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
McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for
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
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
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). Because Timoshchuk conceded the charges
against him, the immigration court found Timoshchuk removable
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. 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
8 Timoshchuk argues that the court erred in denying his Crim.
P. 35(c) motion for postconviction relief without a hearing.
Standard of Review
9 We review a district court's summary denial of a Crim.
P. 35(c) motion de novo. People v. Gardner, ...