2020 COA 128
Colo. Ct. App.2020Background
- Defendant Timothy Houser responded to a Craigslist ad placed by a 16‑year‑old (A.J.), paid $240, and was charged with patronizing a prostituted child under § 18‑7‑406(1).
- Pretrial the court barred a reasonable‑mistake‑of‑age defense under § 18‑7‑407; a jury convicted Houser and he received sex‑offender lifetime supervision (SOLSA); later resentenced to prison after probation violations.
- On direct appeal the Division (Houser I) held § 18‑7‑407 applied to patronizing a prostituted child and declined to address an unpreserved vagueness challenge.
- Houser filed a Crim. P. 35(c) motion alleging statutory vagueness, equal protection and SOLSA challenges, and multiple ineffective‑assistance claims for counsel’s failure to raise those and other defenses; the postconviction court denied relief without a hearing.
- The Court of Appeals affirmed denial of most constitutional claims and ineffective‑assistance claims premised on counsel’s failure to press novel legal theories, but reversed and remanded for evidentiary hearings on two ineffective‑assistance claims: failing to challenge (1) an out‑of‑court photo identification and the search warrant based on it, and (2) alleged outrageous prosecutorial conduct that pressured defense counsel’s withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18‑7‑406(1) (patronizing a prostituted child) is unconstitutionally vague | Houser: statute language is unclear and could convict based on child’s conduct alone | People: statute gives fair warning; patronizing requires defendant to perform prohibited acts | Court: statute is not void for vagueness; summary denial affirmed |
| Whether counsel was ineffective for failing to raise novel constitutional arguments (e.g., challenge § 18‑7‑407, SOLSA, vagueness, equal protection) | Houser: counsel should have advanced these constitutional attacks | People: those arguments were novel/unsupported at trial; counsel not deficient for not pursuing unforeshadowed claims | Court: counsel not ineffective solely for failing to raise novel or unforeshadowed arguments; summary denial affirmed |
| Whether counsel was ineffective for not challenging A.J.’s out‑of‑court identification and the search warrant based on it | Houser: detective showed a suggestive single photo and counsel failed to litigate/suppress | People: record ambiguous; no deficiency shown | Court: factual dispute could show deficient performance and prejudice; remanded for hearing |
| Whether counsel was ineffective for failing to challenge alleged outrageous prosecutorial conduct that led to first counsel’s withdrawal | Houser: prosecutor’s investigation/pressure interfered with attorney–client relationship and counsel failed to litigate it | People: conduct was not outrageous; no relief warranted | Court: claim, if true, could support ineffective assistance; remanded for hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance of counsel)
- People v. Houser, 337 P.3d 1238 (Colo. App. 2013) (direct appeal resolving application of § 18‑7‑407 to patronizing a prostituted child)
- People v. West, 724 P.2d 623 (Colo. 1986) (vagueness test: fair warning and workable standards)
- People v. Becker, 759 P.2d 26 (Colo. 1988) (statute need not be drafted with mathematical precision)
- People v. Madden, 111 P.3d 452 (Colo. App. 2005) (patronizing requires an exchange of value for sexual acts)
- United States v. Morris, 917 F.3d 818 (4th Cir. 2019) (counsel not ineffective for failing to raise novel arguments unsupported by then‑existing precedent)
- Snider v. United States, 908 F.3d 183 (6th Cir. 2018) (same principle regarding prediction of legal developments)