Paso County District Court No. 15CR1103. Honorable Thomas K.
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for
Judges: Opinion by JUDGE TOW. Hawthorne and
Bernard, JJ., concur.
[¶ 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
[¶ 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
[¶ 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 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 ...