and County of Denver District Court No. 87CR1542 Honorable
Elizabeth A. Starrs, Judge.
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough,
Senior Assistant Attorney General, Denver, Colorado, for
M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for
1 Defendant, William Daniel Hardin, appeals the
postconviction court's long-awaited order denying his
Crim. P. 35(c) motion for postconviction
relief. We affirm.
2 Hardin was accused of robbing three men, Isaac Fisher,
Victor Irving, and Lloyd Rhodes, and of killing two of the
men, Fisher and Irving. The prosecution charged Hardin with
one count of aggravated robbery for the robbery of all three
men and with two counts each of felony murder and murder
after deliberation with respect to the killings of Fisher and
Irving. When Hardin's 1988 trial concluded, the jury
found him guilty by separate verdict forms of two counts of
aggravated robbery regarding Irving and Rhodes and two counts
each of felony murder and murder after deliberation with
respect to Fisher and Irving. The jury acquitted Hardin of
the aggravated robbery count with respect to Fisher.
3 The trial court entered a judgment of conviction and
sentenced Hardin to consecutive terms of imprisonment of
sixteen years for each aggravated robbery conviction and life
for each felony murder conviction. It did not sentence Hardin
on the murder after deliberation convictions.
4 Several months after the trial, Hardin filed a notice of
appeal regarding the judgment of conviction. Soon after, he
requested and was granted a limited remand to pursue an
ineffective assistance claim, pursuant to Crim. P. 35(c),
concerning his trial counsel. To avoid a conflict of
interest, the public defender's office was allowed to
withdraw from the postconviction proceedings and the appeal.
In granting the remand in 1991, a division of this court
ordered that the postconviction proceedings "be done
with all due speed."
5 Over the next six years, the postconviction court appointed
a succession of private attorneys to represent Hardin; they
all withdrew before resolution of the proceedings. The
postconviction court repeatedly set the matter, only to later
vacate the settings. Hardin repeatedly expressed frustration
with his legal representation and with his appointed
attorneys' lack of action in the postconviction court and
in this court.
6 A division of this court eventually vacated the limited
remand and decided Hardin's direct appeal in 1997, about
ten years after Hardin committed the underlying crimes.
See People v. Hardin, (Colo.App. No. 88CA1898, Dec.
18, 1997) (not published pursuant to C.A.R. 35(f))
(Hardin I). That division affirmed Hardin's
convictions, but it remanded with instructions for the trial
court to vacate the felony murder conviction concerning
Irving's death, enter a judgment of conviction for the
count of murder after deliberation concerning Irving's
death, and resentence Hardin accordingly. Id. That
division also concluded that Hardin's ineffective
assistance of counsel claims should be considered in a
postconviction proceeding. Id.
7 Hardin later filed a pro se Crim. P. 35(c) motion raising
numerous claims, including ineffective assistance of counsel.
The postconviction court denied the motion in 1999 without
holding a hearing, appointing counsel, or resentencing Hardin
in accordance with the remand instructions. Hardin appealed
the 1999 order denying his postconviction motion. In December
2000, a division of this court reversed the order and
remanded with instructions to hold further proceedings on
Hardin's postconviction claims and to comply with the
1997 remand instructions regarding resentencing. See
People v. Hardin, (Colo.App. No. 99CA2405, Dec. 21,
2000) (not published pursuant to C.A.R. 35(f)).
8 After the remand, the postconviction court appointed
another attorney to represent Hardin in April 2001. Over the
next four years, and after the postconviction court allowed
several extensions of time to supplement Hardin's pro se
Crim. P. 35(c) motion, Hardin's appointed counsel failed
to file any supplement. Meanwhile, Hardin made numerous pro
se filings expressing his frustration with his attorney's
inaction and his desire to obtain adequate counsel. In
response to the inactivity in these proceedings, the
postconviction court appointed Hardin's current attorney
in February 2005.
9 Almost eight years later, in December 2012 - about
twenty-four years after trial and about twelve years after
Hardin filed his original Crim. P. 35(c) motion - the third
and final trial judge to preside over this case since the
2000 remand issued an order mandating that Hardin's
postconviction proceedings "get
moving."Thereafter, Hardin's attorney filed two
supplemental briefs in support of his motion for
postconviction relief. The postconviction court held an
evidentiary hearing over three days on the matter. After the
hearing, the postconviction court denied Hardin's motion.
In denying the motion, the postconviction court stated that
the twelve-year delay in the postconviction proceedings
"did not amount to a remedial due process violation . .
. and, perhaps most importantly, did not legally prejudice
10 Hardin now appeals.
11 Hardin argues that the postconviction court erred in
concluding that the proper remedy for the twelve-year delay
in resolving his postconviction claims, which violated his
right to due process, was to finally address his Crim. P.
35(c) motion, rather than grant him a new trial. In support
of this position, Hardin asserts that the delay impaired his
ability to present his claims for postconviction relief, as
shown by the witnesses' faded memories and the
unavailability of certain records. Hardin further argues that
we should analyze his due process claim concerning the
twelve-year delay in his postconviction proceedings in the
same manner as appellate delays - that is, under the Colorado
Supreme Court's iteration of the factors set forth in
Barker v. Wingo, 407 U.S. 514 (1972). See Hoang
v. People, 2014 CO 27, ¶¶ 48-54. We conclude
that the postconviction court properly declined to grant
Hardin a new trial on this issue, but we respectfully
disagree with the postconviction court's legal analysis.
Preservation, Standard of Review, and Applicable Law
12 The parties agree that this issue has been properly
13 This issue presents a mixed question of fact and law.
See People v. Glaser, 250 P.3d 632, 636 (Colo.App.
2010). We defer to a postconviction court's findings of
fact if they are supported by evidence in the record, and we
review its conclusions of law de novo. See Dunlap v.
People, 173 P.3d 1054, 1063 (Colo. 2007).
14 As a matter of first impression, we determine that due
process claims arising from delays in resolving motions for
postconviction relief should be analyzed under the balancing
test set forth in Barker, 407 U.S. at 530. Although this test
was originally applied to issues concerning a defendant's
Sixth Amendment right to a speedy trial, courts have employed
it in the context of due process claims arising from delays
in various legal proceedings. See, e.g., People v. Smith, 183
P.3d 726, 730 (Colo.App. 2008) (delay regarding a probation
revocation hearing); People v. Rios, 43 P.3d 726, 732
(Colo.App. 2001) (delay in appellate proceedings);
Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. Ct.