2015 COA 7
Colo. Ct. App.2015Background
- Franco Romero was convicted of first-degree murder, sentenced to life without parole, and his direct appeal and certiorari were denied; he sought postconviction relief under Crim. P. 35(c), which the trial court denied without an evidentiary hearing.
- Romero alleged ineffective assistance by three attorneys: F.G. (who had previously represented him in an unrelated case and met with him pre-indictment and in jail), and appointed trial counsel D.J. and R.C.
- F.G. attended a pre-indictment police interview and later visited Romero in jail after indictment, but never entered appearance or acted as counsel of record for the murder case.
- Trial counsel D.J. and R.C. repeatedly raised competency concerns: motion for psychiatric exam, conflicting expert reports, competency hearing (court found competent), and later complaints about medication access that were addressed by the court.
- Romero claimed (a) F.G. rendered ineffective assistance pre- and post-indictment, (b) trial counsel failed to pursue competency adequately, and (c) trial counsel failed to contemporaneously object to prosecutorial misconduct; the court rejected each claim and affirmed dismissal without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether F.G.'s pre-indictment advice violated Romero's right to counsel | F.G. failed to advise Romero of consequences of interrogation and polygraph, constituting ineffective assistance | Fifth- and Sixth-Amendment rights had not attached: interview was noncustodial and occurred before charges | Denied — no attachment of Fifth or Sixth Amendment; claim fails |
| Whether F.G.'s post-indictment jail visits and advice created ineffective assistance or conflicted representation | F.G. visited and gave contrary legal advice, pressured Romero, and interfered with attorney-client relationship | F.G. never represented Romero at any critical stage, never prepared defense or appeared on record; thus Strickland does not apply | Denied — no attorney-client relationship for this case; no constitutional ineffective-assistance claim |
| Whether D.J. and R.C. were ineffective for failing to adequately pursue competency issues | Counsel failed to press Romero's low IQ and lack of medication as grounds to prevent trial while incompetent | Counsel repeatedly moved for evaluation, obtained evaluations, litigated competency, and raised medication concerns; court made rulings each time | Denied — counsel repeatedly raised competency; no deficient performance shown |
| Whether counsel was ineffective for not objecting to alleged prosecutorial misconduct (perjury threats and closing argument) | Counsel should have contemporaneously objected; failure prejudiced Romero and limited appellate review to plain error | Prosecutorial comments were brief, not outcome-determinative, and overwhelming evidence supported conviction; contemporaneous objections would not have changed result | Denied — even assuming deficiency, Romero failed to show Strickland prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test: deficient performance and prejudice)
- Miranda v. Arizona, 384 U.S. 436 (Fifth Amendment right to counsel attaches during custodial interrogation)
- McNeil v. Wisconsin, 501 U.S. 171 (Sixth Amendment right to counsel attaches only after formal charges)
- Vickery v. People, 229 P.3d 278 (Colo. 2010) (right to counsel includes effective assistance)
- Ardolino v. People, 69 P.3d 73 (Colo. 2003) (Crim. P. 35(c) motion may be dismissed without hearing if record shows allegations lack merit)
- Cronic, United States v. Cronic, 466 U.S. 648 (preservation of certain structural-error principles regarding counsel performance)
- United States v. Martini, 31 F.3d 781 (9th Cir. 1994) (advice from nonrepresenting lawyer does not invoke Strickland unless lawyer represented defendant)