County District Court No. 10CR4367 Honorable David S. Prince,
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Elizabeth Stovall, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
1 Defendant, Robert Lee Hunt, appeals the district
court's order denying his Crim. P. 35(c) motion for
postconviction relief. We reverse and remand for an
evidentiary hearing on two ineffective assistance of counsel
2 Defendant was charged with first degree "after
deliberation" murder, first degree "extreme
indifference" murder, conspiracy to commit murder,
possession of a weapon by a previous offender, and three
crime of violence (sentencing enhancement) counts. Pursuant
to a plea agreement, defendant pleaded guilty to an added
count of second degree murder and to one of the original
crime of violence counts in exchange for (1) the dismissal of
the remaining charges and (2) a stipulated sentence of
between thirty and forty years imprisonment in the Department
3 At defendant's January 2012 providency hearing, plea
counsel provided the court with the following factual basis
for the second degree murder charge for which defendant was
about to plead guilty:
[O]n July 28, , [defendant] was the victim of a home
invasion, not . . . knowing exactly who were the perpetrators
of the home invasion. [Defendant] along with an[other]
individual [(the shooter)] . . . decided that the people
responsible for the home invasion would be killed.
[Defendant] utilized [the shooter] because [the shooter] had
a weapon. On the night of the murder, [the shooter] told
[defendant] that one of the robbers of the home invasion was
located at [an apartment complex].
They proceeded then to [the apartment complex] . . . [and]
saw an individual standing outside. [The shooter] believed
that to be one of the home invaders so [the shooter] called
[the individual] over to the car.
[Defendant] said, that's not one of the guys that did the
home invasion. However, then [the shooter] had a conversation
with this individual . . . [and] then shot [him].
4 In March and July 2012, defendant wrote two letters to the
district court, asking to withdraw his guilty plea. In his
letters, defendant asserted that (1) he was not guilty of
murder because he had not intended for the shooter to kill
the victim; and (2) his attorney had erroneously advised him
that he could, if tried, be found guilty (and sentenced to
life imprisonment) under a complicity theory.
5 On July 19, 2012, plea counsel filed a motion to withdraw
from the case based on an alleged conflict of interest and
requested the court allow defendant to withdraw his guilty
plea. The motion, which was very short, was based on
defendant's assertion that he had received ineffective
assistance of counsel. On July 30, 2012, the court held a hearing
on the motion; found no conflict of interest between counsel
and defendant; and directed counsel to file, on
defendant's behalf, a Crim. P. 32(d) motion to withdraw
6 Three days later - the day before sentencing - plea counsel
filed the Crim. P. 32(d) motion, in which she noted:
• Defendant had "previously requested to withdraw
his [guilty] plea due to an ineffective counsel/conflict
claim. A conflict hearing was held and the court at that time
determined there was no conflict nor was there a showing that
counsel was ineffective."
• Defendant "contends that he was never fully
advised of the definition of complicity by counsel. [He]
contends that he never understood that complicity required
that he have actual knowledge that the other person intended
to commit all or part of the crime. He also "contends
that he thought being at the scene of the crime was enough
for conviction under a complicity theory" but, after
doing his own research, realizes that "mere presence is
not enough to result in a complicity conviction [sic]."
• Defendant "contends that he had no knowledge that
the codefendant in this case was going to shoot the
victim" and therefore he "could not be found guilty
of murder pursuant to a complicity theory, nor could he be
convicted as the principal since he did not fire the weapon
that killed the victim."
• If defendant "fail[ed] to understand the
requirements of complicity" as he contended, then he
"did not have an adequate understanding of what he was
pleading to [and] . . . has a fair and just reason to
withdraw his plea."
7 Without addressing the Crim. P. 32(d) motion, the district
court sentenced defendant to a term of forty years
imprisonment in the custody of the Department of Corrections.
8 Subsequently, defendant filed two pro se Crim. P. 35(c)
motions for postconviction relief based on claims of
ineffective assistance of plea counsel. As pertinent here,
defendant alleged that he had pleaded guilty based on
counsel's incorrect advice that he could be found guilty
of murder as a complicitor simply because he was present when
a person he had not intended to be killed was killed.
9 The district court appointed defendant new counsel, who
subsequently filed a supplemental motion (1) expounding on
defendant's pro se arguments and (2) asserting that plea
counsel was also ineffective in failing to advise defendant
that he could appeal the apparent denial of the Crim. P.
10 Without holding a hearing, the court denied the Crim. P.
35(c) motions for postconviction relief. In its written
order, the court found, in pertinent part, that
• under the facts recited at the providency hearing, the
law of complicity, and the doctrine of transferred intent
applied in People v. Candelaria, 107 P.3d 1080,
1091-92 (Colo.App. 2004), affd in part and rev'd in
part, 148 P.3d 178 (Colo. 2006), counsel's advice
was accurate; and
• even assuming plea counsel failed to advise defendant
of his right to appeal from a denial of a motion to withdraw
guilty plea, defendant was not entitled to relief because he
"identifie[d] no plausible appellate challenge to the
denial of his request to withdraw his plea."
Ineffective Assistance of Plea Counsel
11 On appeal, defendant contends that the court erred in
summarily denying his postconviction motion. Specifically, he
asserts that he was at least entitled to a hearing on his
assertions that plea counsel was ineffective for (1)
inaccurately advising him of the requisite elements of the
offense to which he pleaded and (2) failing to advise him
that he could appeal the court's denial of his Crim. P.
32(d) motion. We agree.
12 Ineffective assistance of counsel may constitute an
adequate ground for relief under both Crim. P. 32(d) and
35(c). People v. Lopez, 12 P.3d 869, 871 (Colo.App.
13 To prevail on a claim of ineffective assistance of
counsel, a defendant must establish that (1) counsel's
performance fell below the level of reasonably competent
assistance demanded of attorneys in criminal cases and (2)
the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Dunlap v. People, 173 P.3d 1054, 1062-63
14 A motion raising ineffective assistance of counsel may be
denied without a hearing "if, but only if, the existing
record establishes that the defendant's allegations, even
if proven true, would fail to establish one or the other
prong of the Strickland test." Ardolino v.
People, 69 P.3d 73, 77 (Colo. 2003).
If a criminal defendant has alleged acts or omissions by
counsel that, if true, could undermine confidence in the
defendant's conviction or sentence, and the motion,
files, and record in the case do not clearly establish that
those acts or omissions were reasonable strategic choices or
otherwise within the range of reasonably effective
assistance, the defendant must be given an opportunity to
prove they were not.