2017 COA 57
Colo. Ct. App.2017Background
- Defendant Breck Torrell Higgins pleaded guilty to felony menacing and was sentenced to 18 months in prison.
- Higgins filed multiple post-sentencing motions, including a Crim. P. 35(c) motion asserting ineffective assistance of counsel and requesting appointed counsel.
- The district court did not summarily deny the 35(c) motion; it served the motion on the prosecutor, received the prosecution’s response, and then denied the motion without a hearing.
- The court never served Higgins’s 35(c) motion on the Public Defender’s office nor allowed the Public Defender to respond or add claims.
- The People argued no duty to serve the Public Defender where the court did not consider evidence outside the record and also argued the motion was successive; the court of appeals rejected those contentions on procedural grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by failing to serve the 35(c) motion on the Public Defender after not summarily denying it | The court only needed to serve the prosecution because it did not consider extra-record evidence here | Higgins argued requesting counsel in the motion required service on the Public Defender under Crim. P. 35(c)(3)(V) | Court reversed: mandatory duty to serve Public Defender when court does not summarily deny the motion |
| Whether the error was harmless | People: merits of Higgins’s claims fail and motion is successive, so any procedural error is harmless | Higgins: failure to serve deprived him of the Public Defender’s ability to respond or add arguable claims, so prejudice may exist | Court: error may have prejudiced Higgins; harmlessness not established because Public Defender could have added claims |
| Whether Higgins’s 35(c) motion was successive (barred because previously raised) | People: claims were or could have been raised in prior 35(b) motion so current 35(c) is successive | Higgins: prior motion sought only sentence reduction (35(b)) not 35(c) relief, so current 35(c) claims are not successive | Court: motion not successive — prior filings sought different remedy, so Crim. P. 35(c) relief not barred |
Key Cases Cited
- Ardolino v. People, 69 P.3d 73 (Colo. 2003) (standard for summary denial of a Crim. P. 35(c) motion)
- People v. Cordova, 293 P.3d 114 (Colo. App. 2011) (preservation requires alerting trial court to the specific issue)
- Silva v. People, 156 P.3d 1164 (Colo. 2007) (statutory right to postconviction counsel requires a showing that the 35(c) motion has arguable merit)