Adams
County District Court No. 11CR1307 Honorable Ted C. Tow,
Judge
Dave
Young, District Attorney, Michael Whitney, Deputy District
Attorney, Brighton, Colorado, for Plaintiff-Appellant
Mallika L. Magner, Alternate Defense Counsel, Crested Butte,
Colorado, for Defendant-Appellee
OPINION
JUDGE
J. JONES
¶
1 The People appeal the postconviction court's order
granting the Crim. P. 35(c)(2) motion of defendant, Harley
David Sharp, and ordering a new trial. We reverse and remand
with instructions to reinstate the judgment of conviction and
the sentence imposed. We first conclude that defendant
didn't establish prejudice resulting from his trial
attorney's failure to investigate. And we conclude that
to establish ineffective assistance of trial counsel where
counsel failed to move for a new trial, a defendant must
demonstrate a reasonable probability that the court would
have granted the motion. Prejudice can't be presumed in
this situation, and in this case, defendant didn't
establish a reasonable probability that a motion for a new
trial would have been granted.
I.
Background
¶
2 The People charged defendant with sexually assaulting his
daughter between 2008 and 2010 when she was between two and
five years old. The victim's great aunt had reported the
assaults to the department of social services after the
victim confided in her and spontaneously engaged in
aggressive sexual behavior in late 2010.
¶
3 At trial, the victim struggled to remember details. But she
testified that her father had touched her buttocks, touched
and licked her vagina, and had her touch his penis. The
victim's mother testified that one night she woke up and
saw defendant touching the victim's vagina while also
touching himself. She told defendant to stop, but she
didn't report the incident.[1] A sexual assault nurse examiner
(SANE) who examined the victim shortly after the victim's
great aunt reported the assaults testified that she
didn't find any physical trauma. But according to the
SANE, that was a fairly typical result for the type of
contact the victim and her mother accused defendant of
engaging in. (The SANE had been told the victim hadn't
had any contact with her father for at least two months.) She
also said that only about four percent of the children she
has examined for evidence of sexual assault showed any
physical trauma.
¶
4 A jury found defendant guilty of sexual assault on a child,
sexual assault on a child as a pattern of abuse, and sexual
assault on a child by one in a position of trust.
¶
5 At defendant's sentencing hearing, R.H., a cousin of
the victim's mother, spoke with defense counsel's
investigator and made some new allegations. R.H. said that
the victim had asked her "what would happen if I
lied?" - a statement R.H. assumed meant the victim was
lying about her father assaulting her. R.H. also told the
investigator that, in 2010, the victim's grandmother had
offered to pay R.H. to make false allegations of sexual
assault against the grandmother's husband (or ex-husband)
to get "revenge" against him for refusing to pay
rent to her. Defense counsel didn't move for a new trial
based on R.H.'s allegations.
¶
6 A division of this court affirmed defendant's
convictions on direct appeal. People v. Sharp,
(Colo.App. No. 13CA1761, June 11, 2015) (not published
pursuant to C.A.R. 35(f)).
¶
7 Defendant filed a pro se motion (followed shortly
thereafter by a supplemental motion from newly appointed
postconviction defense counsel) for postconviction relief
under Crim. P. 35(c). He sought a new trial based on newly
discovered evidence (see Crim. P. 35(c)(2)(V)) -
specifically, the information R.H. had given the investigator
- and alleged that his trial counsel had been ineffective in
a variety of ways (see Crim. P. 35(c)(2)(I)). As now
relevant, defendant alleged that his trial counsel provided
ineffective assistance by failing to investigate potential
witnesses (one of whom was R.H.) and by failing to move for a
new trial under Crim. P. 33 after R.H. came forward with new
information.
¶
8 The postconviction court held an evidentiary hearing on the
motion. Defendant testified that in late 2007 or early 2008,
the grandmother picked up the victim from the babysitter and
took her home to defendant. The grandmother told him that she
had seen inflammation and green discharge on the victim's
vaginal area after picking her up. He said that he
"flipped" and took the victim to the hospital,
where a doctor examined her and didn't find any
inflammation or green discharge. He said he told trial
counsel about the incident before trial, but counsel failed
to investigate further or to seek information from the
hospital where the victim had been examined. R.H. testified
about her conversations with the victim, the grandmother, and
the defense investigator.
¶
9 The postconviction court rejected many of defendant's
claims, but found merit in two. First, it found trial
counsel's failure to investigate defendant's
assertion that he had taken the victim to a hospital to be
examined during the same period he was allegedly assaulting
her was ineffective assistance that prejudiced defendant. On
this basis, the court vacated defendant's convictions and
ordered a new trial. Second, it found that trial
counsel's failure to move for a new trial after R.H. came
forward was ineffective assistance. The court said it did not
need to determine whether such a motion would have been
successful, reasoning that the failure to move for a new
trial is like a failure to perfect an appeal, a circumstance
in which the loss of the appellate proceeding constitutes the
required prejudice. So the remedy for a failure to move for a
new trial, the court said, would be to restore
defendant's opportunity to seek a new
trial.[2]
II.
Discussion
¶
10 The People challenge both of the postconviction
court's bases for finding ineffective assistance of
counsel. We agree with them as to both.
A.
Applicable Law and Standard of Review
¶
11 To prevail on a claim of ineffective assistance of counsel
under Rule 35(c), a defendant must show that (1)
counsel's performance fell below an objective standard of
reasonableness and (2) counsel's deficient performance
prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). There is a strong presumption that
counsel's performance did not fall below an objective
standard of reasonableness. Id. at 689. To prove
prejudice, 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; accord Ardolino v.
People, 69 P.3d 73, 76 (Colo. 2003) ("[A]
reasonable probability means a probability sufficient to
undermine confidence in the outcome.").
¶
12 A postconviction court's ruling on a Rule 35(c) motion
presents a mixed question of fact and law. Dunlap v.
People, 173 P.3d 1054, 1063 (Colo. 2007). We defer to
the court's findings of fact if they have record support,
but we review any legal conclusions de novo. Id.
These legal conclusions to which we do not defer include
"the ultimate determinations on
Strickland's performance and prejudice
prongs." People v. Sifuentes, 2017 COA 48M,
¶ 16; see People v. Newmiller, 2014 COA 84,
¶ 18.
B.
Analysis
1.
Failure to Investigate
¶
13 The postconviction court found that trial counsel's
failure to further investigate the 2007 or 2008 hospital
visit met both Strickland prongs: (1) it fell below
the objective standard of reasonableness and (2) "[t]his
information, if true, may very well have had some impact on
the jury's consideration of the facts." This is so,
the court said, because this evidence would have shown
"that during the same time period Defendant was alleged
to have been perpetrating upon this child, the child was
examined by a doctor, who had found no signs of physical
abuse." The court concluded that "while it is
...