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People v. Hardin

Court of Appeals of Colorado, Sixth Division

December 1, 2016

The People of the State of Colorado, Plaintiff-Appellee,
William Daniel Hardin, Defendant-Appellant.

         City 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 Plaintiff-Appellee.

          Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant.


          FOX JUDGE.

         ¶ 1 Defendant, William Daniel Hardin, appeals the postconviction court's long-awaited order denying his Crim. P. 35(c) motion for postconviction relief.[1] We affirm.

         I. Background

         ¶ 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.[2]

         ¶ 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.[3] 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."[4]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 [Hardin]."

         ¶ 10 Hardin now appeals.

         II. Due Process

         ¶ 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.

         A. Preservation, Standard of Review, and Applicable Law

         ¶ 12 The parties agree that this issue has been properly preserved.

         ¶ 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. ...

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