*1 CARMICHAEL, Petitioner Richard S. State
The PEOPLE Colorado, Respondent.
No. 07SC478. Colorado, Court
En Banc. 13, 2009. April May 2009.* Rehearing Denied * participate. grant petition; Eid does not Justice Coats would Justice *2 8Q2 Opinion delivered MARTINEZ
Justice Court.
Introduction I. a num- faced Richard *3 including two charges, criminal of
ber aon assault degree sexual of third charges involving incidents stemming from two child the seri- Because children. different two him, Carmi- against charges ousness twenty sentence minimum faced a chael maximum, and, two at probation years if convicted life sentences attorney Car- offered prosecuting The trial. Carmi- under which bargain, michael sen- receive chael awith tence counsel, re- Carmichael advice On years. proceeded bargain and jected and sentenced was convicted where Following his probation. twenty years of re- a motion filed conviction, Carmichael as- trial, alleging ineffective a new questing attor- stemming from of counsel sistance the relative explain fully failure ney's court trial The offer. benefits appealed. and Carmichael motion denied court's trial upheld the appeals motion. deny the decision reverse. and now certiorari granted We of counsel assistance ineffective apply the Su- United by the forth set standard Washington, in Strickland preme Court L.Ed.2d 668, 104 S.Ct. find we standard Under constitution- representation Carmichael's representa- inadequate and that ally deficient sup- prejudice, him substantial caused tion Because objective evidence. ported this case to resolve able are we decline grounds, of counsel involved remaining issues address appeal. History Procedural II. Facts Defender, Kar- Wilson, Public
Douglas K. Defender, Den- Deputy Public Taylor, en N. RR. Incident A. Petitioner. Colorado, Attorneys ver, sum- spring or date an unknown On spent A.B. friend and her R.R. General, mer of Ka- Suthers, Attorney W. John house, after Carmichael's at Sheree night Attorney Gen- Assistant Gillespie, tharine J. center. Sher- recreation local at the a dance Division, Justice Criminal eral, Appellate Michael Carmichael ee Colorado, Attorneys for Re- Denver, Section, girls went testified A.B. daughter. spondent. sleep in the Carmichael basement around and J.V.N. spent great deal of time at the am., 1:00 with A.B. and sleeping RR. family Carmichael home. separate couches and sleeping Sheree on the On June J.V.N., who was thirteen floor. A.B. testified that she fell asleep right years time, old at the returned from a multi- away, but was awakened a few hours later day camping trip with the family. light shining eyes. in her RR. and Sheree Rather than returning to home, her own continued sleeping. Pretending to be asleep, J.V.N. spend decided to night at A.B. claimed she saw shining Carmichael home. J.V.N. testified that she flashlight over girls, and subsequently was playing with Sheree and a few other observed approach RR., lift her friends the Carmichael basement. Over shirt, and touch RR., her breast. who was the course of the evening, she accepted four *4 time, thirteen at the did not up wake and or five shots of alcohol from Carmichael. does not have recollection of this inci- Carmichaelalso offered shots to Sheree and trial, dent. At that, A.B. stated after several son, Chad. Offering small amounts of minutes, she observed Carmichael up stand alcoholto the children was an accepted prac- and turn off the flashlight. A.B. testified she tice in both the V.N. and Carmichaelfamilies. noise, heard a loud but the girls other did not up. wake Carmichael then left the basement Later that evening, J.V.N. came back up- and upstairs. returned lay stairs and down on the go couch to sleep. Carmichael was lying on a The loveseat following day, the girls three spent the day that, J.V.N. stated together at the Carmichael house. A.B. nearby. pretended she asleep, be told Carmichael moved over R.R. what she observed. The two also couch, touched her times, hand several told lifted incident, Sheree about the but girls shirt, her and touched her stomach. decided to When keep it a secret. pretended J.V.N. up, wake Carmichael wife, Carmichael and his Sheila Carmicha- moved back to the Carmichael, loveseat. in el, that, testified night in question, contrast, testified placed that he a blanket on they asleep were in bedroom, their when J.V.N. and removed her shoes when she fell Sheila heard a loud noise and Carmi- woke asleep. chael investigate. Carmichael checked the house with a flashlight, including thereafter, Soon the base- JV.N. returned to the basement, ment. While woke Sheree and Carmichael was in the base- Sheree what told ment, Sheila stood at top happened. of the stairs. J.V.N.'s dad pick came to her up and Sheila testified that she never reported J.V.N. police sight incident to lost Carmichael into, as he looked day. but next did not maintained that he Carmichael enter, the room where girls J.V.N., were never sleep- touched other than possibly ing. In the morning, Sheila found a fallen her hand or stomach while brushing placing window in blind the basement and assumed blanket over it her.
was the cause of the noise.
Authorities did not learn about C. Trial RR. incident until the mother of the other alleged In February police arrested Richard victim, J.V.N., police informed during an in- Carmichael charged him with one count vestigation second, of the subsequent, inci- of sexual assault on a child one in a dent. J.V.N.'s mother learned about position of trust involving RR., one count of first through event following chain of sexual assault on a RR., child involving one communication: Sheree, A.B. told Sheree count of contributing to the delinquency of a J.V.N., told and J.V.N. told her mother. minor, one count of attempt criminal to com- mit sexual assault on a child one B. J.V.N. Incident position of J.V.N., trust involving and two incident, Prior to this and her fami- J.V.N. counts of eriminal attempt sexual commit ly very were close to the Carmichaels. Car- assault in the third degree, one each for the michael and J.V.N.'s cousins, father are first RR. and J.V.N. incidents. Fritz's Mr. Carmichael, learning of upon charges, Carmi- these serious with Faced trial advice, for new a motion filed deficient attorney Carl retained
chael
Car-
counsel.
due to
to dis-
client
met
Fritz
Mr.
Fritz.
known
he had
that
testified
michael
ex-
Fritz
offenses.
charged
cuss the
Mr.
by going to
actually faced
penalties
offense,
charged
of each
elements
plained
four
a class
guilty to
pleaded
he would
he faced
inform
but did
awith
a child
against
assault
felony of sexual
if convicted.
life sentences
two
probation.
years of
stipulated
re-
informed
Fritz
Mr.
repre-
Mr.
concluded
trial court
The
offense.
for a sexual
quirements
process
plea-bargaining
during the
sentation
of a scheduled
date
April
On
deficiency
deficient,
determined
but
was
County
Arapahoe
hearing, the
preliminary
Carmichael.
materially prejudice
did
informed
Attorney's office
District
to one
willingto
if Carmichael
Appeal
D.
a child
assault
sexual
count
class four
appeal
notice
timely
filed
to dismiss
agree
prosecution
trial court
designation
requested
a sen-
stipulate
charges
remaining
was to
record
This
May of
record
a ten
probation,
tence of
following June.
by the
completed
*5
minimum.
year
Barnes, was
reporter, Valerie
assigned court
transcribing
for
her deadlines
to meet
unable
of this
Carmichael
informed
Fritz
Mr.
to com-
hired
reporters
Other
record.
the
in a
stated
Mr. Fritz
plea offer.
proffered
so be-
to do
unable
were
the
plete
inform
to
he failed
that
record
affidavit
subsequent
unreadable
were
*6
the United
Supreme Court,
because
to effective assistance of counsel." McMann
assistance of counsel is necessary
Richardson,
"so that
v.
759,
397
14,
U.S.
771 n.
90
the
may
accused
know precisely what
1441,
he is S.Ct.
25
(1970).
To succeed
doing, so that he is aware of
prospect
the
on a claim of ineffective
counsel,
assistance of
going
jail
to
prison,
and so that he is
a defendant must meet
the two-prong test
fairly
treated
by
prosecution."
the
set forth by the United States Supreme
Arger
singer
Hamlin,
v.
25, 33,
407 U.S.
92 S.Ct.
Strickland,
Court in
668,
466 U.S.
104 S.Ct.
2006,
(1972).
must show law, Mr. applicable understanding Sec 2052. at Id. "deficient." was plea offer that the told Fritz he suffered show must ond, the defendant Car punishment essentially identical per deficient of this result aas prejudice trial, and if convicted face satis has michael hold Carmichael Id. We formance. acceptable." "not offer test. characterized prongs both fied February Transcript, Trial Court advice, Performance- Car Deficient Mr. Fritz's B. reliance 2002. at 79. plea offer. rejected the michael his attor to show For constitutionally defi was ney's performance admission, did Fritz, by his own Mr. made counsel cient, must demonstrate opportunity provide fune- "that counsel so serious errors regard- decision reasonably informed make by the guaranteed the 'counsel' tioning as offered benefits ing the relative has Id. "[A] Amendment." Sixth Carmi- he allowed stated Fritz bargain. Mr. reasonably informed make a without offer bargain reject chael to offer." accept whether decision reduce plea would informing him that failure counsel's 43. F.2d at Day, 969 Thus, exposure opportunity present that, at years or twenty from will decision reasonably informed make or more to one exposed would be representation. deficient constitute Depart- sentences life repre Fritz's of Corrections. agree Mr. ment parties findWe deficient. case was in this sentation comparative sentence "Knowledge of aggravated. particularly deficiency to be accept standing trial exposure between fundamentally misunderstood Mr. to the erucial will often ing charges consequences potential Day, guilty." whether decision Fritz testified Mr. Carmichael. against failure to F.2d at sentencing specialized unaware he was regarding client appropriately under offenders sex requirements bargain in relation attractiveness Act, Supervision Lifetime Offender Sex constitution trial was going to risks of to the Instead, he mis 16-13-804, C.R.S. § United See performance. ally deficient *7 sub would be Carmichael takenly believed (2d 376, Cir. Gordon, 380 F.3d 156 sentencing guidelines. felony general ject to underestima 1998) attorney's gross (deeming to con failure mistake, with a combined This to be exposure sentencing tion of defendant's research, Fritz to tell led Mr. adequate duct repre constituting deficient duty of a breach probation for qualify he "would Carmichael the second sentation). turn to therefore time," if even doing any not be he and would inquiry. of prong Fritz Mr. no time did At at trial. convicted face indetermi would that he tell Carmichael Prejudice C. trial and to if he went life sentences nate a defen prejudice, lost. To establish were so errors "counsel's show must attorney dant prosecuting Therefore, when a fair deprive the defendant toas Carmichael, serious he was plea offer made a Strick is reliable." trial, result trial whose the attractive evaluate properly unable In 687, land, 104 S.Ct. at a mini faced offer. Carmichael of that ness show words, must "defendant other probation twenty year indeterminate mum that, for but probability a reasonable is there of two sentence a maximum ary sentence errors, the result unprofessional counsel's guaran no with life sentences indeterminate A different. have been (2000). would proceeding 16-13-804, C.R.S. § probation. tee of suffi probability ais probability of inde a sentence reasonable offered was out confidence undermine mini cient year a ten terminate also 694, 2052. See S.Ct. 104 come." to one pleading in return mum (Colo. 937, Garcia, 941 P.2d 815 People v. a assault felony count of sexual four class
807
1991)
).
(adopting
context,
Strickland
In this
by
faced
going to trial. See Gor
Carmichael must demonstrate there
don,
is
rea
("[The
808 objective ev- Once improper. is presumption States, F.3d v. United
Cullen
a defen-
support
supplied
has been
a trial
idence
Thus,
Cir.1999).
we review
while
(24
review
claim,
should
trial court
of discre-
dant's
abuse
findings for
factual
court's
weight
supplying additional
to those
without
of law
evidence
application
tion,
review
claims.
side's
to either
suspicions
novo.
findings de
fmdmg
trial court's
disagree with
found Carmicha-
trial court
Ultimately, the
First, in consid-
of
case.
as a result
in this
prejudice
prejudice
no
of no
el suffered
sup-
objective evidence
of
existence
be-
ering
largely
performance,
inadequate
prejudice,
claim
Carmichael's
porting
not believe
judge did
trial court
cause
stated,
willing
court
to admit
be
would ever
carefully for corroborat-
(unreadable)
The trial
bargain.
look
of a
part
guilt as
testimony of Mr.
testimony in the
ing
stated,
evi-
tangible
Hammond,
and
and Mr.
I have
is that
am in here
I
problem
The
to believe
led me
have
that would
dence
heart, knowing
my
believing in
difficulties
taken
have
would
Defendant
that
my observation
through
I do
Defendant
adequate
given
he been
had
bargain
months-I
past several
him over
an indication
advisement,
see
I cannot
and
particular
that
believing
difficulties
have
on
So,
of corroboration
for lack
of that.
the offered
taken
would
(unreada-
issue,
I think we've
and as
that
notwithstanding proper and
bargain,
finding,
that
ble)
to arrive
specificities
say
Why
I
this?
do
advisement.
accurate
(unreadable)
time
at this
to find
going
I'm
way he-com-
say this because
I
met.
been
has not
the test
prong
that
De-
vigorously
and
repeatedly
pletely,
19, February
Transcript,
Court
Trial
innocence
protested
had
fendant
above,
at least
we find
As discussed
2001.
by all
that
process,
trial
throughout
corrobo-
objective evidence
sources
three
at trial
advice
accurate
accounts
therefore
prejudice. We
rating Carmichael's
remain silent
up his
gave
its discretion
abused
trial court
find
(un-
fairly
testified,
vigorously,
makmg its
evidence
failing to consider
at the
readable)
his innocence
maintained
determination.
trial.
time of
court, considering
Second, the trial
court's
the trial
it seems
at 18.
Id.
,
prejudice,
evidence
stated
wholly
based
is
prejudice
no
finding of
(unreadable) it's been
then
will
The court
at trial.
innocence
assertion
prob-
a reasonable
there is
established
may maintain
However,
preponderance
ability,
based
entering
advice
into
evidence,
the deficient
that absent
while nonetheless
innocence
different,
in this
which
The United
plea agreement.
would
the result
a valid
had
the advice
the-if
means that
an ad
context
whether
considered
Supreme
Court
range
proper
a valid
necessary
and a
correct
guilt
been
mission
(unreadable)
Alford,
him
before
spread
have been
in North Carolina
agreement
bargain,
L.Ed.2d
I'm
proffered
accepted
U.S.
trial I
gone to
and not
"I'm
going
maintained
Alford, the defendant
myself
n.
at 29
find
guilty."
by. But I do
Ibut
bound
don't feel
the Colorado
agreement
a defen
found
Supreme Court
S.Ct.
(unreada-
they say post-trial
agreement
when
Court
into a valid
enter
*9
could
dant
reviewed
ble)
to be
are
most
by a
"while
because
admitting guilt,
without
of
a
suspiciously.
waiver
of both
guilty consist
of
pleas
guilt,
of
express admission
trial and
em-
trial court
believe
17. We
Id. at
requisite
a constitutional
is not
element
latter
it held
when
standard
incorrect
ployed an
penalty."
a criminal
imposition of
to the
corroborating evidence
that,
objective
even
Thus,
S.Ct.
preju-
of
claim
a defendant's
presented,
were
real
acknowledgedthe
specifically
has
Court
unrelia-
to be
presumed
is nonetheless
dice
inno
maintain: their
who
ity that individuals
type
this
operation
We believe
ble.
may
cence
nonetheless decide to accept
guilty,
a
because he insisted he was innocent.
plea offer.
protestations
Because
by
innocence
a de-
fendant are
dispositive
prejudice
Therefore, we believe a
protes-
defendant's
inquiry,
they
we find
insufficient,
are
as a
innocence,
alone,
tations of
standing
are in-
law,
matter of
outweigh
objective
evi-
support
sufficient
finding
prejudice
of no
prejudice
dence of
presented by defendant.
weighed against objective
when
evidence of
Cullen,
prejudice.
See
cence is a factor relevant to conclusionas remedy The to whether he has shown a proba- constitutionally reasonable performance deficient counsel bility "should that he would pled guilty, have it is dispositive."). tailored to large injury A number suffered and defendants should not unnecessarily will justice infringe enter into system the criminal on competing inter maintaining innocence, ests." Morrison, their United only States v. to later admit to they the eriminal acts commit- addition, ted. To a defense address attorney's injury accu- suffered presentation here, rate available may outcomes order a pro new encourage viding to admit Carmichael an opportunity engage actions plea negotiations applicable face the consequences. A the benefit de of effec fendant tive Riggs Fairman, who receives counsel. inadequate and defec 399 F.3d (9th Cir.2005) ("When tive regarding options available him through bargain deprived or at counsel has trial is a defen deprived dant of a opportunity bargain, may intelligently choose to evaluate the vacate the situation. conviction parties defense at return the torney required to the "explain bargaining developments stage."). in the case to the extent reasonably neces A new trial with effective counsel will re sary permit the client to make informed store Carmichael position enjoyed regarding representation," decisions in prior to Mr. Fritz's performance. flawed cluding offers, available regardless of a While some courts have held an order for a defendant's claims of innocence. Criminal new trial supplemented must be with a re (American Justice Section Standard 4-3.8 quirement prosecution subsequently 1990). Ass'n, Bar An attorney's failure to previous reinstate the plea offer, see Leather provide this information to defendant de Palmer, man v. 583 F.Supp.2d prives him opportunity of an to reassess his (W.D.Mich.2008) (citing Satterlee v. Wolfen statements of innocence. barger, (6th 453 F.3d 370-71 n. 7 Cir. The trial court's reliance on Carmichael's 2006)), we believe such a remedy is not nar insistence of innocence is particularly trou- rowly tailored to injury address the suffered. where,
bling here, a trial judge's opinions Access to an attractive offer is not a regarding the likelihood a defendant would constitutional right, and thus the constitution accept personal are based on require does not an offer to be reinstated. subjective impressions, rather than identifi- Rather, a defendant who has received inef able words or particular actions of this defen- fective assistance of counsel has been de dant that we could review as record support prived of his constitutional right to effective for the court's conclusion. Although an eval- competent counsel and counsel will address prejudice uation of will require a trial court injury. To focus the remedy on the credibility make determinations regarding foregone plea offer is to confusethe nature of relevant testimony, we find no sup- record injury suffered. losing Rather than port for the trial court's conclusion. benefit of potential plea bargain, Here, there is prejudice. evidence of defendant has lost the effective assistance of only remaining support for the conclusion of counsel to which he is constitutionally enti *10 prejudice no is the trial judge's court belief tled. a counsel, restoration of that that Carmichael would be unwilling to rather than a mandated sentencing outcome,
81Q adequately negotiate or to failure counsel's way address to narrowly tailored most is the deal, the Su plea concerning a him advise by Carmichael. suffered prejudice the firmly holding in Hill rested preme Court's are new trial for proceedings When cannot be guilty plea that a conclusion on its course, may, of undertaken, parties the if it would voluntary or effective considered By restoring negotiations. reengage in coun for defense but entered have been a he will right to assistance. unreasonably deficient sel's he to that which similar position bargaining re Supreme Court Similarly, when provide Carmi- This will in 2001. enjoyed Washington to the in Strickland ferred in engage opportunity chael proceeding of a the outcome that likelihood rep- of effective the benefit negotiations embellishing upon different, it was might be and counsel. resentation materiality in the its definition deficiency or an error context assistance IV. Conclusion confidence undermine sufficiently grave to of Car- representation find Mr. 466 U.S. legal proceeding. of a outcome Fur- constitutionally deficient. michael (1984). S.Ct. stan- objective evidence ther, adopting notion that the holding was of its The thrust presented sufficient dard, find Carmichael we reliability of a defen goes to the prejudice support corroborating evidence objective Strickland, punishment. or conviction dant's re-we Because prejudice. contention his 2052; Kimmel 688, 104S.Ct. 466 U.S. cf. the ineffective the basis of this case solve Morrison, 477 U.S. man v. claim, decline of counsel assistance (1986)(Powell,J., 2574, L.Ed.2d 305 S.Ct. by Carmi- raised arguments the other reach that (emphasizing concurring) judgment of reverse We therefore chael. with defen is concerned assistance effective to the the case and remand appeals, court of determination fair and reliable right to dant's trial. for a new district innocence). sug It nowhere or guilt his preju a criminal gested that dissents. COATS Justice sense, by his diced, constitutional unreasonable, failure, even i#f counsel's participate. EID does Justice determining fairly proceeding a trial avoid COATS, dissenting. JUSTICE innocence of guilt or the defendant's him. charges against majority extends I believe Because jurisprudence materiality, question is Supreme Court purposes For United bargaining pro- "entire contemplated not whether way that was never in a court, proceed- criminal stage that of a a critical not be sanctioned cess" is is, is it majority misapplies proceeding assuming it what ing, I believe but because of materiali- newly adopted acceptance of standard its even Unlike stage of. a critical case, I re- offer, in the termination results which ty to the cireumstances by entry of a proceeding dissent. of a criminal spectfully permits offer rejection of a plea, the it clear majority, I consider Unlike trial and to continue proceeding criminal extended has never Supreme Court of a in the outcome Confidence verdict. remedy for ineffective by a de- undermined trial could be criminal In its semi process. plea-bargaining only in accept failure fendant's Lockhart, it found in Hill v. holding nal guilty to by pleading sense the contrived deficiencies counsel's that a defense simply else, able may have been something they resulted material considered could be guilt or to determine proceeding avoid a entry rights and of trial waiver in a mistaken alto- offense more serious innocence 52, 58-60, 106 guilty plea. of a gether. from Far L.Ed.2d S.Ct. materiality for if the standard it Even process plea-bargaining holding that in a adopted negotiations deficiencies de "proceeding" constitutes self and now jurisdictions, of other remedy number to a entitled could be fendant *11 $11 majority, ultimately were to upheld by be treatment, his sex offender which ap- he Court, Supreme United States I believe peared, time, at the unwilling to do. Where the record in this case could not entitle the (if defendant faced lifetime probation not to relief. Both the deal re- revocation subsequent imprisonment) in jected by the defendant and exposure case, his either surely the likelihood of early upon proceeding to trial involved conviction release would have to be the determinative felony offense, of a entails, sex with all that factor. including registration aas sex offender and Finally, I would not majori consider the an indeterminate sentence with life at its ty's remedy appropriate, even if I believed upper end. Whether or not this defense provided the constitution the defendant a fully understood the intricacies of remedy for ineffective bargaining. sentencing under Supervision the Lifetime I agree While that the defendant should not Act, Sex Offenders clearly he advised the be entitled to demand the offer he earli (and understood) the defendant rejected, er I fail why to see his conviction offer would include a recom- should be vacated regard without to his en probation mendation to rather than prison try of a plea. past, In the where we sentence, which by going trial, he risked have found error affecting only greater but likely that he was to be sentenced to offense, we have it appropriate considered probation in event. remand for either a new trial on greater only difference between the charge defen- entry judgment on a lesser dant's actual sentence and possi- the lowest offense, included at the prosecu choice ble may sentence he See, have received taking tion. e.g., Crespin v. People, 721 P.2d offer was the discretion to terminate (Colo.1986); 692-92 In re: People v. cf. his lifetime sentence to supervision intensive Lopez, (Colo.2006) (with P.3d
probation only after holding judgment whether same rationale years in the latter case, distinguished as twenty years from in apply should to resentencing following the former. In view of the violation). substantial ad- Blakely Where a defendant is vantages gained to be and the minimal prejudiced, all, risks only by unintelligently assumed proceeding to I consider foregoing a particular offer, and the the majority's assessment of the likelihood prosecutor willing offer, make the same the defendant would have chosen to I see no why reason the defendant should be plead guilty, had he understood disparity, again reject entitled to that offer pro to be unrealistic. I also think its conclusion ceed to trial a second time. in this case demonstrates fllusory nature majority, Unlike the I consider it clear that majority's "objective evidence stan- Supreme Court has not far thus extended dard." remedy its for ineffective assistance of coun- By accepting plea deal, the defendant sel to include ineffective negotiating; would have foregone opportunity light to es- existing its jurisprudence, I do innocence, tablish his which steadfastly he look for it to any event, do so. I maintained throughout, and avoid stigma anticipate would not Court's being forced register felony as a sex extension of its assistance materi- offender. In exchange, likely gain ality standard in a case which that stan- nothing but to be is, considered view, dard in my clearly so not satisfied probation release from sooner. The anyway. record indicates that despite some deficiencies in his I therefore respectfully dissent. counsel's (although advisement in court's Crim P. 5 possible advisement of the risked),
sentence he the defendant was cor- rectly advised that possibility even the
earlier release from would almost surely contingent upon willingness
admit and discuss his sexual
part
offenses notes
Barnes'
Ms.
cause
bargain
rejection of the
that
Carmichael
incomplete.
charged offenses
the
at trial of
and conviction
possibility
the
to
expose Carmichael
lacking
complete
could
2003, still
August of
life
mandatory consecutive
a motion
record,
two
filed
Carmichael
trial court
Mr.
parole.
sentences,
guarantee
no
violation
conviction
to vacate
mini-
that
tell Carmichael
not
This
appeal.
Fritz did
timely
right
process
due
supervision
probationary
court,
length of
mum
trial
remanded
was
motion
be
trial would
at
if convicted
receive
would
records
cases with
other
along with several
he would
years,
twice
twenty
Counsel
notes.
Barnes'
Ms.
on
dependent
plea offer.
accepted
facing if he
affect
be
other
a number
for Carmichael
give Carmi-
not
he did
that
also stated
involved
subpoenas
issued
defendants
ed
favorability of
regarding
testimony
chael
toas
seeking their
reporters,
court
advice
incorrectly state
but did
bargain
Despite
Barnes' work.
quality of Ms.
Carmichael
that,
if convicted
the trial
that
ongoing insistence
sentence
probationary
same
up
end
the record
incomplete,
remained
record
re-
bargain. Carmichael
offered
complete in Novem
sufficiently
deemed
day. Mr.
that
later
plea offer
jected
recertified
case was
of 2005.
ber
pos-
faced the
unaware
Fritz was
Car
2006,
affirmed
which
appeals
court of
until
life sentences
appeals
sibility of
The court
convictions.
michael's
awaiting
while
information
this
he learned
ruling on ineffective
court's
the trial
affirmed
-
jury
verdict.
sup
"record
based
of counsel
assistance
Carmi
conclusion
court's
trial
for the
port"
2001,
went
In October
offer,
accepted the
chael would
attempting
him of
jury acquitted
trial. The
People v.
attorney's advice.
of his
regardless
but convicted
J.V.N.
touch
inappropriately
(Colo.App.2007).
47,
Carmichael,
53
P.3d
179
Carmi-
relating to RR.
charges
him of the
this court.
from
review
sought
pro-
twenty years of
chael was sentenced
reverse.
certiorari,1
now
and we
granted
We
bation.
constitu-
denied his
is
Whether
following
1.
five
granted
certiorari
of coun-
right
to the effective
tional
issues:
po-
know
does not
sel when
805
Analysis
III.
applicable
is
to the
entire
bargaining
process,
just
the decision to enter a
Right
A. The
to Counsel
guilty plea. A defendant's decision whether
An individual accused of a crime
guilty
proceed
to trial "is ordi
right
has a
to counsel. U.S. Const. amends.
narily the most important single decision in
VI, XIV;
II,
Colo. Const.
§
art.
16. This
any criminal
Keane,
case." Boria v.
99 F.3d
right extends to "every
stage
critical
of a
492,
(2d Cir.1996) (internal
496-97
quotations
.
criminal proceeding." Key
People,
v.
865 omitted)
822,
(Colo.1994).
P.2d
"Stages of crimi
jurisdictions
all
to consider
nal
proceedings have been held to be 'critical'
question
rejection
have found
of a
where
offer
there exists more than a 'minimal risk
to be a
stage,
critical
entitling a
absence of the defendant's counsel
effective assistance of counsel.2 A
might
impair the
right
defendant's
to a fair
will engage evaluative,
same
weighing
trial."
(quoting
Gilbert
California,
v.
process when considering
U.S.
plea offer,
87 S.Ct.