Douglas County District Court No. 00CR100 Honorable Richard B. Caschette, Judge
John W. Suthers, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Alison L. Ruttenberg, Boulder, Colorado, for Defendant-Appellant.
Casebolt and Sternberg [*] , JJ., concur.
¶ 1 Defendant, Glenn Robert Fritts, appeals the sentences imposed on resentencing after the postconviction court vacated his original sentences under Crim. P. 35(a). He contends that the court erred in denying his request for appointment of counsel at the resentencing hearing and in imposing consecutive sentences on resentencing. We affirm.
¶ 2 Defendant was charged with sixteen counts of sexual-assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life.
¶ 3 In 2007, the Colorado Supreme Court decided Vensor v. People, holding that "the lower term of a sex offender's indeterminate sentence must be fixed according to the provisions of the determinate sentencing scheme of section 18-1.3-401[, C.R.S.]." 151 P.3d 1274, 1280 (Colo. 2007). Consequently, the lower term of a sex offender's indeterminate sentence can exceed the presumptive range of section 18-1.3-401, C.R.S. 2013, only if the sentencing court finds extraordinary aggravating circumstances. Id. (citing § 18-1.3-401(6)).
¶ 4 In 2012, defendant filed a Crim. P. 35(a) motion to correct an illegal sentence. Defendant argued that because the lower term of his sentence (twenty years on each count) exceeded the presumptive sentencing range of section 18-1.3-401 and the sentencing court had made no finding of aggravating circumstances, his sentence was illegal under Vensor. Defendant also requested that an attorney be appointed to represent him at any resentencing hearing.
¶ 5 The postconviction court issued an order partially granting defendant's Crim. P. 35(a) motion. It vacated his sentence based upon Vensor but denied defendant's request for appointment of counsel. In explaining its decision to deny the request for counsel, the court stated that "a defendant has no federal or state constitutional right to counsel in a postconviction motion" and that there is no statutory right to counsel in Colorado for Crim. P. 35(a) motions.
¶ 6 In September 2012, the postconviction court held a resentencing hearing at which defendant was represented by privately-retained counsel, paid for by his relatives. At the conclusion of the hearing, the court sentenced defendant to two consecutive sentences of ten years to life.
II. Right to Counsel
¶ 7 Defendant argues that the postconviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim. P. 35(a) motion. We agree that defendant may have had a right to appointed counsel, and that the court erred in ruling otherwise, but we conclude that the error was harmless beyond a reasonable doubt.
¶ 8 "Defendants have a constitutional right to the assistance of counsel at all critical stages of trial." People v. Munsey, 232 P.3d 113, 125 (Colo.App. 2009) (citing U.S. Const. amends. VI, XIV; Colo. Const. art. 2, § 16). A critical stage of a criminal proceeding is one "where there exists more than a 'minimal risk' that the absence of the defendant's counsel might impair the defendant's right to a fair trial." Key v. People, 865 P.2d 822, 825 (Colo. 1994).
¶ 9 There is no constitutional right to postconviction counsel under either the United States Constitution or the Colorado Constitution. Silva v. People, 156 P.3d 1164, 1167 (Colo. 2007). There is a limited statutory right in Colorado to postconviction counsel, at least for meritorious Crim. P. 35(c) motions. Id. at 1168. However, we need not decide whether this limited statutory right to postconviction counsel extends generally to Crim. P. 35(a) motions. To the extent that an order granting a Crim. P. 35(a) motion requires, as it did here, resentencing of a defendant, the defendant has a constitutional ...