El Paso County District Court No. 02CR1591 Honorable Thomas L. Kennedy, Judge.
Cynthia H. Coffman, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Harvey Law Firm, LLC, Cynthia A. Harvey, Castle Rock, Colorado, for Defendant-Appellant
¶ 1 Everyone agrees that a criminal defendant has a constitutional right to conflict-free counsel. But does this right require a post-conviction court to find that an actual conflict of interest exists whenever trial counsel pursued a strategy, over a defendant's objection, that practically if not legally foreclosed the defendant from exercising his constitutional right to testify?
¶ 2 Chaddrick Levil Thomas appeals the denial, after an evidentiary hearing, of his Crim. P. 35(c) motion alleging that his trial counsel rendered ineffective assistance by pursuing a self-defense theory; once he told counsel that he opposed this theory because he wanted to testify to his innocence, an actual conflict of interest arose; and from that conflict prejudice must be presumed. The post-conviction court ruled that because this disagreement was a matter of strategy, it did not constitute an actual conflict of interest, and Thomas was required to show prejudice. Then the court denied the motion because even assuming that counsel had been ineffective in relying on self-defense, Thomas had not shown prejudice.
¶ 3 Resolving a novel question in Colorado, we agree with the trial court that no actual conflict of interest arose from this strategic disagreement and Thomas was required to show prejudice. Because he failed to do so, we affirm.
¶ 4 Thomas has had three prior appeals. In People v. Thomas, (Colo.App. No. 03CA0309, Oct. 28, 2004) (not published pursuant to C.A.R. 35(f)) (Thomas I), the division reversed his second degree murder conviction for instructional error. Counsel had advanced a theory of actual innocence; Thomas did not testify. On retrial, the same counsel advanced a theory of self-defense; again, Thomas did not testify. In People v. Thomas, (Colo.App. No. 05CA2510, Dec. 6, 2007) (not published pursuant to C.A.R. 35(f)) (Thomas II), the division affirmed his conviction for the same offense.
¶ 5 Then, in People v. Thomas, (Colo.App. No. 09CA1203, June 3, 2011) (not published pursuant to C.A.R. 35(f)) (Thomas III), the division reversed the post-conviction court's summary denial of his Crim. P. 35(c) claim that he had received ineffective assistance of trial counsel because his counsel's self-defense theory "impeded his right to testify" that he had not shot the victim. Citing People v. Bergerud, 223 P.3d 686 (Colo. 2010), the division remanded for an evidentiary hearing. It explained that Thomas's "allegations, if true, would provide a basis for the court to conclude that defense counsel's strategic choice of theory usurped defendant's choice about whether to testify."
¶ 6 At the remand hearing, Thomas and his two trial attorneys testified similarly that before the second trial he had opposed self-defense, and throughout the trial he remained consistent that he wanted to testify to his actual innocence; his attorneys had told him that choosing self-defense was their prerogative; and they told him that once they advanced this defense in opening statement, his testifying to actual innocence would destroy the credibility of the defense. Still, Thomas and his attorneys conceded that this disagreement had not been raised with the trial court before, during, or even after trial. The post-conviction court again denied Thomas relief, this time in a detailed, written order.
II. Standard of Review
¶ 7 The post-conviction court determines the weight and credibility to be given to the testimony of witnesses in a Crim. P. 35(c) hearing. People v. Washington, 2014 COA 41, ¶ 17. When the evidence in the record supports the court's findings, we will not disturb them on appeal. Id. But we review the court's legal conclusions de novo. Id. And, as relevant here, "[w]e review de novo the trial court's determination of whether an actual conflict existed." People v. Hagos, 250 P.3d 596, 613 (Colo.App. 2009).
III. The Post-Conviction Court Did Not Err in Denying Thomas's Crim. P. 35(c) Motion Based on His Failure ...