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People v. Terry

Court of Appeals of Colorado, First Division

January 24, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Andrew Joseph Terry, Defendant-Appellant.

          Adams County District Court Nos. 10CR3742 & 11CR247 Honorable Thomas R. Ensor, Judge

          Philip J. Weiser, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Antony Noble, Alternate Defense Counsel, Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant

          OPINION

          TAUBMAN, JUDGE

         ¶ 1 Defendant, Andrew Joseph Terry, appeals the district court's denial of his Crim. P. 35(c) motion for postconviction relief. He alleges that the court procedurally erred in denying five of his six claims for relief before ordering the prosecution to respond to the only remaining claim. He further contends that he sufficiently pleaded ineffective assistance of counsel; thus, the district court erred in denying his postconviction motion. We affirm.

         I. Background

         ¶ 2 Terry was charged in two cases with multiple offenses arising from two separate incidents; the cases were joined for trial. In the first case, law enforcement officers in an unmarked patrol car were monitoring a parking lot due to a high volume of recent thefts. Officers observed a man looking in various car windows and acting suspiciously before joining Terry in a truck and driving away. As Terry drove away, officers noticed a broken window in one of the vehicles into which the man had peered, so officers followed the truck and eventually instructed an officer in a marked patrol car to pull it over. As the officer attempted to stop Terry, he rammed his truck into the patrol car; the attending officer reported that he "was afraid for his safety." Officers uncovered stolen items in the truck and arrested Terry.

         ¶ 3 During Terry's arraignment, he fled from the courtroom, purportedly panicking because of his surprise at being charged with attempted murder of a police officer. A week and a half later, officers responded to a report of an intoxicated man - later identified as Terry - driving his truck around a Walmart parking lot. As the officer approached Terry, he got in his truck, slammed the officer's hand in the door, and ran over the officer's foot as he sped away. A high-speed chase ensued and, when officers cornered him, he accelerated toward an officer who had drawn his gun. As Terry drove away, the officer fired his gun, shooting him in the back. Once officers surrounded him with patrol cars, Terry attempted to escape again by ramming the patrol cars. This incident formed the basis for the second case.

         ¶ 4 At trial, the district court joined Terry's cases, and he entered a plea of not guilty by reason of insanity (NGRI). He withdrew his plea on the second day of trial after a court-ordered mental health evaluation established his legal competence to proceed at trial and his sanity during the commission of the crimes. The jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular eluding, and four habitual criminal counts. After the court adjudicated Terry a habitual criminal in a separate trial, it sentenced him to an aggregate total of 204 years in the custody of the Department of Corrections.

         ¶ 5 On direct appeal, a division of our court affirmed the convictions, but it vacated the sentence for attempted extreme indifference murder and remanded to the district court for resentencing on that count. See People v. Terry, (Colo.App. No. 13CA0443, Dec. 31, 2015) (not published pursuant to C.A.R. 35(f)). At the instruction of the division, the district court reduced Terry's sentence for attempted extreme indifference murder to 96 years rather than the original 196 years.

         ¶ 6 Terry then filed a pro se motion for postconviction relief with a request for counsel. The district court denied three of the four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender and the prosecution and instructed the prosecutor to respond to the pro se motion and any supplemental motion within thirty days of its filing.

         ¶ 7 After the Public Defender's Office determined that it had a conflict of interest, alternative defense counsel (ADC) was appointed and filed a supplemental motion on Terry's behalf. The motion raised the following six claims of ineffective assistance of counsel - (1) failure to investigate and present evidence in support of Terry's NGRI plea; (2) failure to investigate and present evidence to prove his level of intoxication at the time of the offenses; (3) failure to investigate and present evidence in support of lesser nonincluded offenses and failing to request instruction on those offenses; (4) failure to file a motion to suppress his arrest; (5) failure to convey the prosecution's plea offer; and (6) failure to request a proportionality review. The district court concluded that five of the six claims did not entitle Terry to relief and ordered the prosecution to respond to the solitary claim that remained - trial counsel's failure to convey a plea offer to him. However, Terry voluntarily withdrew that claim.

         ¶ 8 Terry appeals the district court's dismissal of his five claims of ineffective assistance of counsel without first ordering a response from the prosecution.

         II. Postconviction Court Procedure

         ¶ 9 Terry contends that the district court erred in denying his petition for postconviction relief because Crim. P. 35(c)(3)(V) requires, in the circumstances presented here, that the prosecution respond and the defendant be allowed an opportunity to reply to that response. We disagree.

         A. Standard of Review

         ¶ 10 We review de novo a district court's denial of a Crim. P. 35(c) motion and its construction of a rule of criminal procedure. People v. Davis, 2012 COA 14, ¶ 6, 272 P.3d 1167, 1169.

         B. Applicable Law

         ¶ 11 Crim. P. 35(c)(3) prescribes particular procedures regarding pro se petitions for postconviction relief. Crim. P. 35(c)(3)(IV). The court may only deny a pro se defendant's petition for postconviction relief if the motion, files, and record clearly demonstrate "that the defendant is not entitled to relief." Id.; Ardolino v. People, 69 P.3d 73, 77 (2003). However, if the court does not deny the motion, it must order service of the motion on the prosecutor and appoint counsel if the defendant so requests. Crim. P. 35(c)(3)(V).

         ¶ 12 The public defender or ADC[1] must respond, stating his or her intention to enter an appearance on behalf of the defendant, identifying any conflict, requesting any needed time extension, and setting forth additional claims counsel intends to pursue. Id. Once the district court receives appointed counsel's response, it must order the prosecutor to respond to the claims and direct defense counsel to reply to that response. Id. The rule notes that the prosecutor need not respond until so directed by the court. Id. "Thereafter, the court shall grant a prompt hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law." Id.

         ¶ 13 Though the rule appears to outline a detailed approach to handling pro se motions for postconviction relief, we observe gaps in the scheme that require the court to fill in, as necessary. First, the rule makes no mention of ADC and only refers to the Public Defender's Office. Thus, when the defendant requires ADC, it remains unclear what amount of time the court may allow for an entry of appearance by counsel.

         ¶ 14 When ADC must act as appointed counsel, Crim. P. 35(c)(3)(V) also presumes the postconviction court will order the prosecution to respond to ADC's supplemental motion. Moreover, the language stating that the court shall direct the prosecution to respond to the defendant's claims is ambiguous. Whether it requires the prosecution to respond to both the pro se motion and the supplemental motion or just the supplemental motion is unclear. Crim. P. 35(c)(3)(V). Finally, the rule leaves open the question of whether the ...


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