Boulder County District Court Nos. 12CR245, 12M689 &
12M1067 Honorable Ingrid S. Bakke, Judge
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares,
Assistant Attorney General, Denver, Colorado, for
A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado,
1 Like many states, Colorado permits law students to
represent defendants in criminal cases under limited
circumstances and subject to specific requirements that must
be met by both the law student and the supervising lawyer.
2 After pleading guilty to third degree assault and violation
of a protection order, defendant, Jason Paul McGlaughlin,
moved to vacate his plea and the resulting convictions,
claiming that he was deprived of his Sixth Amendment right to
effective assistance of counsel when he was represented only
by a law student, not a licensed lawyer, at his plea hearing.
3 The postconviction court denied McGlaughlin's Crim. P.
35(c) motion without a hearing, concluding that the record
disproved McLaughlin's claim. We disagree with the
postconviction court's analysis and disposition and
reverse the court's order.
Relevant Facts and Procedural History
4 McGlaughlin was involved in a fight with his
ex-girlfriend's new boyfriend. The prosecution charged
him with second degree assault (a felony) and a related
5 Based on McGlaughlin's alleged conduct, his
ex-girlfriend obtained a temporary protection order that
prohibited McGlaughlin from contacting her. McGlaughlin
allegedly violated the order twice, which resulted in the
filing of two additional misdemeanor charges.
6 McGlaughlin resolved all these charges by pleading guilty
to one count of third degree assault (a misdemeanor) and to
one count of violating a protection order (also a
misdemeanor). At his plea hearing, McGlaughlin was
represented by a law student extern practicing under C.R.C.P.
205.7. The court accepted McGlaughlin's plea
and sentenced him to two years of probation.
7 McGlaughlin alleged the following material facts in his
Crim. P. 35(c) motion, which sought to vacate his plea and
• The deputy public defender who was assigned to
supervise the law student was not present in the courtroom
when he pleaded guilty.
• He was unaware, until after the plea hearing, that the
student was not, in fact, a licensed lawyer.
• While he pleaded guilty only to misdemeanors, he was
charged with a felony, and law students are prohibited from
representing defendants in felony proceedings.
• He never consented, in writing or otherwise, to
representation by a law student.
• The law student did not make a record during the plea
hearing that she was an extern, and the court was not aware
that she was one.
8 The postconviction court denied his motion without a
hearing, concluding that (1) the record established that the
deputy public defender was, in fact, present at the plea
hearing; (2) McGlaughlin was adequately represented by
counsel at all critical stages of the proceedings; (3) the
record established that McGlaughlin was not entitled to
relief on the basis of his claim of ineffective assistance of
counsel; and (4) McGlaughlin's plea was entered
knowingly, intelligently, and voluntarily.
Postconviction Court Erred by Denying McGlaughlin's Claim
Without a Hearing
9 McGlaughlin argues that his plea was constitutionally
invalid under the Sixth Amendment because he was not
represented by a licensed lawyer at a critical stage of his
criminal case. He also asserts that the assistance that he
received from the law student who represented him was
ineffective because the deputy public defender did not
adequately supervise her.
Colorado's Law Student Practice Rule
10 As relevant to our analysis, C.R.C.P. 205.7 imposes the
following conditions and limitations on the representation of
criminal defendants by law students:
• They cannot represent a defendant who "has been
charged with a felony." C.R.C.P. 205.7(2)(a)(i).
• The defendant must consent, in writing, to the law
student's representation. C.R.C.P. 205.7(2)(a)(i)(B).
• The defendant's written consent "shall be
made in the record of the case and shall be brought to the
attention of the judge of the court." C.R.C.P.
• When representing the office of the state public
defender and its clients, the law student must be "under
the supervision of the public defender or one of his or her
deputies." C.R.C.P. 205.7(2)(a)(i)(B).
• The supervising lawyer must sign and approve all
pleadings, briefs, and other legal documents. C.R.C.P.
Effect of a Violation of C.R.C.P. 205.7
11 There is no serious disagreement that a number of these
conditions were violated in this case. Indeed, the
postconviction court so found. The question we must decide,
then, is the effect, if any, of those violations on
McGlaughlin's guilty pleas and resulting
12 A criminal defendant has a Sixth Amendment right to the
assistance of counsel at all critical stages of his criminal
case. U.S. Const. amend. VI; Wheat v. United States,
486 U.S. 153, 158-59 (1988); People v. Arguello, 772
P.2d 87, 92 (Colo. 1989). "[T]he acceptance of a plea
offer and the entry of a guilty plea is a critical stage,
creating an entitlement to counsel." Carmichael v.
People, 206 P.3d 800, 805 (Colo. 2009). The
interpretation and application of the Sixth Amendment is a
matter of federal, not Colorado, law. Cmty. Hosp. v.
Fail, 969 P.2d 667, 672 (Colo. 1998).
13 The licensure of lawyers, however, is a matter of state
law. People v. Coria, 937 P.2d 386, 389 (Colo.
1997). The Colorado Supreme Court has the "sole
authority to license attorneys . . . and to prescribe the
rules and circumstances under which a person may appear as
counsel in Colorado courts." Id. Thus,
conceivably, the supreme court could, as a matter of state
law, authorize law students to engage in the plenary practice
of law. We need not address any Sixth Amendment ramifications
of doing so, because the supreme court has refused to
exercise any such authority.
14 In Coria, the court rejected the argument that
law students are the equivalent of licensed lawyers when they
practice under C.R.C.P. 205.7. Id. There, the
defendant argued that his Sixth Amendment rights were
violated when the trial court refused him his counsel of
choice - a law student extern. Id. The supreme court
held that the defendant's Sixth Amendment rights were not
violated because "the law student intern was neither a
deputy public defender nor a licensed Colorado practitioner.
Defendants do not have a right under the Sixth Amendment to
be represented by unlicensed persons. '[A]n advocate who
is not a member of the bar may not represent clients . . . in
court.'" Id. (quoting Wheat, 486
U.S. at 159). It follows that a law student is an
"unlicensed person," not a licensed lawyer.
Supervising Lawyer's Presence
15 C.R.C.P. 205.7 does not explicitly require the presence of
the supervising lawyer in the courtroom during critical
stages of criminal cases, unlike the rules of virtually every
other state that authorizes the limited practice of law by
law students. See, e.g., Ill. Sup. Ct. R.
711(c)(2)(iii) (stating that a law student may participate in
criminal proceedings "as an assistant of the supervising
member of the bar, who shall be present and responsible for
the conduct of the proceedings"); Miss. Code Ann. §
73-3-207(e) (West 2017) ("Law students may appear and
participate in trials and hearings in courts if the
supervising attorney or clinical teacher is present and
supervising the student."); Wash. Admission &
Practice R. 9 (detailing the activities a law student may do
without the presence of the supervising lawyer and those
where the supervising lawyer must be present).
16 The Sixth Amendment, however, requires that a defendant
have a licensed lawyer at the critical stages of his criminal
case, Wheat, 486 U.S. 158-59, and, as noted, the
Colorado Supreme Court has held that law students are
not licensed lawyers, Coria, 937 P.2d at
389. Thus, the Sixth Amendment requires that a licensed
lawyer be present in the courtroom when a law student
represents a criminal defendant during a critical stage of
his criminal case.
17 If the supervising lawyer is not in the courtroom during
those critical stages, no licensed lawyer is present, and the
defendant is denied his constitutional right to counsel
guaranteed by the Sixth Amendment. Such a complete
deprivation of counsel is a structural error, requiring
reversal without regard to any showing of prejudice.
United States v. Cronic, 466 U.S. 648, 659 n.25
(1984); Hagos v. People, 2012 CO 63, ¶ 10.
Other Violations of C.R.C.P. 205.7
18 Having determined that it is a violation of C.R.C.P. 205.7
for the supervising lawyer not to be present during critical
stages of a criminal case, and that such a violation
constitutes structural error, we now turn to the question of
how to evaluate other possible violations of C.R.C.P. 205.7.
No Colorado appellate case has addressed this question;
however, a number of other states (applying similar statutes
or rules) have.
19 One line of cases holds that even if a licensed lawyer
appears at the proceeding, the substantial involvement by a
law student (such as the examination of witnesses), without
the client's consent to representation by the law
student, is a structural error. See People v.
Miller, 152 Cal.Rptr. 707, 709 (Cal.App. Dep't
Super. Ct. 1979); In Interest of C.B., 546 So.2d
447, 448 (Fla. Dist. Ct. App. 1989); see also In re
Denzel W., 930 N.E.2d 974, 986 (Ill. 2010) (Freeman, J.,
20 This conclusion is premised on the theory that allowing a
non- lawyer to participate in the proceeding without the
defendant's actual consent constitutes a partial waiver
of the right to counsel. Miller, 152 Cal.Rptr. at
709. Such a waiver must be knowingly, voluntarily, and
intentionally made. Id.
21 Another line of cases holds that all violations
of the rules governing student practice - other than the
threshold question of the supervising lawyer's presence -
are evaluated under the Strickland v. Washington,
466 U.S. 668 (1984), test governing the ineffective
assistance of counsel. Washington v. Moore, 421 F.3d
660, 662 (8th Cir. 2005); Denzel W., 930 N.E.2d at
983-84; State v. Loding, 895 N.W.2d 669, 676-82
22 We agree with those decisions that apply
Strickland to violations other than the absence of
the supervising lawyer. They appropriately distinguish the
situation in which the defendant is not represented by
counsel at all - when only a non-licensed law student is
representing the defendant during a critical stage of his
criminal case - from the very different circumstance in which
the defendant is represented by a licensed lawyer
but the representation ...