Downey v. People
25 P.3d 1200
Colo.
2001
Check Treatment

*1 employer's follow employee failure that Petitioner, DOWNEY, legiti employer Gregory gave procedures call-in taking an nondiscriminatory reason mate against an em action employment adverse leave); Holmes FMLA who was ployee of the State The PEOPLE JTM, Co., 1998WL 96-1424 No. Boeing The Colorado, Respondent. *7 LEXIS Dist. U.S. 1998)(stating that it would (D.Kan. Feb.3, No. 99SC664. em an prohibits FMLA hold that absurd Supreme Court fail employee for an disciplining ployer expressly is that procedure Banc. follow En ing to act). employee on An in the authorized 25,2001. June standard the same must follow leave FMLA employee an procedures reporting Gunnell reason. See any other leave Coll., 152 F.3d Valley State Utah Cir.1998)("Under FMLA, employee an no leave has or is on requests leave

who re employee who an rights

greater work.")

mains case, aware Trujillo was well

In this procedures since reporting City's Leave II. during them

followed Trujillo matter a factual found as

officer that he was notice adequate

had received daily aon in his absences required to call Trujillo's claim She dismissed

basis. require him from this had excused Thomas worry Trujillo not to he informed ment when this "stretched job, stating that about interpretation any reasonable

bounds of Furthermore, a su statements." [Thomas's] Trujillo, informed expressly pervisor follow the III, required to he was

Leave reporting procedures. call-in require City standard

procedure was the absence, we conclude for all leaves

ment it FMLA when not violate City its failing to follow Trujillo for

terminated procedures.

usual call-in

IIL City's termination conclude

We pro- did not violate

Trujillo's employment reverse of FMLA.

visions and remand appeals' it to the dis- to return directions

case with consistent

trict court for opinion.

Here, supports the trial record advisory appellate counsel finding that role and exercise not assume broader repres degree of control agree with both *3 entation.1 appeals that of and the court trial court a claim for ineffec may not maintain Downey appellate counsel. advisory of tive assistance we affirm the appeals. court of L. Denver, CO, Attorney for Pe- Hazen, Jane (Dow- defendant, Downey Gregory titioner. contra- possession of convicted of ney), was General, Evan Salazar, Attorney W. Ken to com- band, escape, conspiracy attempted General, Appellate Attorney Jones, Assistant counts of habitual escape, and five mit Denver, Section, Division, Justice Criminal a notice of Downey filed After criminal. CO, Respondent. Attorney for of ineffectiveness raising the issue of appeal counsel, motion counsel filed a his trial Opinion the delivered MARTINEZ Justice appointed The trial court to withdraw. the Court. Downey appeal. in his represent counsel to the defen- consider opinion, we In this his of ineffective dant's claim appointment Despite the trial court's appointed attorney, who was prior appellate counsel, private attor Downey retained advisory counsel. Gen- as by the trial court appeal asked the him with his but ney to aid advisory coun- by assisted erally, a defendant coun him to without court to allow has himself and represent to sel has elected Downey to allow agreed sel. The by an represented right the be waived attorney appointed the proceed pro but who has attorney. a defendant to continue Downey privately had retained has no constitu- counsel right waived partially advisory counsel.2 After a as act counsel, he advisory right tional Downey a Crim.P. appeal, filed successful as- of ineffective ordinarily maintain 35(c) claiming ineffective However, such advisory counsel. sistance Specifically, advisory appellate counsel. his ineffective claim for may have a a defendant appellate advisory Downey claimed that his if counsel advisory such provided ineffective assistance had role, a de- and exercises a broader assumes issue of ineffective by raising the legal repre- gree of control part of appeal of in on direct instead to all or some of trial counsel respect sentation proceedings.3 proceedings. post-conviction attorney immedi- as ment Although Downey both ineffec- made claims for regarding ately the situation. and ineffective contacted the court assistance of trial counsel tive attorney we are con- agreed would assistance of The trial court adviso- claim that his here with cerned with the under- continue as ry counsel was ineffective pay standing would not for services that the State opinion address Dow- does not by covered the retainer. of trial ney's claim for ineffective counsel. of a claim of 3. Review is is raised on direct trial counsel hearing present attorney at the 2. This was not existing a claim of record, whereas to the limited appointed him as which the trial court trial counsel raised ineffective Further, not know trial court did counsel. supplement- already paid Downey had supporting the claim. evidence $3,000 ed appointed as it retainer when Blehm, P.2d learning appoint- After motion, Romero, (quoting P.2d at 1263 At a the Crim.P. Colo. Downey testified that his 16). II, § Const. art. an accused agreed to write the briefs proceed pro who elects to relinquishes se Downey agreed sign but that the many of the traditional benefits associated if proceeding pro briefs as he were se. In right with the including the Sixth contrast, appellate counsel testi- Amendment to the representa effective fied that wished to himself Faretta, tion of merely and that counsel agreed to act as S.Ct. 2525. accepted counsel. The trial court advisory appellate counsel's account of the In a defendant who elects situation and held solely had acted se and waives the *4 counsel. the trial counsel does not have a right constitutional court concludedthat could not main- Romero, to counsel. 694 P.2d at tain a claim for ap- ineffective assistance of 1265, Although proa se defendant has no pellate counsel under the circumstances. right constitutional a affirmed, appeals The court of holding that may, nonetheless, permit a defen a defendant relinquishes right who to dant the type assistance of some representation by counsel also relinquishes McKaskle, counsel. 183, 465 U.S. at 104 right pursue any claim of ineffective 944; Romero, 1265; S.Ct. 694 P.2d at Reli People Downey, v. 994 People, 549, 554, v. 195 Colo. 579 P.2d ford 452, (Colo.App.1999). P.2d 454 granted We 1145, (1978). occurs, 1148 When this adviso certiorari.4 ry counsel serves as a resource available to assist the legal procedur defendant with and

IL. al matters and to call the trial court's atten tion to matters favorable to the defendant. It is well established that a defen represents dant who right Romero, himself waives the 1265; 694 P.2d at Reliford, 195 thus, and he does not have a claim 554, 1148; Colo. at 579 People P.2d at v. for ineffective assistance of counsel. See Doane, Cal.App.3d 852, 200 Cal.Rptr. 246 177, Wiggins, 168, McKaskle v. 465 U.S. 104 366, (1988). 372 Advisory may assist 944, (1984); S.Ct. 79 122 L.Ed.2d Faretta v. pro a se only defendant if and when the California, 806, 835, 2525, 422 U.S. 95 S.Ct. requests Lucero, defendant such assistance. (1975), Romero, 45 L.Ed.2d People 562 v. 341, 200 Colo.at 615P.2d at 664. 1256, (Colo.1985); 694 P.2d People 1265 v. In general, a knowingly defendant who and Lucero, 335, 341, 660, 200 Colo. 615 P.2d 663 voluntarily right waives his to counsel and (1980). Both the United States and Colorado chooses to se cannot later claim guarantee Constitutions right to effective Romero, ineffective assistance of counsel. assistance of counsel. U.S. Const. amends. 1265; Lucero, 341, 694 P.2d at 200 at Colo. VI, XIV; II, 16; § Colo. Const. art. Arm Bloom, 615 P.2d at 663. People See v. 48 strong 17, People, v. 701 P.2d 19 1194, 669, Cal.Rptr. 698, Cal.3d 259 As discussed in California, Faretta v. (1989); Doane, 369; 717 Cal.Rptr. 246 at express guarantee right to counsel State, (Tex. Rodriguez 893, v. 763 S.W.2d 896 implicitly embodies a correlative to self- Ct.App.1988). Lucero, representation. 821, this court a denied defendant's claim 2525; Romero, for 1263-64; Lucero, 694 P.2d at 340, 200 Colo. at 615 ineffectiveness of P.2d at 663. Further counsel where the more, the Colorado expressly request Constitution defendant failed to the aid of adviso guarantees a criminal defendant "the ry 341, 200 Colo. at 615 P.2d at appear person and defend in by and counsel." 663-64. precise granted 4. The issue on which proceeding pro certio- prepared who the briefs on rari is: signature, for Petitioner's fail in his attorney appointed obligation Did the as render effective assistance and at the same time retained Petitioner counsel to Petitioner. 1204 cireum- under some permit have jurisdictions However, other may assume advisory counsel stances bring an ineffec defendant criminal ted a representation, in a defendant's role broader against advi claim

tive assistance pro to a se response either in which cireumstances under sory counsel through a defendant's help, or request for a broad assumed somehow participation types in certain acquiescence degree of control exercised role and er A.2d at 1356- Bettney, 529 by counsel. See This legal representation.5 appropriate his role advisory counsel exceeds 57. Once of different in a number arise situation degree of and exercises example, a defendant For contexts. representation, control then by counsel but represented initially be assis an ineffective may assert a defendant represen dissatisfied limited claim "within tance request tation, subsequently or assumed assigned Blackburn, scope of the duties 755 F.2d McQueen pro se. See 669, Bloom, Cal.Rptr. 774 Cir.1985); Kemp, by counsel." Hance 1174, 1177 373; (1988); Doane, Cal.Rptr. at 185-86 at P.2d 373 S.E.2d 258 Ga. States, A.2d The trial M.S. Ali v. United 763 S.W.2d Rodriguez, 185-86; Hance, (D.C.1990); S.E.2d request a defendant's grant may then 1357; Rodriguez, 763 A.2d at Hance, Bettney, 529 373 S.E.2d himself. See *5 of coun The ineffectiveness at 896. S.W.2d for ineffective on motion (hearing at 185-86 of adviso the role where must focus on analysis warranted counsel claim sel represen own the defendant's ry not per counsel's claim related ineffectiveness his control. strategies within trial tation or sought to act as defendant formance before Doane, Cal.Rptr. at 373. 246 at 896 co-counsel); 768 S.W.2d Rodriguez, point up to the (court record to consider underlying a de objectives be self-representation where defendant's may proceed pro se fendant's cireumstances, a defen these gan). Under excessively and by unsolicited undermined for ineffective may maintain dant advisory counsel. participation intrusive or omis any acts of counsel 178, McKaskle, S.Ct. 944. at 104 465 U.S. before occurred might have sions upon ad imposed limits are some Rodri pro se. proceed defendant elected in a participation unsolicited visory counsel's W.2dat 896. guez, 763 S. First, pro se defendant a case. organization control the allowed to must be might trial Alternatively, 174, Id. at se, own defense. and content proceed pro grant a defendant's par advisory counsel's 944. 104 S.Ct. appoint nevertheless but objection cannot ticipation over defendant's v. States United See assist the defendant. (9th Cir.1987); 1289, substantially interfere with 1293 counsel to Causey, F.2d allow 835 decisions, control (Me. tactical 1356, any significant 1356 Bettney, A.2d 529 State v. witnesses, speak instead 843, questioning of State, 846 So.2d 1987); 558 Estelle v. importance. any matter the defendant (Miss.1990). not elects If a defendant Second, advisory 178, 944. at advi Id. appointed of the assistance make use not, unrequested partic through merely counsel counsel, or if sory jury's perception destroy the ipation, defendant, ineffective claim for no advises Id. We con himself. 341, represents Lucero, defendant at 200 Colo. assistance arises. may not although a defendant F.2d at clude 663; Causey, 835 at see 615 P.2d claim for maintain a Estelle, at 847. 1293; 558 So.2d 271, Conn.App. 702 A.2d Oliphant, 47 v. See, Causey, State 835 F.2d 1289 v. e.g. States McQueen, United 1174; (1997)(after deciding se, Cir.1987); F.2d at 755 pro 1206 698; to effective 669, no constitutional defendant had Bloom, at Cal.Rptr. 774 P.2d 259 capacity); v. State in of counsel any Ali v. United 366; at M.S. Doane, 246 Cal.Rptr. Hance, 368, (D.C.1990); 407, 410 States, S.W.2d 380 Randall, 530 A.2d 581 (Mo.Ct.App.1975)(defendant's refusal 529 A.2d v. 184; State Bettney, S.E.2d 373 any precludes claim of ineffective (Me.1987); 843 State, 558 So.2d Estelle 1356 counsel). 893; (Miss.1990); Rodriguez, 763 S.W.2d cf.

1205 against advisory acting counsel with- but that the attorney in parameters, advisory these counsel who everything. would handle Accordingto Dow- exceeds ney's testimony, these limitations and assumes a role it was advisory appellate associated with traditional counsel Downey, then who chose not to re- quest an evidentiary subject hearing on the Crim. P. to a claim for ineffective as- sistance motion for ineffective assistance of trial cross-examination, To the extent Downey admitted that he did not want participates beyond his limited role a de trial court to hear post-convie- the motion for representation, fendant's performance relief, tion counsel must meet the standards enumerated In contrast to account of Washington, 668, Strickland v. 466 U.S. 687, situation, Downey's 2052, (1984). advisory appellate S.Ct. 80 L.Ed.2d 674 coun- sel testified Ali, that he 380; received an M.S. unsolicited Bettney, A.2d at 529 A.2d call Downey,prior trial, to his which prevail at 1357. In order to on a claim for Downey expressed concerns about the ineffective and asked the represent defendant must him. first demonstrate that identi The attorney told Downey that he was fied acts or omissions of his in taking interested the case. Following were outside the range wide of professionally conviction, Downey competent contacted this in light of all the cir again. Downey's cumstances, Strickland, testified that telephone People S.Ct. conversa- Naranjo, 840 P.2d tion, Downey (Colo.1992); communicated Cole, dissatisfaction his trial representation (Colo.1989), including the fact that coun expressed a desire to sel was himself. acting in an capacity. M.S. *6 Ali, agreed Second, Downey in A.2d at 380. the defendant a traditional advisory capacity in return must for a demonstrate that he prejudiced by was $3,000 Downey's retainer. advisory appel- advisory his counsel's ineffectiveness. Strickland, late counsel further agreed U.S. testified that he September to attend the Naranjo, 324; Cole, hearing 840 P.2d at 775 P.2d at Downey's on motion to se after Downey expressed concern that even the TIL. presence advisory counsel would under- mine authority. Downey's his advisory ap- Having law, discussed the relevant pellate counsel also stated that he became apply we now it to the facts of this case. The Downey's concerned about appeal agreed trial court considered the actual role of Dow- appellate to write the only briefs after Dow- ney's advisory appellate April counsel at the ney drafted an fifty-eight-page unclear brief on his Crim.P. raising thirty-eight respect issues. With post-conviction parties pre relief. The issue, this testified that he had very sented different accounts of initially attempted explain that the court appellate in Downey's counsel's role appeal. might disregard brief, Downey's and thus Downey testified initially ap that he was suggested that he draft the briefs for Dow- proached by advisory appellate prior ney. he Downey also testified that trial, to his own to be a witness at the trial of power had veto over the issues raised in the Downey co-defendant. also testified that appeal and that he negotiate had to with he and his advisory appellate counsel had Downey appeal. limit the issues on raised discussed his trial expressed and he had his Advisory appellate counsel testified that one dissatisfaction with his trial on a Downey the issues raising insisted on number of occasions. claimed that was the ineffective assistance of advisory appellate counsel stated that he trial counsel claim. would Downey's appellate counsel la ter in proceedings. Downey During claimed his testimony, Downey's advisory that his advisory appellate counsel him appellate told expressed concern about IV. of ineffective claim

raising a and claimed direct factual accept the trial we public defender consulted he had that counsel acted advisory appellate that findings public de- The same matter. regarding case does not solely as informed Dow- had that testified fender in which involve a situation such appellate counsel ney's agree we limited role. exceeded post- dealt with generally are matters Downey's properly denied trial court after or on remand conviction appellate ineffective assistance claim of advisory appellate counsel Downey's affirm the inef- Downey insisted testified appeals. of the court claim be trial counsel fective in a motion than appeal rather raised specially concurs. Justice COATS Justice through a limited relief participate. does KOURLIS Finally, Downey's court. to the trial remand COATS, concurring: about specially counsel testified advisory appellate Justice his role as perception of court that the defendant's agree with the I briefs, supposed stating, "I was drafting the solely as acted appellate counsel [Downey] persuasive brief the most to write the defen- and therefore sign." Significantly, willing to actually was for ineffec- could not maintain dant by his ad- drafted the briefs Downey signed Maj. op. at 1206. of counsel. tive appellate counsel. visory although it make clear that briefly to I write distinguish this case helpful to may be testimony of Dow- hearing the After of ineffective treatments the broadest even counsel, and several appellate ney, advisory I jurisdictions, do not by other accepted Dow- witness, other that a opining the court to be understand explanation ney's claim of constitutional ap surrounding of the situation anyone other against would lie only as he acted peal, expressly found actually serving as the who is someone Downey's mo counsel, and denied jurisdiction or that tion for ineffective hybrid representation any form of recognizes findings of fact are A trial court's attorney act and an the defendant in which *7 reviewing court by a to deference entitled I understand do co-counsel. Nor unsupport unless not overturned and will inter- that excessive suggesting court to be King, People v. on by the record ed could de- which ference right prive a defendant claim for ineffective might support demonstrates trial court record The jurisdiction. counsel in this advisory appellate coun- Downey's although face, assis- briefs, claim for ineffective its On actually wrote the sel only to a defen- issues apply which can to select of counsel worked tance what and under counsel. Whether dant's Moreover, the ree- include in the briefs. a de- could become someone cireumstances ultimate Downey made the indicates that ord respon- and have both fendant's to raise the ineffective decision po- authority to that attendant sibilities and appeal rather trial counsel claim sition, appearance entering an without proceedings. as such are by the court being appointed finding that defer to the trial I difficult, that would fact-specific questions acted advisory appellate clearly attempt in a case to answer these cir- Under solely as this court implicate them. Where cumstances, Downey could not maintain findings of the trial the factual agrees claim for ineffective advisory role of strictly court establish advisory appellate counsel. against his apply the Strickland unnecessary it is situations any speculation about I consider

analysis this case. to the facts of an advisory which at trial or on appeal, might become counsel to be unneces-

sary holding. to our Colorado, PEOPLE of the State of

Plaintiff-Appellant, Kathy

Richard KAZMIERSKI

Knafla, Defendants-Appellees.

No. 00SA395.

Supreme Court of

En Banc.

June