City and County of Denver District Court No. 01CR2950 Honorable Shelley I. Gilman, Judge
Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Allison Ruttenburg, Denver, Colorado, for Defendant-Appellant
Jones and Roy [*], JJ,
JUDGE FOX J.
¶1 Defendant, Franco Romero, appeals from an order denying his motion for postconviction relief pursuant to Crim. P. 35(c) without an evidentiary hearing. We affirm.
¶2 Romero was indicted for first degree murder for shooting A.S., a jury convicted him as charged, and he was thereafter sentenced to life in prison without the possibility of parole. Romero appealed his conviction and sentence, and a division of this court affirmed. People v. Romero, (Colo.App. No. 04CA1221, Nov. 9, 2006) (not published pursuant to C.A.R. 35 (f)). The Colorado Supreme Court denied Romero's petition for a writ of certiorari. Romero v. People, (Colo. No. 07SC51, May 14, 2007) (unpublished order). Romero then filed a Crim. P. 35(c) motion, which the People contested and the postconviction court denied without a hearing.
¶3 Romero appeals the court's order denying his Crim. P. 35 (c) motion, contending that attorneys F.G., D.J., and R.C. ineffectively assisted him. We conclude that Romero was not entitled to a hearing on this claim.
II. Additional Background on Romero's Attorneys
¶4 The record reflects that attorney F.G. Represented Romero in a prior, unrelated drug case. This representation ended when Romero violated parole and was sentenced to six years in Department of Corrections' custody.
¶5 F.G. next briefly represented Romero during an interview with two detectives at the police station. The interview related to the events in this case but occurred before Romero's indictment. Following Romero's arrest, F.G. visited him in jail several times, occasionally identifying himself as Romero's attorney in the jail visitation log. However, Romero never retained F.G. to represent him, and F.G. never entered an appearance or participated in any court proceedings related to this case.
¶6 Alternate defense counsel D.J. and R.C. were appointed after Romero's indictment and served as Romero's attorneys of record during all pretrial and trial proceedings.
III. Standard of Review
¶7 Crim. P. 35(c) proceedings are intended to prevent injustices after conviction and sentencing. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996). A Crim. P. 35(c) motion may be dismissed without a hearing if "the motion, files, and record in the case clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief." Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). For ineffective assistance of counsel claims, bare allegations of incompetency of counsel are insufficient to entitle a defendant to a hearing. See Moore v. People, 174 Colo. 570, 571, 485 P.2d 114, 115 (1971).
¶8 Review of a summary denial of a postconviction motion presents a mixed question of law and fact. People v. Stovall, 2012 COA 7, ¶ 18. We review conclusions of law de novo, but we defer to findings of fact if supported by the record. Id.
IV. Attorney F.G.
¶9 Romero contends that F.G. rendered ineffective legal assistance when he (1) represented Romero during a pre-indictment police interview and (2) visited Romero several times in jail and offered him legal advice. We address and reject each contention.
A. Pre-Indictment Advice
¶10 Romero contends that F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. We reject this contention because Romero's right to representation had not yet attached.
1. Legal Standards
¶11 The Fifth and Sixth Amendments to the United States Constitution provide criminal defendants a right to counsel, People v. Vickery, 229 P.3d 278, 280 (Colo. 2010), and this right includes the right to the effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984). The Fifth and Sixth Amendments' protections, however, are not the same. Vickery, 229 P.3d at 280. The Fifth Amendment right to counsel attaches when a defendant is subjected to custodial interrogation, regardless of whether charges have been filed. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A custodial interrogation occurs when a person has been taken into custody or deprived of his freedom of action in some significant way. Id. In contrast, the Sixth Amendment right to counsel attaches only once charges are filed. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
¶12 The postconviction court concluded that Romero's right to representation had not yet attached under either the Fifth or Sixth Amendments when he appeared with F.G. for a police interview and polygraph test. We agree.
¶13 Romero's Fifth Amendment right to counsel had not attached because the police interview was not custodial. See Miranda, 384 U.S. at 444. Romero was not under arrest, and his freedom was not restricted in any significant way. See id. At a pretrial hearing, the trial court found that Romero voluntarily submitted to the interview, the detectives made no threats or promises to Romero in exchange for his cooperation, and Romero knew he was permitted to leave the interview at any time. Because the record adequately supports these findings, we decline to disturb them on appeal. See Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).
¶14 Romero's Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. See McNeil, 501 U.S. at 175. To the contrary, the interrogation and polygraph occurred over a year before Romero was indicted.
¶15 Accordingly, Romero's ineffective assistance of counsel claim with regard to F.G.'s pre-indictment representation fails.
B. Post-Indictment Advice
¶16 Romero next contends that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. In so doing, F.G. failed to tell Romero that F.G. represented the codefendant's interests, and failed to mention that F.G. had a pending criminal investigation against him. We reject Romero's claims because F.G. never represented Romero during any critical stages in this case, helped prepare his defense, or otherwise appeared on his behalf, and thus, the constitutional guarantee of effective assistance did not apply.
1. Legal Standards
¶17 The Sixth Amendment right to effective assistance of counsel guaranteed under Strickland, 466 U.S. at 686, "does not include the right to receive good advice from every lawyer a criminal defendant consults about his case." United States v. Martini, 31 F.3d 781, 782 (9th Cir. 1994). Rather, for a lawyer's advice to constitute ineffective assistance of counsel, it must come from a lawyer who represents the criminal defendant, helps prepare his defense, or otherwise appears on the defendant's behalf in the case. Id. at 782; see Davis v. People, 871 P.2d 769, 772–79 (Colo. 1994) (applying Strickland standard to defendant's attorney of record); Hagos v. People, 2012 CO 63, ¶¶ 16–28 (same); see also United ...