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People v. Sharp

Court of Appeals of Colorado, Fourth Division

August 29, 2019

The People of the State of Colorado, Plaintiff-Appellant,
v.
Harley David Sharp, Defendant-Appellee.

          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 ...


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