v. Timoshchuk, 2018 COA 153

Background

Maksim Timoshchuk, a Ukrainian-born lawful permanent resident, pleaded guilty/admitted in a global resolution to forgery, DUI, possession, and probation violation; later admitted violation and received a three-year sentence on the forgery count.
After the three-year sentence, DHS initiated removal proceedings, charging aggravated-felony and controlled-substance convictions; immigration judge found him removable and denied his asylum application because the aggravated-felony conviction made him ineligible.
Timoshchuk filed a Crim. P. 35(c) postconviction motion claiming his counsel at the probation-revocation/admission hearing ineffectively failed to advise him of the immigration consequences of his admission and sentence.
The district court summarily denied the motion, noting Timoshchuk had been "advised that the convictions in the plea agreement would have adverse consequences on his immigration status."
The Court of Appeals examined (1) whether probationers have a right to counsel at revocation, (2) what standard applies to counsel’s performance, and (3) whether Timoshchuk’s allegations warranted an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a probationer has a statutory right to counsel at a probation-revocation hearing	Probationer (Timoshchuk): statutory right exists via § 16-11-206’s cross-reference to § 16-7-207; counsel required	People: disputed that statutory cross-reference creates a right to counsel at revocation; constitutional right not clearly established	Held: Legislature granted a statutory right to counsel at probation-revocation first appearance via § 16-11-206’s incorporation of § 16-7-207 advisements (except jury trial)
Standard for evaluating effectiveness of probation-revocation counsel	Timoshchuk: Strickland applies to measure effectiveness	People: did not contest Strickland standard application	Held: Strickland v. Washington two-prong test applies (deficient performance + prejudice)
Whether counsel’s failure to advise on immigration consequences was deficient under Padilla	Timoshchuk: counsel failed to give specific/admissible advice that aggravated-felony conviction and resulting sentence would cause removability and asylum ineligibility; Padilla requires correct advice when consequence is clear	People: argued that Timoshchuk had been advised generally and also faced removal based on a prior controlled-substance plea, so no prejudice	Held: Counsel should have advised with certainty; omission as to removability alone insufficient (Timoshchuk already removable by drug conviction), but failure to advise that aggravated-felony sentence foreclosed asylum could be prejudicial
Whether the motion warranted an evidentiary hearing	Timoshchuk: pleaded sufficient facts and supplied counsel affidavit claiming no specific advisement; asked for hearing	People: relied on plea paperwork and court admonitions asserting advisement occurred	Held: Allegations suffice to require a hearing; summary denial was error — remanded for evidentiary hearing (People may cross-examine counsel and develop record)

Key Cases Cited

Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (minimum due-process requirements for parole/probation revocation hearings)
Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (case-by-case determination whether counsel must be provided at revocation)
Mempa v. Rhay, 389 U.S. 128 (U.S. 1967) (right to counsel when probation revocation leads to imposition of an original sentence)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance-of-counsel test)
Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must give correct advice on clear deportation consequences)
Silva v. People, 156 P.3d 1164 (Colo. 2007) (applying Strickland to postconviction counsel context)
Gehl v. People, 423 P.2d 332 (Colo. 1967) (probationer entitled to counsel at time of sentencing following revocation)
People v. Firth, 205 P.3d 445 (Colo. App. 2008) (applied Strickland in revocation context)