Moore v. People, 318 P.3d 511

Background

Defendant Lessell Moore was convicted by jury of multiple violent offenses and sentenced as a habitual offender to an aggregate lengthy term.
At trial the court conducted a Curtis advisement informing Moore of his right to testify and consequences (including impeachment by prior felonies); Moore said he would follow counsel's advice and not testify.
On direct appeal Moore argued the Curtis advisement was legally defective (the court said the prosecutor could ask whether prior convictions resulted from pleas or trials), relying on later appellate authority.
The Colorado Court of Appeals addressed Moore's Curtis claim on direct appeal under a plain-error standard (Moore had not contemporaneously objected) and found no plain error.
The Colorado Supreme Court granted certiorari and held that challenges to the knowing, voluntary, and intelligent waiver of the right to testify are not reviewable on direct appeal but must be raised in a post-conviction proceeding under Crim. P. 35(c); contemporaneous objection is not required.
The Court modified aspects of People v. Blehm and People v. Harding: focus shifts from adequacy of on‑the‑record advisement to the ultimate question whether the waiver was knowing, voluntary, and intelligent; defendants must plead facts to obtain an evidentiary hearing, and if they do, the prosecution must prove the waiver was valid.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Curtis-waiver challenge may be raised on direct appeal	The Court of Appeals (and AG) argued addressing the claim on direct appeal is permissible for judicial economy and because record may suffice	Moore argued Blehm foreclosed direct‑appeal review and such claims belong in post‑conviction proceedings	The Supreme Court held waiver challenges are not reviewable on direct appeal and must be raised in post‑conviction proceedings under Crim. P. 35(c)
Whether contemporaneous objection is required to preserve a Curtis‑advisement claim	Court of Appeals applied plain‑error because Moore did not object at trial	Moore contended no contemporaneous objection should be required	The Court held contemporaneous objection is not required and plain‑error review is inapplicable
Standard/procedure for post‑conviction review of waiver claims	Some panels treated an adequate Curtis advisement as conclusively validating the waiver	Moore argued a full post‑conviction inquiry into actual knowing/voluntary/intelligent waiver is required	The Court requires the post‑conviction court to decide whether waiver was knowing, voluntary, intelligent; defendant must plead facts to trigger a hearing; if triggered, prosecution must prove waiver was valid
Effect of an on‑the‑record Curtis advisement	Prior precedent (Blehm) suggested a five‑element advisement could conclusively establish waiver	Moore relied on Blehm to argue record advisement controls	The Court rejected the view that adequacy of advisement is dispositive; an adequate advisement is evidence of waiver but defendants may introduce off‑record evidence to rebut it

Key Cases Cited

People v. Curtis, 681 P.2d 504 (Colo. 1984) (established Curtis advisement elements and requirement to ensure waiver of right to testify is knowing, voluntary, and intelligent)
People v. Blehm, 983 P.2d 779 (Colo. 1999) (held waiver challenges should be raised in post‑conviction proceedings; discussed adequacy of advisement)
People v. Harding, 104 P.3d 881 (Colo. 2005) (addressed procedural aspects of waiver review)
Johnson v. Zerbst, 304 U.S. 458 (1938) (federal jurisprudence on waiver of constitutional rights)
People v. Mozee, 723 P.2d 117 (Colo. 1986) (discussed concerns about counsel overbearing defendant's decision to testify)
People v. Simpson, 69 P.3d 79 (Colo. 2003) (standards for pleading facts to warrant an evidentiary hearing in post‑conviction proceedings)
People v. Ziglar, 45 P.3d 1266 (Colo. 2002) (noted Blehm limits on addressing Curtis claims on direct appeal)