2018 COA 114
Colo. Ct. App.2018Background
- Defendant Jason McGlaughlin pleaded guilty to third‑degree assault and violating a protection order; he was represented at plea by a law‑student extern under C.R.C.P. 205.7 and sentenced to probation.
- McGlaughlin filed a Crim. P. 35(c) motion seeking to vacate his plea, alleging he was unaware his counsel was an unlicensed student, that he never consented in writing, that the student had not been adequately supervised, and that the supervising deputy public defender was not present at the plea hearing.
- The postconviction court denied the motion without an evidentiary hearing, finding the record showed the deputy public defender was present and supervision was adequate.
- The Court of Appeals held as a matter of first impression that, under the Sixth Amendment and Colorado law, a supervising licensed attorney must be physically present in court during all critical stages when a law student represents a criminal defendant; absence is a structural deprivation of counsel.
- The division also held that other violations of C.R.C.P. 205.7 (supervision quality, consent, document approvals) are evaluated under Strickland v. Washington for ineffective assistance — not as automatic structural errors.
- Because the record did not clearly establish whether the deputy public defender was present at the plea hearing or that supervision was adequate, the court reversed and remanded for an evidentiary hearing to resolve those factual issues and then apply either structural‑error relief or Strickland analysis as appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a law‑student‑represented defendant was deprived of Sixth Amendment counsel at plea when the supervising attorney was allegedly not present | Presence of a licensed supervising attorney is required at critical stages; absence denies counsel | McGlaughlin argued supervising deputy was not present and thus he had no licensed counsel | Court: Supervising licensed attorney must be physically present at critical stages; absence is structural error requiring vacatur if proven |
| Standard for other violations of C.R.C.P. 205.7 (consent, supervision quality, document approvals) | Such violations can invalidate representation and be structural | McGlaughlin argued multiple rule violations (no written consent, student handled felony stage, no judicial notice student status) | Court: Other violations are assessed under Strickland (ineffective assistance) rather than automatic structural error |
| Whether postconviction court could deny Crim. P. 35(c) motion without a hearing based on record | Records (minutes, transcripts) clearly established supervising attorney presence and adequate supervision | McGlaughlin argued record was ambiguous and alleged facts warranted a hearing | Court: Record did not clearly establish supervising attorney was present or supervision adequate; remand for evidentiary hearing required |
| If supervising attorney was present, whether McGlaughlin showed prejudice under Strickland | No prejudice shown; defendant knew plea consequences and signed written plea | McGlaughlin argued he would not have pled if fully informed (e.g., domestic‑violence finding) | Court: If supervising attorney present, remaining claims must be evaluated under Strickland; defendant bears burden to show deficient performance and prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
- Wheat v. United States, 486 U.S. 153 (Sixth Amendment requires licensed counsel at critical stages)
- Cronic v. United States, 466 U.S. 648 (structural error when counsel completely absent)
- People v. Coria, 937 P.2d 386 (Colo. 1997) (law students are unlicensed; no Sixth Amendment right to unlicensed counsel)
- Carmichael v. People, 206 P.3d 800 (Colo. App.) (acceptance of plea is a critical stage)
- In re Denzel W., 930 N.E.2d 974 (Ill. 2010) (distinguishing supervising‑presence structural rule from Strickland review for other violations)
- Washington v. Moore, 421 F.3d 660 (8th Cir.) (apply Strickland to rule violations other than absence of counsel)
- State v. Loding, 895 N.W.2d 669 (Neb. 2017) (supervising presence suffices; supervision quality evaluated under Strickland)