County District Court No. 12CR2061 Honorable Katherine R.
AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Wigglesworth, Alternate Defense Counsel, Denver, Colorado,
and Berger, JJ., concur.
1 Defendant, Timothy David Smith, appeals the district
court's denial, without a hearing, of his Crim. P. 35(c)
motion for postconviction relief. We affirm in part, reverse
in part, and remand for further proceedings consistent with
2 Under certain circumstances, a trial court may deny a
postconviction motion without conducting an evidentiary
hearing or notifying either the prosecution or the Public
Defender, if "the motion and the files and record"
show the defendant is not entitled to relief. Crim. P.
35(c)(3)(IV). If, however, the court requests a response from
the prosecution and gives the defendant an opportunity to
reply, the court must grant a hearing unless, "based on
the pleadings, " the court finds that it is appropriate
to enter a summary ruling containing written findings of fact
and conclusions of law. Crim. P. 35(c)(3)(V).
3 In this opinion, we determine whether a report, written by
an investigator and attached to the prosecution's
response to Smith's Crim. P. 35(c) motion, is a part of
"the pleadings" as contemplated by Crim. P.
35(c)(3)(V). Under the circumstances of this case, we
conclude that it is not.
4 Smith was charged with three sexual offenses after his
thirteen-year-old stepdaughter reported to her mother that
Smith had repeatedly subjected her to sexual abuse, including
sexual intercourse. As the result of an unwritten plea
agreement, Smith pleaded guilty to added counts of first
degree assault with a deadly weapon and attempted sexual
assault on a child by a person in a position of trust. The
original charges were dismissed, and Smith was sentenced to a
determinate twenty-eight-year term in the custody of the
Department of Corrections (DOC).
5 Acting pro se, Smith timely moved for postconviction relief
under Crim. P. 35(c). Among other things, he alleged that his
plea counsel was ineffective in failing to enforce a
stipulated twenty-year DOC sentence and advise him that,
under section 17-22.5-403(2.5), C.R.S. 2016, he would have to
serve seventy-five percent of his sentence before he would
become parole eligible. He further alleged that plea counsel
told him to "ignore" whatever sentencing advisement
the court gave him because he "would in fact only
receive 20 years."
6 The district court appointed counsel expounded on
Smith's pro se claims in a supplemental motion. In
particular, the supplement alleged that plea counsel advised
Smith (1) to "remain silent" at the providency
hearing in order to receive the promised twenty-year sentence
and (2) that he would be eligible for parole after serving
fifty percent of his sentence rather than the required
seventy-five percent. But for these alleged errors,
postconviction counsel asserted, Smith would not have pleaded
guilty. Indeed, according to the supplement, Smith asked his
plea counsel to withdraw the plea after the providency
hearing out of a concern that "there was no mention [of
the twenty-year ...