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People v. Smith

Court of Appeals of Colorado, Seventh Division

January 26, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Timothy David Smith, Defendant-Appellant.

         Adams County District Court No. 12CR2061 Honorable Katherine R. Delgado, Judge.

         ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

          Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Erin Wigglesworth, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant.

          Terry and Berger, JJ., concur.

          OPINION

          BOORAS JUDGE.

         ¶ 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 this opinion.

         I. Introduction

         ¶ 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.[1] 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.

         II. Background

         ¶ 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 ...


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