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People v. Timoshchuk

Court of Appeals of Colorado, Fourth Division

November 1, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Maksim V. Timoshchuk, Defendant-Appellant.

          Court of Appeals No. 17CA0259 El Paso County District Court No. 15CR1103 Honorable Thomas K. Kane, Judge

          Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for Defendant-Appellant

          OPINION

          TOW JUDGE

         ¶ 1 Maksim V. Timoshchuk appeals the district court's order summarily denying his Crim. P. 35(c) motion for postconviction relief based on a claim of ineffective assistance of counsel. We hold apparently for the first time, that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel as measured by the Strickland test. Because Timoshchuk asserted sufficient facts to warrant a hearing on his claim, we reverse and remand for further proceedings.

         I. Background

         ¶ 2 Timoshchuk was born in Ukraine and admitted to the United States as a refugee on July 16, 2002. The federal immigration authorities adjusted his status to that of a lawful permanent resident on November 17, 2005.

         ¶ 3 In March 2015, Timoshchuk was charged with forgery. As part of a plea agreement, on April 21, 2015, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases.

         ¶ 4 In July 2015, Timoshchuk's probation officer filed a complaint in district court, alleging that Timoshchuk had violated the conditions of his probation in part by being arrested and charged with new offenses. On August 24, 2015, Timoshchuk entered into an agreement resolving all four cases; specifically, he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk's probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections concurrent with his other sentences.

         ¶ 5 On July 27, 2016, the Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(R) (2018).[1] Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged.

         ¶ 6 In September 2016, Timoshchuk filed a Form I-589 Application for Asylum and for Withholding of Removal. The court ultimately denied his application. The immigration judge ruled that Timoshchuk was not eligible for asylum due to his aggravated felony conviction.

         ¶ 7 Timoshchuk then filed a postconviction motion under Crim. P. 35(c), alleging that he was denied effective assistance of counsel because his probation revocation counsel failed to adequately investigate and correctly advise him of the immigration consequences of his admission and subsequent sentencing.[2] The district court denied Timoshchuk's motion without a hearing, stating that Timoshchuk was "advised that the convictions in the plea agreement would have adverse consequences on his immigration status."

         II. Analysis

         ¶ 8 Timoshchuk argues that the court erred in denying his Crim. P. 35(c) motion for postconviction relief without a hearing. We agree.

         A. Standard of Review

         ¶ 9 We review a district court's summary denial of a Crim. P. 35(c) motion de novo. People v. Gardner, ...


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