2017 COA 12
Colo. Ct. App.2017Background
- Defendant Timothy David Smith pleaded guilty pursuant to an unwritten agreement to amended charges and received a 28-year DOC sentence; original sexual offense charges were dismissed.
- Smith filed a timely pro se Crim. P. 35(c) postconviction motion alleging plea counsel ineffectiveness: promising a 20‑year sentence, advising he would serve only 50% before parole eligibility, and failing to investigate/present mental‑health mitigation.
- Appointed counsel supplemented the motion, adding that counsel told Smith to remain silent at the providency colloquy and refused to withdraw the plea when Smith later asked.
- The district court requested a response from the People; the prosecutor attached an investigator’s unsigned report recounting plea counsel’s denials and observations (coherence, no incompetence). Smith replied and requested an evidentiary hearing.
- The district court denied the Crim. P. 35(c) motion without an evidentiary hearing, relying in part on the attached investigator’s report and the plea colloquy; Smith appealed.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether the court may rely on the prosecutor’s investigator report when denying a Crim. P. 35(c) motion without a hearing | The investigator’s report is not part of the record or pleadings; relying on it denied Smith a hearing on disputed facts | The report is a permissible pleading/part of the response and the court may credit plea counsel’s statements (counsel is an officer of the court) | The court held the attachment was not part of the files/pleadings for purposes of Crim. P. 35(c)(3)(V); reliance on it was error |
| Whether the plea colloquy alone defeats Smith’s claim that counsel promised a 20‑year sentence and told him to remain silent | Counsel told Smith to ignore the court’s advisements and remain silent; that allegation raises factual issues outside the record | The plea colloquy showed Smith understood the court was not bound by promises; he should have clarified discrepancies then | Court held the plea colloquy does not conclusively resolve the factual dispute because allegations concern events outside the record; a hearing is required |
| Whether Smith alleged sufficient facts to warrant a hearing on ineffective assistance at plea/inducement to plead guilty | Alleged specific promises and conduct (stay silent, promised 20 years, erroneous parole advice) that induced the plea | People relied on investigator’s report and plea colloquy to rebut allegations | Court reversed as to plea‑phase ineffective assistance and remanded for an evidentiary hearing |
| Whether Smith’s sentencing‑phase ineffective assistance claim warranted a hearing | Counsel failed to investigate/present Smith’s worsening mental health at sentencing, prejudicing Smith | People pointed to the presentence report showing the court was aware of Smith’s depression/anxiety and medications | Court affirmed denial of sentencing claim as conclusory and failing to show prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice standard for ineffective assistance)
- Hill v. Lockhart, 474 U.S. 52 (explaining prejudice inquiry when ineffective assistance leads to a guilty plea)
- People v. Rael, 681 P.2d 530 (Colo. App. 1984) (counsel’s promise about sentence can constitute ineffective assistance)
- People v. Lincoln, 161 P.3d 1274 (Colo. 2007) (attorney’s court statements treated as credible when offered at hearing)
- People v. Scott, 600 P.2d 68 (Colo. 1979) (live testimony better for assessing credibility than cold record)
- People v. DiGuglielmo, 33 P.3d 1248 (Colo. App. 2001) (defendant should seek clarification at plea colloquy when discrepancy is known)
- People v. Blehm, 983 P.2d 779 (Colo. 1999) (use postconviction evidentiary hearing to develop facts absent from trial record)