Jefferson County District Court No. 06CR1949, Honorable Todd
L. Vriesman, Judge
H. Coffman, Attorney General, Brenna A. Brackett, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Goldstein, Alternate Defense Counsel, Steamboat Springs,
Colorado, for Defendant-Appellant
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 courts order denying Lancasters Crim.
P. 35(c) motion and order that Lancaster is entitled to file
his direct appeal out of time.
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 Newells
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
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
6] Neither the public defender nor the district
court took any action on Lancasters Crim. P. 35(c) motion
for more than five years. In February 2016, sixty-four months
after Lancasters 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 Lancasters first claim—
that his trial counsels failure to perfect his appeal
deprived him of constitutionally effective trial counsel. As
reflected in the district courts 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 [Lancasters] attorney for an appeal."
Based on its conclusion that Newells representation
terminated before the alleged ineffective assistance
occurred, the district court denied Lancasters ineffective
assistance of trial counsel claim.
8] This appeal followed.
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 Lancasters
ineffective assistance claim must fail because Newells
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 Peoples contentions and
conclude that Newells failure to either file a notice of
appeal on Lancasters behalf or withdraw pursuant to Crim. P.
44(d) and secure the appointment of the ...