El
Paso County District Court No. 10CR1604 Honorable Robin L.
Chittum, Judge
Philip
J. Weiser, Attorney General, Gabriel P. Olivares, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Ricardo Chalchi-Sevilla, Pro Se
OPINION
TOW
JUDGE
¶
1 Defendant, Ricardo Chalchi-Sevilla, appeals the
postconviction court's order denying his Crim. P. 35(c)
motion without appointing postconviction counsel or holding
an evidentiary hearing. We reverse and remand for further
proceedings.
I.
Background
¶
2 Chalchi-Sevilla shot and killed a store owner during an
attempted robbery. At trial, the jury found him guilty of,
among other charges, first degree felony murder and attempted
aggravated robbery. The trial court sentenced him to life in
the custody of the Department of Corrections (DOC) without
the possibility of parole.
¶
3 On direct appeal, a division of this court affirmed the
judgment of conviction. See People v.
Chalchi-Sevilla, (Colo.App. No. 12CA0202, Feb. 19, 2015)
(not published pursuant to C.A.R. 35(f)).
¶
4 Chalchi-Sevilla later filed the pro se Crim. P. 35(c)
motion at issue, raising two claims of ineffective assistance
of his trial counsel. His first claim related to his
counsel's advice regarding whether he should accept a
plea offer from the prosecution. His second claim related to
his counsel's advice regarding whether he should testify
at trial. He requested that postconviction counsel be
appointed to represent him.
¶
5 The postconviction court issued a written order denying the
Crim. P. 35(c) motion without appointing counsel or holding
an evidentiary hearing.
II.
Applicable Law and Standard of Review
¶
6 A defendant's Sixth Amendment right to effective
assistance of counsel extends to the plea bargaining process.
Lafler v. Cooper, 566 U.S. 156, 162 (2012). To
prevail on an ineffective assistance claim, the defendant
must show that counsel's performance was constitutionally
deficient, and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). To show prejudice under Strickland where the
ineffective assistance results in rejection of a plea offer
and the defendant is convicted in the ensuing trial,
a defendant must show that but for the ineffective advice of
counsel, there is a reasonable probability that the plea
offer would have been presented to the court (i.e.,
that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or
both, under the ...