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People v. Phipps

Court of Appeals of Colorado, Seventh Division

December 29, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Randy Scott Phipps, Defendant-Appellant.

         Jefferson County District Court No. 11CR961 Honorable Christopher J. Munch, Judge


          Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Randy Scott Phipps, Pro Se


          BERGER JUDGE

          ¶ 1 Based on a plea agreement in which many other serious charges were dismissed, defendant, Randy Scott Phipps, pleaded guilty to sexual assault on a child. He was sentenced to an indeterminate prison term of seventeen years to life. Phipps then sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied his motion without holding a hearing.[1]

         ¶ 2 Phipps asserts on appeal that the district court (1) was required to hold a hearing on his motion and (2) erred in rejecting his ineffective assistance of counsel claims. We affirm the district court's order because Phipps' allegations were bare and conclusory in nature, directly refuted by the record, and, even if proven true, would have failed to establish one of the prongs of the test prescribed in Strickland v. Washington, 466 U.S. 668 (1984).

         I. Relevant Facts and Procedural History

         ¶ 3 During an investigation to detect child pornography shared over the Internet, the police remotely searched a computer onto which at least two files depicting child pornography had been downloaded. Using that computer's Internet Protocol (IP) address, the police determined that the computer was located in Phipps' home. The police obtained and executed a search warrant of Phipps' home.

         ¶ 4 Phipps was not home at the time of the search, but an officer spoke with him on the phone during the search and explained why his home was being searched. During that recorded phone call, Phipps admitted that he stored child pornography on his computer and that once the officer searched his computer, "his life was over." The police seized Phipps' computer, on which they found over thirty videos of children engaged in sexual acts.

         ¶ 5 One of these videos depicted Phipps' stepdaughter when she was approximately eight or nine years old. She was mostly nude, and the video showed Phipps instructing her to use sex toys as well as Phipps using sex toys on her. In her police interview, Phipps' stepdaughter identified herself and Phipps in the video and stated that Phipps had sexually assaulted her numerous times.

         ¶ 6 Phipps was charged with sexual assault on a child (position of trust - pattern of abuse) under sections 18-3-405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section 18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement) under section 18-6-403(3)(a), C.R.S. 2016; and sexual exploitation of children (possession) under section 18-6-403(3)(b.5). The court found Phipps indigent and appointed counsel to represent him. ¶ 7 A plea agreement was negotiated and Phipps pleaded guilty to the sexual assault charge. In exchange, the district attorney dismissed the remaining charges and promised that the United States Attorney would not prosecute Phipps on child pornography charges.[2]

         ¶ 8 At the sentencing hearing, Phipps took full responsibility for his crimes. He stated that he did not wish to put his family through a "horrific ordeal with a jury trial, " and that his "remorse, regrets, shame, despair, sadness, and sorrow cannot be measured."

         ¶ 9 In his motion for postconviction relief, Phipps made numerous claims of ineffective assistance of counsel. The arguments Phipps renews on appeal are:

• His counsel failed to challenge the legality of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.
• His counsel's decision to waive the preliminary hearing constituted deficient performance.
• His counsel's failure to request a bond reduction constituted deficient performance.
• His counsel's failure to investigate and challenge the prosecution's forensic computer evidence or hire an expert to do so constituted deficient performance.
• His counsel failed to advise him that, as a condition of his parole eligibility, he might be required to reveal past crimes, exposing him to additional criminal charges.
• His counsel failed to advise him that evidence of his crimes might be destroyed after he pleaded guilty.
• His counsel failed to advise him that he might be ordered to pay restitution to his stepdaughter.
• His counsel misadvised him about the minimum amount of prison time he would have to serve before being eligible for parole.
• His counsel misled him with regard to whether he was pleading guilty to a crime of violence.

         The district court did not hold a hearing, but concluded that the existing record demonstrated that Phipps' claims failed one or both prongs of Strickland.

         II. Unaddressed Arguments

         ¶ 10 In this court, Phipps repeatedly purports to incorporate arguments made in his Crim. P. 35(c) motion.

         ¶11 Phipps' attempt to incorporate the arguments he made in the district court violates C.A.R. 28(a)(7)(B), which requires appellants to state their "contentions and reasoning, with citations to the authorities and parts of the record on which the appellant relies." "Incorporating by reference or adopting by reference arguments from previous filings is improper because it attempts to shift, from the litigant to the court, the task of locating and synthesizing the relevant facts and arguments." People v. Duran, 2015 COA 141, ¶ 20. Such incorporations by reference also circumvent C.A.R. 28(g), which limits the length of briefs. See Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.App. 2006).

         ¶ 12 Phipps' failure to specifically reassert those arguments in this court constitutes a waiver of those claims. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996). Accordingly, we do not ...

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