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People v. Hunt

Court of Appeals of Colorado, First Division

June 16, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Robert Lee Hunt, Defendant-Appellant.

         El Paso County District Court No. 10CR4367 Honorable David S. Prince, Judge

          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

          DAILEY JUDGE

         ¶ 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 claims.

         I. Background

         ¶ 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 of Corrections.

         ¶ 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, [2010], [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.[1] 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 guilty plea.

         ¶ 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. 32(d) motion.[2]

         ¶ 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."

         II. 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. 2000).[3]

         ¶ 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 (Colo. 2007).

         ¶ 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.

Id.

         A. ...


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