of all of these errors by Mr. Smith’s trial and appellate counsel [i.e., the errors previously discussed in the reply] amount to ineffective assistance of counsel." (Emphasis added.)

¶9 Thereafter, the postconviction court held an evidentiary hearing at which Smith’s trial and appellate counsel and one other witness testified. During this hearing, the court and both parties focused exclusively on just one of the claims raised in counsel’s motion. Smith did not elicit any testimony or make any argument regarding either the remaining claims in counsel’s motion or the omitted pro se claims.

¶10 At the conclusion of the hearing, after the parties had completed their arguments and the court took the matter under advisement and wished counsel a good day, Smith’s counsel asked, "Your Honor, could I clarify that we’ll get a written ruling on all the claims?" The court replied, "Yes."

¶11 The postconviction court subsequently issued a written order addressing and denying all of the claims raised in counsel’s motion, finding that Smith’s trial and appellate counsel’s actions did not fall below an objective standard of reasonableness. In a footnote, the postconviction court also determined that because counsel’s motion incorporated only some of the claims that Smith had made in his pro se motion—and the prosecution’s answer and Smith’s reply addressed only the claims asserted in counsel’s motion—Smith had waived the omitted pro se claims.

¶12 Smith appealed, and in a published opinion, a division of the court of appeals reversed, concluding, in pertinent part, that appointed counsel did not waive any of Smith’s pro se claims by omitting them from counsel’s motion. People v. Smith, 2022 COA 56, ¶ 1, 516 P.3d 938, 940. In support of this conclusion, the division opined that counsel’s motion was captioned a "supplemental motion" and thus merely added to, but did not replace, Smith’s pro se claims. Id. at ¶ 15, 516 P.3d at 942. The division further observed that Crim. P. 35(c)(3)(V) allowed appointed counsel to "add any claims" that she believed had merit, and she was not required to reassert issues raised in Smith’s pro se motion to preserve them. Id. at ¶¶ 13, 15, 516 P.3d at 942. And the division stated that although counsel is generally "captain of the ship" and may decide which issues to pursue on appeal, a postconviction court may not deny relief for lack of merit under the guise of granting a defense attorney’s motion to dismiss a defendant’s postconviction motion. Id. at ¶ 17, 516 P.3d at 942 (citing Dooly v. People, 2013 CO 34, ¶ 10, 302 P.3d 259, 263). Doing so, the division reasoned, would amount to allowing appointed counsel to serve as the court’s fact-finder, which would be improper, and "neither counsel nor the postconviction court may dismiss a defendant’s claims without informed consent." Id. at ¶ 17, 516 P.3d at 942–43 (citing Dooly, ¶ 10, 302 P.3d at 263).

¶13 The division thus reversed the portion of the postconviction court’s order finding a waiver of some of Smith’s pro se claims and remanded the case for an independent evaluation of those claims. Id. at ¶ 18, 516 P.3d at 943.

¶14 Smith and the People cross-petitioned for certiorari review, and we granted the People’s petition.

II. Analysis

¶15 We begin by discussing the applicable standard of review. We then turn to the issues on which we granted certiorari.

A. Standard of Review

[1] ¶16 In Crim. P. 35(c) proceedings, we review the postconviction court’s legal conclusions de novo but defer to its factual findings if they are supported by the record. Medina v. People, 2023 CO 46, ¶ 15, 535 P.3d 82, 86; People v. Corson, 2016 CO 33, ¶ 25, 379 P.3d 288, 293–94; see also People v. Thompson, 2020 COA 117, ¶ 24, 485 P.3d 566, 571 (noting that an appellate court reviews a postconviction court’s factual findings for clear error and its legal conclusions de novo).

B. Abandonment of Pro Se Claims

[2] ¶17 The People first contend that the division erred in concluding that Smith did not waive his omitted pro se Crim. P. 35(c) claims. In the People’s view, the postconviction court correctly found that Smith had waived those claims. We conclude that Smith abandoned them.

[3] ¶18 The terms "waiver" and "abandonment," although often used interchangeably, concern distinct forms of procedural default. We have defined "waiver" as "the intentional relinquishment of a known right or privilege." People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902. Abandonment, in contrast, typically arises from a party’s decision not to pursue or reassert a claim that the party had raised previously. See, e.g., People v. Delgado, 2019 COA 55, ¶ 9 n.3, 442 P.3d 1021, 1025 n.3 (deeming abandoned, and thus declining to address, claims that the defendant had raised in his Crim. P. 35(c) motion but then did not discuss on appeal); see also People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (concluding that the defendant’s failure to reassert on appeal all of the claims on which the district court had ruled constituted a conscious relinquishment of those claims).

¶19 Here, the record...