People v. Lancaster

Page 913

          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.

Page 914

         [¶ 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) and secure the appointment of the ...