2016 COA 190
Colo. Ct. App.2016Background
- Phipps pled guilty to sexual assault on a child under a plea deal that dismissed other charges and promised non-prosecution on related child-pornography charges.
- He received an indeterminate prison term of 17 years to life.
- Phipps moved for postconviction relief under Crim. P. 35(c), alleging ineffective assistance of counsel; the district court denied without a hearing.
- Police used LimeWire to discover child-pornography on a computer located at Phipps’ home; the search was remote, with a conversation where Phipps admitted possession.
- A video showing Phipps assaulting his stepdaughter and his statements to police formed the core physical and inculpatory evidence.
- Phipps challenged several aspects of counsel’s performance and the plea consequences, but the district court held the record refuted Strickland prongs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of Crim. P. 35(c) without a hearing was proper | Phipps argues a hearing was required | State asserts record refutes claims and no hearing needed | Affirmed; record refutes claims and no hearing needed |
| Whether the Fourth Amendment challenge to the remote LimeWire search was adequately defended | Counsel should have challenged the initial search | No reasonable expectation of privacy in LimeWire-shared files | No prejudice; no reasonable expectation of privacy; challenge unlikely to succeed |
| Waiver of preliminary hearing and failure to request bond reduction | Counsel’s actions amounted to ineffective assistance | Decision to waive hearing and not seek bond was strategic | Strategy-based, not ineffective assistance; arguments rejected |
| Failure to investigate forensic evidence | Counsel failed to challenge the forensic investigation or hire an expert | Evidence of guilt was overwhelming; investigation issue irrelevant to outcome | Prejudice not shown; ineffective-assistance claim fails |
| Whether counsel deficiently advised on plea consequences (parole, restitution, destruction of evidence, etc.) | Counsel misadvised on several plea consequences | Record largely supports advisements; some points lacked specificity but no prejudice shown | Most claims fail Strickland prong; advisements at providency and plea supported; restitution and destruction evidence addressed; parole and violence issues resolved in record |
Key Cases Cited
- People v. Stovall, 2012 COA 7 (Colo. App. 2012) (prejudice in guilty-plea Strickland standard)
- Ardolino v. People, 69 P.3d 73 (Colo. 2003) (de novo review of postconviction denials; strict standard)
- Duran, 2015 COA 141 (Colo. App. 2015) (incorporation by reference not allowed; waiver rules)
- People v. Norman, 703 P.2d 1261 (Colo. 1985) (right to effective counsel; Strickland framework)
- Strickland v. Washington, 466 U.S. 668 (1984) (deficient performance and prejudice prong)
- Chavez v. People, 2015 CO 62 (Colo. 2015) (per se crime of violence for sentencing purposes)
- People v. Zuniga, 80 P.3d 965 (Colo. App. 2003) (conclusory allegations; lack of prejudice)
- People v. DiGuglielmo, 33 P.3d 1248 (Colo. App. 2001) (requirement to seek clarification; providency)
- Ganoe v. United States, 538 F.3d 1117 (9th Cir. 2008) (no reasonable privacy in files shared via LimeWire; public exposure)
- Borowy v. United States, 595 F.3d 1045 (9th Cir. 2010) (subjective belief of non-sharing not enough to create privacy interest)
- Stults v. United States, 575 F.3d 834 (8th Cir. 2009) (LimeWire use defeats privacy expectations)