Jefferson County District Court No. 06CR1949 Honorable Todd
L. Vriesman, Judge.
Cynthia H. Coffman, Attorney General, Brenna A. Brackett,
Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee
Leslie
A. Goldstein, Alternate Defense Counsel, Steamboat Springs,
Colorado, for Defendant-Appellant
OPINION
WELLING JUDGE.
¶
1 Defendant, Larry Gene Lancaster, contends that the district
court erroneously denied his Crim. P. 35(c) motion alleging
that his trial counsel was ineffective for failing to perfect
his appeal. We agree and, therefore, reverse the district
court's order denying Lancaster's Crim. P. 35(c)
motion and order that Lancaster is entitled to file his
direct appeal out of time.
I.
Background
¶
2 In 2006, Lancaster was arrested after a teenage boy
reported that Lancaster had provided him with marijuana and
alcohol and initiated sexual contact. A second teenage boy
later came forward with similar allegations. Lancaster was
charged with sexual assault on a child (two counts), bribing
a witness or victim (two counts), sexual assault, unlawful
sexual contact, and contributing to the delinquency of a
minor.
¶
3 In May 2007, Lancaster went to trial. He was represented at
trial by Steven Newell. Newell and Lancaster executed a fee
agreement detailing the scope of Newell's representation.
The termination provision of that fee agreement provided as
follows:
Under Colorado Court rules, representation is terminated at
the conclusion of trial court proceedings, which essentially
is after a finding of not guilty or a sentencing, unless
otherwise directed by the Court or by agreement between you
and Newell Vonachen and Weeks to represent you beyond that
point.
¶
4 The jury ultimately found Lancaster guilty on six of the
seven counts. In October 2007, he received an indeterminate
sentence of fourteen years to life. In December 2007,
Lancaster filed a motion requesting additional presentence
confinement credit. In that motion, Lancaster described
himself as pro se. Neither he nor Newell filed a notice of
appeal.
¶
5 In September 2010, Lancaster filed a pro se Crim. P. 35(c)
motion alleging that his trial counsel had been
constitutionally ineffective by failing to file a notice of
appeal. In his motion, Lancaster requested the appointment of
postconviction counsel. The district court appointed the
public defender to represent him in the postconviction
proceedings.
¶
6 Neither the public defender nor the district court took any
action on Lancaster's Crim. P. 35(c) motion for more than
five years. In February 2016, sixty-four months after
Lancaster's original motion was filed, postconviction
counsel filed a supplemental Crim. P. 35(c) motion. In the
supplemental motion, Lancaster renewed the ineffective
assistance of trial counsel claim from his September 2010
motion and added five additional claims. The district court
ruled that the additional claims were time barred, but it
held an evidentiary hearing on Lancaster's first claim -
that his trial counsel's failure to perfect his appeal
deprived him of constitutionally effective trial counsel. As
reflected in the district court's subsequent order,
Lancaster based his claim on "ABA recommended standards
regarding criminal justice practice," not "Crim. P.
44 or . . . case law regarding ineffective assistance of
counsel."
¶
7 Newell and Lancaster testified at the hearing. In a
four-page order issued on May 26, 2016, the district court
found that Lancaster had met with Newell after his conviction
but before sentencing and stated his desire to appeal his
conviction. The district court also found that Newell met
with Lancaster three times after trial, during which time
Newell "made clear, in writing and verbally, that he
would not act as [Lancaster's] attorney for an
appeal." Based on its conclusion that Newell's
representation terminated before the alleged ineffective
assistance occurred, the district court denied
Lancaster's ineffective assistance of trial counsel
claim.
¶
8 This appeal followed.
II.
Analysis
¶
9 On appeal, Lancaster relies on People v. Baker,
104 P.3d 893 (Colo. 2005), contending that Newell was
constitutionally ineffective in failing to file a notice of
appeal on his behalf. The People respond that Lancaster's
ineffective assistance claim must fail because Newell's
attorney-client relationship with Lancaster terminated
pursuant to the undisputed terms of the fee agreement after
Lancaster was sentenced on October 1, 2007. In addition, the
People contend that Baker is distinguishable. We are
unpersuaded by either of the People's contentions and
conclude that Newell's failure to either file a notice of
appeal on Lancaster's behalf or withdraw pursuant to
Crim. P. 44(d) ...