People v. Anthony Robert Smith
19CA2359
| Colo. Ct. App. | May 26, 2022Background
- Defendant Anthony Smith was convicted by a jury of multiple child sexual-assault and obscenity offenses based principally on victim statements and a video; convictions were affirmed on direct appeal.
- Smith filed a pro se Crim. P. 35(c) postconviction motion asserting twelve claims (ineffective assistance, newly discovered evidence, prosecutorial misconduct) and requested counsel and a hearing.
- The court appointed counsel, who filed a supplemental Crim. P. 35(c) motion that expanded on only three claims and limited relief to ineffective-assistance issues; the prosecution responded and the court denied the supplemental motion without a hearing.
- In a footnote the postconviction court found the remaining pro se claims waived because appointed counsel did not reassert them and the People did not respond to them.
- On appeal Smith argued (1) counsel’s omission did not waive his pro se claims and (2) several claims warranted a hearing; the Court of Appeals held counsel’s omission does not constitute waiver, reversed that portion of the order, and remanded for findings while affirming denial of the claims raised in the supplemental motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed postconviction counsel’s omission of pro se claims in a supplemental motion effects waiver | People: omission equals waiver; prosecution had no duty to respond to issues not reasserted | Smith: counsel’s supplemental filing is additive; omission does not show informed waiver | Court: Omission does not waive pro se claims; reversed waiver finding and remanded for independent evaluation |
| Whether counsel’s conduct regarding alleged ex parte communications with the jury required a hearing | People: any error was invited or waived by defense; no prejudice shown | Smith: counsel’s acquiescence was ineffective; juror inquiry/affidavits needed to show harm | Court: No reversible error; record did not show prejudicial ex parte contact, no adequate showing of prejudice; denial without hearing affirmed |
| Whether counsel was ineffective for not consulting an independent expert to prepare cross-examination of the prosecution’s generalized expert | People: decision not to retain an expert was strategic and reasonable | Smith: an independent expert was necessary to effectively impeach the prosecution’s expert | Court: No ineffective assistance; counsel investigated, sought funds, then reasonably chose not to use an expert; cross-examination was adequate; denial affirmed |
| Whether remaining pro se claims warranted further proceedings or a hearing | People: claims waived and properly dismissed | Smith: claims preserved in pro se motion must be considered and evaluated for hearing | Court: Remanded for postconviction court to independently evaluate the pro se claims and determine whether a hearing is warranted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance of counsel)
- People v. Breaman, 939 P.2d 1348 (Colo. 1997) (appointed counsel not required to prosecute meritless postconviction claims; court must make independent findings)
- Ardolino v. People, 69 P.3d 73 (Colo. 2003) (motion may be denied without hearing only when record conclusively shows claims lack merit)
- People v. Martinez, 70 P.3d 474 (Colo. 2003) (standards for voluntary waiver)
- People v. Dunlap, 173 P.3d 1054 (Colo. 2007) (prejudice prong not met where evidence of guilt was overwhelming)
- Key v. People, 865 P.2d 822 (Colo. 1993) (preserved ex parte communication reviewed for harmless error)