People v. Delgado

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          Larimer County District Court No. 02CR1285, Honorable Julie Kunce Field, Judge

         Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

         Katayoun A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

         OPINION

         J. JONES, JUDGE

         [¶1] Defendant, Lupe Delgado, appeals the district court’s order summarily denying his Crim. P. 35(c) motion based on ineffective assistance of counsel. We reverse the order in part and remand the case for a hearing on defendant’s claim that his attorney incorrectly advised him about his sentencing exposure, leading him to reject a favorable plea offer. In so deciding, we conclude that the United States Supreme Court’s decisions in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), overruled the Colorado Supreme Court’s decision in Carmichael v. People, 206 P.3d 800 (Colo. 2009), on two points: (1) the test for showing prejudice where an attorney incorrectly advises a defendant in plea negotiations, resulting in the defendant rejecting a plea offer; and (2) the remedies available where a defendant in these circumstances shows both ineffective assistance and prejudice. Otherwise, we affirm.

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          I. Background

         [¶2] In 2002, the People charged defendant with aggravated incest and three counts of sexual assault on a child by one in a position of trust. He hired a private attorney to represent him in that case, but that attorney withdrew several months before trial. Defendant couldn’t pay another private attorney but didn’t qualify for a public defender. Although he repeatedly said that he wasn’t qualified to represent himself and didn’t want to proceed pro se, he went to trial without an attorney. A jury convicted him of all charges.

         [¶3] The court appointed a public defender to represent defendant for sentencing. According to defendant’s Rule 35(c) motion, the attorney told him that the prosecutor had offered a fixed, ten-year sentence to the custody of the Department of Corrections (DOC), but the offer wasn’t favorable since the maximum prison term he could get was fifteen years.^[1] Relying on this advice, defendant rejected the offer. The court sentenced him to an indeterminate fifteen years to life sentence for aggravated incest and concurrent fifteen-year sentences on the other charges. He appealed.

         [¶4] A division of this court reversed, holding that defendant’s waiver of counsel was not knowing, voluntary, and intelligent. A new trial ensued, after which a jury once again convicted defendant of all charges. The court again sentenced defendant to an aggregate term of fifteen years to life in DOC custody. He unsuccessfully appealed.

         [¶5] Defendant later filed a Crim. P. 35(c) motion, asserting ten claims of ineffective assistance of counsel and requesting a hearing on those claims. The district court denied the motion without a hearing.

          II. Discussion

         [¶6] We review a summary denial of a Rule 35(c) motion de novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo.App. 2010).

         [¶7] To prevail on a claim of ineffective assistance of counsel under Rule 35(c), a defendant must show that (1) his attorney’s performance was deficient and (2) the attorney’s deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). An attorney’s performance is deficient if it falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To prove that such deficient performance prejudiced him, the defendant must show "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. If the defendant establishes those elements and meets all other requirements under Rule 35(c), the district court "shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant." Crim. P. 35(c)(3).^[2]

         [¶8] A defendant requesting postconviction relief under Rule 35(c) may be given a hearing to develop the record on his claims. See § 18-1-401, C.R.S. 2018; Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). But a court may deny the motion without a hearing if the motion, files, and record clearly establish that the defendant is not entitled to relief; if the allegations, even if true, don’t provide a basis for relief; or if the claims are bare and conclusory in nature and lack supporting factual allegations. People v. Venzor, 121 P.3d 260, 262 (Colo.App. 2005).

         [¶9] Defendant appeals the district court’s summary denial of three of his claims: (1) counsel failed to correctly advise him about ...