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People v. Liggett

Court of Appeals of Colorado, Division A

July 12, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Ari Misha Liggett, Defendant-Appellant. AND The People of the State of Colorado, Plaintiff-Appellee,
v.
Ari Misha Liggett, Defendant-Appellant.

          Arapahoe County District Court No. 12CR2253, 10CR576 Honorable Michelle A. Amico, Judge

          Cynthia H. Coffman, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          ORDER

          FREYRE JUDGE.

         ¶ 1 In this direct appeal of two cases - first degree murder after deliberation and revocation of probation (based on the murder conviction) - counsel for the defendant, Ari Misha Liggett, request an indefinite stay of the appellate proceedings due to Liggett's incompetence. For the same reason, counsel ask us to stay ruling on Liggett's request to terminate counsel's representation and to dismiss the appeal. Finally, counsel ask us to remand the cases to the district court for competency restoration proceedings.

         ¶ 2 Liggett's counsel and the People agree, as do we, that an incompetent defendant cannot waive the right to counsel or a direct appeal. Therefore, we cannot rule on these requests until Liggett is restored to competence during the period in which we have jurisdiction over the appeal, as discussed in Part IV.

         ¶ 3 The remaining two requests present issues no Colorado appellate court has considered. First, should a defendant's direct criminal appeal be stayed indefinitely when such person is found legally incompetent after the notice of appeal is filed? For the reasons explained below, we answer that question "no." We hold that a defendant's direct criminal appeal should proceed, despite a finding of incompetence. Therefore, we deny Liggett's counsel's request to indefinitely stay the appellate proceedings.

         ¶ 4 Second, does this court have the authority to bifurcate the direct appeal and to grant a limited remand for competence restoration proceedings while the appeal proceeds? We answer that question "yes." We hold that section 13-4-102(3), C.R.S. 2017, authorizes this court to "issue any writs, directives, orders, and mandates necessary to the determination of cases within [our] jurisdiction." Because, due to Liggett's incompetence, we are unable to rule on the pending requests to dismiss counsel and to dismiss the appeal, we conclude that a limited remand for restoration proceedings under section 16-8.5-111(2), C.R.S. 2017, is necessary for our future determination of these motions and the dispositions of the direct appeals. Therefore, we grant in part Liggett's counsel's request for a remand to restore Liggett to legal competence.

         I. Background

         ¶ 5 A jury convicted Liggett of first degree murder after deliberation on November 10, 2014. The court sentenced him to life in prison without the possibility of parole on November 14, 2014. At the same time, the court found that Liggett's murder conviction constituted a violation of his probation and sentenced him to a three-year concurrent prison sentence for the violation. It awarded him 1095 days of presentence confinement credit on the three-year sentence.[1]

         ¶ 6 Following the imposition of sentence, trial counsel asked the court to appoint the public defender's office for the purpose of appealing both cases. Liggett did not object. Thus, when Liggett was competent, the public defender filed a timely notice of appeal on December 29, 2014. Both cases were eventually assigned to current counsel acting as alternate defense counsel.

         ¶ 7 On September 19, 2016, appellate counsel filed a motion to dismiss the appeal in the murder case. By an order, this court denied that motion with leave to renew it upon receiving an affidavit from Liggett averring that he had been advised of his rights concerning the appeals and that he wished to dismiss them.

         ¶ 8 On October 24, 2016, appellate counsel filed a motion to stay the proceedings in both cases and requested a limited remand to determine whether Liggett was competent to proceed and competent to knowingly, voluntarily, and intelligently waive his rights to appeal and to counsel. Counsel represented that Liggett wished to terminate counsel's representation, and to dismiss the appeals. Counsel asserted a good faith belief that Liggett (1) lacked the capacity to make an informed choice; (2) lacked an understanding of his choices; (3) lacked an understanding of counsel's role in the appellate proceedings; and (4) was overcome by a serious thought disorder. Because of these issues, counsel maintained they could not ethically procure an affidavit from Liggett waiving his rights to appeal and to counsel, absent a competency determination.

         ¶ 9 By a one-judge order, this court granted the motion for limited remand on December 13, 2016. After receiving two evaluations declaring Liggett incompetent to proceed, the district court entered an order on September 26, 2017, finding Liggett incompetent to proceed and incompetent to make a knowing, voluntary, and intelligent wavier of his rights to counsel and to appeal. Based on the language of the remand order, the district court ruled that it did not have jurisdiction to initiate restoration proceedings.

         ¶ 10 After the recertification of both cases on appeal, counsel filed a motion to stay the appellate proceedings indefinitely and for a limited remand to restore Liggett to competence. The People objected, arguing, based on out-of-state jurisprudence and on William H. Erickson et al., Mental Health Standards 7-5.4 (Am. Bar Ass'n 1984), that the appeal could proceed. Thereafter, we requested supplemental briefing on the novel issues described above.

         II. Waiver of Counsel and Appeal

         ¶ 11 It is well settled that the right to counsel is a constitutional right and that a defendant may waive that right only if (1) the defendant is competent to waive the right, and (2) the defendant makes the waiver knowingly, voluntarily, and intelligently. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Godinez v. Moran, 509 U.S. 389, 400-01 (1993); People v. Davis, 2015 CO 36M, ¶ 15. A defendant is competent to waive this right when he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding[] and . . . has a rational as well as factual understanding of the proceedings against him." Davis, ¶ 16 (quoting Dusky v. United States, 362 U.S. 402 (1960)). Moreover, a defendant must be competent to abandon his appeals. Rees v. Payton, 384 U.S. 312 (1966); see People v. Bergerud, 223 P.3d 686, 693-94 (Colo. 2010) (noting that decision whether to take an appeal is so fundamental to a defense that it cannot be made by defense counsel, but rather must be made by the defendant himself).

         ¶ 12 Because Liggett's counsel and the People agree that Liggett is incompetent, and because they agree that an incompetent defendant cannot waive the right to counsel or to a direct appeal, we conclude, consistent with the district court's finding, that Liggett is currently incompetent to waive counsel and to dismiss the appeal. Therefore, we cannot rule on the requests to dismiss counsel and to dismiss the appeal unless and until Liggett is restored to competence during the appellate process.

         III. The Direct Appeal May Proceed Despite the Incompetence Finding

         ¶ 13 Liggett's counsel contend that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. Counsel rely on well-established federal jurisprudence holding that an incompetent defendant may not be prosecuted unless he possesses both a sufficient present ability to consult with counsel and a rational and factual understanding of the nature of the proceedings. See Dusky, 362 U.S. at 402; see also Drope v. Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). Appellate defense counsel further contend that a meaningful attorney-client relationship cannot exist if a defendant is incompetent, so counsel is unable to fulfill the ethical obligations of representation. Finally, counsel contend that proceeding with the appeal to completion will trigger state and federal periods for filing postconviction motions, and, thus, Liggett's incompetence may work a forfeiture of important postconviction rights.

         ¶ 14 Relying on numerous out-of-state cases that have addressed this issue, the People argue that the direct appeal should proceed because appellate proceedings do not require a defendant's participation in the same way that trial proceedings do. They further argue that any failure of appellate counsel to raise meritorious issues due to incompetence can be remedied through postconviction relief. We find ...


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