County District Court Nos. 10CR3742 & 11CR247 Honorable
Thomas R. Ensor, Judge
J. Weiser, Attorney General, Jillian J. Price, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Noble, Alternate Defense Counsel, Matthew Fredrickson,
Alternate Defense Counsel, Lakewood, Colorado, for
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.
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
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.
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.
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.
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 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
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
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