People v. Chalchi-Sevilla

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          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.

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         [¶3] On direct appeal, a division of this court affirmed the judgment of conviction. See People v. Chalchi-Sevilla, (Colo.App. No. 12CA0202, 2015 WL 693568, 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, 132 S.Ct. 1376, 182 L.Ed.2d 398 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice under ...