*1 reasons, respectful- For all of the above
ly dissent. JJ., SCOTT, join
KIRSHBAUM
this dissent. Petitioner, MURPHY,
Patrick S. Defender, Vela, F. State Public David The PEOPLE State Furman, De- Deputy David M. State Public Colorado, Respondent. fender, Denver, petitioner. No. 92SC426. Norton, Gen., Atty. Raymond T. Gale A. Colorado, Supreme Court Gen., Deputy Atty. Timo- Slaughter, Chief En Banc. Gen., thy Tymkovich, A. William M. Sol. Gen., Denver, Bonner, for re- Atty. Asst. 15, 1993. Nov. spondent. Rehearing Denied Dec. Opinion of delivered the Justice SCOTT the Court. People, No. 91CA0616 30, 1992) (not April selected
(Colo.App. panel of the publication), a divided official affirmed the order of Patrick S. denying defendant trial court postconviction relief. Murphy’s motion for certiorari granted Murphy’s petition for whether a defendant in order to decide a trial conflict-free counsel when entitled to of counsel to court orders hold that a de- the defendant. We assist and return this is. We reverse fendant remand to case to the court for further Patrick petitioner In November of County charged in El Paso Murphy S. second- three counts of District Court with of theft of degree burglary,1 two counts $10,000,2 thing between $300 valued thing valued over theft of a one count of l(2)(b), C.R.S. 8B § 18-4-40 8B *2 302 motion, Murphy asserted
$10,000,3 by receiv- cases.6 In his and two counts of theft and thing valued at between denied effective assis- $300 that he had been later, $10,000.4 the at- month proceed- One throughout tance of counsel proceed- criminal torney initiated a second substance, ings. Murphy claimed that in which he was ing against Murphy attorney failed to him with suf- second-degree charged with one count of ficient information burglary count of theft of an ob- and one burglary of either the elements of ject and valued between $50 $300. rights under failed to or of his Crim.P. case, attorney investigate the facts of the failed to January trial, prepare challenge an amended information in each of the for failed to filed matters to include pending sentencing, two criminal file excessive and failed to for indicating criminal three habitual counts5 al- postconviction Murphy further previously been convicted that leged “pressed” by his attor- that felonies. of three additional ney guilt, when in fact he to enter a proceed to trial. Also within his wanted to 1990, Murphy agreed In March of vacate, Murphy requested motion to plead guilty second-degree to one count of appoint that district court from pending burglary in each of the two cases outside of the Public Defender’s Colorado aggravated and to receive concurrent sen- him in twenty years each Office to assist his action.7 tences of sixteen to Murphy’s plea, exchange count. In 21, 1991, February the district court On prosecution agreed remaining to dismiss all issued an order de- cases, including counts both all habitual Defendant,” pur- fender “to assist the and 21, 1990, charges. May criminal On portedly denying Murphy’s re- motion for district court sentenced to serve pursuant wrong consideration sub- sixteen-year two concurrent terms. 35(b).8 rule, section of the The full Throughout proceedings, Murphy as text of the court’s order reads follows: represented by a staff the El County Paso Office Public Defender. upon forward motion This matter comes of the defendant February pro filed a prepara- counsel to review and assist se Crim.P. motion and memorandum tion of for relief from sentence. points requesting and a motion authorities the trial court vacate his conviction in both The Court has denied a motion for recon- 18-4-40l(2)(c), (1986). statutory §3. 8B C.R.S. flict of interest. The duties ... properly discharged by could not be the Pub- 18-4-410(4), they appointed they lic Defender if were § 8B would have to evaluate the claims of the de- fendant, placed and would further be 8A C.R.S. they argue position where would have to 35(c), every person litigate against a member of their own firm in 6. Pursuant to Crim.P. con- properly represent victed of a crime is entitled as a matter of the defendant. order postconviction application to make review Thus ... the court should must vacate, aside, requesting that the court set private represent counsel to the defendant in one correct movant’s sentence based on litigation in this the course of this court. grounds several delimited in the rule. Unless and the files and record of the case 35(b) part provides in 8.Crim.P. relevant show to the satisfaction of the court that the may reduce a defendant’s sentence on relief, prisoner is not entitled to the court shall pro its own initiative or on defendant’s motion grant prompt hearing thereon take what- days vided that the is filed within necessary disposition ever evidence is for the case, imposed. after the sentence is In this 35(c)(3). question there is no that even had motion, 35(b) wished to file a such motion Specifically, Murphy’s request to the court untimely would have been barred as since he states as follows: May was sentenced on and his motion matter, generally position requires was filed in of 1991. See then in this (Colo.1993); P.2d Mamula counsel from outside ... the Colorado Public (Colo. 1988). appointed, Fuqua, Defender’s Office be due to a con- pursuant a motion factu- to C.R.C.P. where contains insufficient
sideration there open allegations, requirement al no motion is for consideration. to as- Defender is The Public Thus, Murphy had no defendant. because the Defendant. sist right to the error, *3 Murphy wrote Noting the court’s that court concluded the issue of whether personal explaining that letter court appointed attorney his was conflict-free relief postconviction his motion was one for irrelevant to of the Crim.P. was resolution 35(c) asking that under Crim.P. regard to Similarly, motion. with ap- reconsider his motion under the court entitled to Murphy’s contention that he was propriate provision of the rule. evidentiary hearing present his mo- court On March the district tion, appeals the court of held that Mur- denying a written order issued phy’s provide motion failed to sufficient three-paragraph motion. The summary supporting to avoid averments part as follows: order states relevant that Specifically, denial. the court found While the Defendant numerous list[s] material Murphy “did not indicate what citations[,] allege his fails to by have facts would been discovered [addi- allegations support any factual investigation preparation trial tional] instance, thoroughly For motion. [Murphy] by the prejudiced how had been reading the informa- advised both of Finally, on Mur- alleged failure.” based explanation of the tion and a less formal phy’s failure to the court of crime to nature and elements of the peals transcript entered. which was hearing, the court refused to overturn only acknowledged his un- defendant not Murphy was finding court’s that district derstanding, affirmatively but stated thoroughly nature and ele- advised of the questions. no Murphy plead- the crime ments of to which dissent, argued Tursi guilty. Judge In appeal, Murphy argued, he does ed of interest when, appearance that the of a conflict now, on that the district court erred here, compounded by especially when it the same present failure of the defender principal subject was the review, re- adequate appellate record for assis- Murphy’s Crim.P. ineffective for the the case remanded quired that “in him tance of counsel motion to assist as- counsel to appointment of conflict-free preparation of a for relief from refiling presentation Murphy in the sist effect, explained, In sentence.” his motion. required the district court’s claim litigate the Public Defender the fol- to review granted We certiorari himself, incurable con- against causing an lowing issue: Additionally, Murphy ar- flict of interest. erred in appeals Whether gued put that his motion forth sufficient affirming the court’s allegations factual such that petitioner in assist the trial request for granting in not his court erred who was proceeding, the Crim.P. evidentiary hearing. as- petitioner’s ineffective subject of claim, and of subse- of counsel sistance panel appeals A divided the court petitioner on denying quently affirmed the order of the 35(e) ruling on holding that district court’s motion rendered the merits the court of and remand to now reverse to con- of defendant’s question that it remand the appeals with directions purpose flict-free moot. to the district court matter (Colo.App. April No. 91CA0616 appointing conflict-free 30, 1992) (not publica- official selected for II tion). reaching this conclusion of con- determining question that the 167 Colo. cited Kostal moot, the court of was (1968), flict-free counsel proposition for the P.2d 536 was not en- missible conflict of interest.10 See McCall reasoned titled to the Court, assistance v. District since the trial determined (Colo.1989) (“A local faced supported that Murphy’s claims were not prospect arguing his or her with own trigger sufficient factual protect a incompetence to client’s interests assistance, i.e., statutory right to such appeal clearly a conflict of has interest since Murphy had no to counsel 11); accord Ri requiring disqualification.” place, first it was immaterial that the coun- Court, ley District Colo. appointed may sel who had an have (1973) (ruling P.2d 464 that where a defen Additionally, incurable conflict of interest. alleged guilty plea dant his was caused the court of held that attorneys’ assistance, ineffective those in determining was correct that Mur- *4 attorneys same could not the de phy's motion was insufficient to in proceeding fendant the Crim.P. al require evidentiary hearing. assistance). leging ineffective only Not unnecessary We it find to address does such conflict harm the interests of adequacy Murphy’s the of motion. Wheth client, the who is entitled the assistance 35(c) er or motion was suffi advocate,12 see Cruz v. of a zealous ciently specific trigger right the to coun 479, 213, 157 Colo. 405 P.2d sel, disputed it cannot be district the (describing required the duties of action, by ap its own the ordered motion), in a counsel Crim.P. 35 but the pointment same attorney of the that had integrity judicial process of the entire represented the bel question. into See drawn Canon 9 the of By ow.9 making appointment, such an the of Responsibility (“[a] Code Professional district court created a ap situation where pointed lawyer appearance should the avoid even of litigate counsel was forced to against himself, clearly McCall, imper- 13); causing professional impropriety.” suggest 9. We do not applied concept intend that defendants imputed 11. In McCall we of the right 35(c) have a counsel disqualification to assist with to hold that the district court review, purposes motions. But for of our since by denying request abused its the discretion question propriety the state does not the of the appellate public the division of the defender to 21, appointing court’s defendant, 1991 order representing withdraw counsel, we assume that the has claim of whose ineffective assistance of counsel authority 35(c) appoint counsel in Crim.P. deputy public was based on the actions of the authority implied This has been defender case, Grand Junction. In the instant statutory 1—103(1) language from the petitioner represented by ap- 21— and § 8B Section 21- pellate public division of the defender in both public repre 1-103 states that the defender shall appeals before this court. indigent persons charged sent under arrest or However, unlike the situation faced felony requests if the defendant it or the McCall, public appellate public defender in court so Section orders. 21-1-104 defines the arguing here defender petitioner’s is not the merits of the public duties of the "prosecut[ion] defender to include the provided claim that his trial counsel any appeals or reme [of] other reason, representation. ineffective For that dies before or after conviction considers that he public because neither the defender nor the justice." to be in the interest of See Brinklow v. petitioner sought appointment have of different Riveland, (Colo. 1989); People 773 P.2d appeals counsel before this Duran, (Colo.App.1988); 757 P.2d court, we ap- find no error in court’s People Naranjo, (Colo.App. 738 P.2d pointment appellate public of the division of the 1987). represent petitioner appeal. defender course, recognize, litigant may that a 12. The record is silent as to whether right be allowed to waive to conflict-free provided any Murphy. counsel assistance to It representation upon full disclosure clear, however, any Castro, that counsel did not file (Colo. See 657 P.2d 945-46 supplemental Murphy's motions 1983). us, to elaborate on There is no contention before howev pro postconviction er, se motion for waived his to conflict-free representation, any argu and in case such unpersuasive ment Murphy's would be because we 13. While hold that trial court erred explicitly requests ap Crim.P. pointment the same who was the sub- motion, ject Murphy’s of counsel from seriously outside of the office we also defender. question the conduct of defense counsel. dissenting: (even where counsel are from Justice VOLLACK P.2d at 1228 offices, “the con- public defender different majority holds that the defendant is attorney’s in the loyalties flict of inherent to conflict-free and there- entitled quality of his or her role would make the fore reverses and returns the case fairness and to the trial and thus the for remand representation, to vacate its order court with instructions appellate process, neces- impartiality of the denying Murphy’s motion and to Thus, public eye”). sarily suspect in the point conflict-free counsel to assist the de- to the inherent conflict of interest due filing presentation fendant in the appearance impropriety, we well as the appoint- that the district court erred hold majority My disagreement with the does represented who agree principle. at the level of rest Murphy in the trial below to assist that a defendant’s to conflict-free Murphy’s postconviction litigation protected. prudently counsel should be ceedings. believes under the facts of judgment Because we have reversed remanding this case that to the trial court of the court of and remanded conflict-free counsel is neces- sary. disagree. matter to the trial court *5 presenta- in the counsel to assist view, my rights substantive 35(c) motion, necessary tion of his it is not adversely affected so that were us determine whether defendant was to oversight failing appoint to trial court’s evidentiary hearing pres- entitled to an conflict-free counsel to assist requiring the trial harmless error. ent his motion. denying Murphy’s court to vacate its order 35(c) motion, majority opinion does not Ill that the trial address what facts establish evaluating judge abused his discretion Accordingly, judgment of the court post-conviction relief mo- the merits of the appeals and this case is re- is reversed tion. turned to the court of with di- I dissent from the because rections to remand district believe that the court court with instructions to vacate its order ruling on the reasoned that the trial court’s denying Murphy’s and to rendered the merits point Mur- conflict-free counsel assist to conflict- question of defendant’s pre- phy, appropriate, refiling if and though representation moot. Even free Rule sentation of his conflict- failed Murphy at his represent free counsel to VOLLACK, ROVIRA, J., dissents, 35(c)motion, the trial court’s denial of Mur- C.J., post-conviction relief phy’s motion for joins the dissent. reasonably may affected particular will be or be we are concerned with the failure of client financial, business, property, person- or counsel to file a motion to withdraw his own ("A interests”); 5-101(B) lawyer shall not al DR from the case and counsel’s decision to not file pend- accept employment contemplated any supplemental designate in a or motions an ade- or litigation may he or it is obvious that he quate if knows record. While conflict otherwise lawyer ought debilitating, be called as a or a in his firm be when defense counsel cannot witness...."); Rules of Pro- see also Colorado serve as an advocate for his or her client then 1.16, (1992 preferred Conduct 1.7 and 7A C.R.S. withdrawal over silence inac- fessional , (a (effective 1993) 2-110(B), (a lawyer (1990) Supp.) January DR 7A tion. See lawyer representation employment, a client if the withdraw from “shall not "shall if ... may materially limited it is of that client knows or obvious his continued [h]e ...,’’ lawyer lawyer’s employment will result in ... own interests violation of.a Disci- Rule”); 5-101(A) ("Except of a plinary DR shall withdraw from with the disclosure, representation will in viola- client if the result consent of his client after full a law- professional yer accept employment the rules of conduct shall not if the tion of exercise law). professional judgment on behalf other of his of his relief, holding post-conviction Murphy alleged not an without was denied of discretion. he had been effective assistance abuse throughout guilty plea that he had entered his involun- I. tarily. support his claim To for ineffective following The review of the record is counsel, Murphy assistance claimed necessary to issue. understand the following public defender made the al- Petitioner, (Murphy), Patrick S. leged errors: charged in an with three information (1) public The defender did not ade- second-degree burglary,1 three counts quately him advise theft,2 theft counts and two counts of burgla- either hearing of the elements of receiving.3 later, in One month a second ry rights under proceeding, Murphy criminal was addition- (2) public pre- The was not charged ally with one count of second-de- pared trial. burglary gree and one theft. The count of amended in- also filed an (3) public The defender failed to inves- pending in each crimi- formation of the two tigate the facts of the case. charging him habitual nal cases with three (4) defender failed to chal- criminal counts. lenge the excessive sentence. Thereafter, pursuant agreement to a defender failed file whereby prosecution agreed to dismiss cases, remaining all the counts in in- both cluding charges, alleged the habitual criminal further trial, agreed plead guilty defendant to one ceeded he would found have been but, instead, second-degree burglary count of in each “pressed” *6 aggravated attorney plea guilty. case and receive concurrent his to enter a of twenty years of Murphy requested sentences sixteen to on of appointment also the plea each count.4 In the accordance with counsel other than the defender’s agreement, sentenced office with his In to assist motion. May Murphy request on serve two his of support for sixteen-year concurrent terms. defen- filed an which affidavit potential mandatory stated, avoided a part: dant sen- in relevant imprisonment of life tence the ben- without require Affiant will the assistance parole, probation, suspension efit of matter, private this ... as Throughout sentence.5 proceedings, the there is a conflict of interest between represented by an the office affiant and of the Colorado the El County Paso Office Defenders Office. The na- State Public Public Defender. ture of this conflict surrounds the fact February pro On filed a that the Public Defender will be ... [a] hearing in se Crim.P. motion and memorandum material witness points they requesting authorities this ... matter ... were involved plea guilty entry guilty plea to vacate his [by] [the] they in each case. motion sentence his for affiant and were the (1986). twenty years accept- 1. 8B C.R.S. § from sixteen if the court plea. ed his 18-4-40l(2)(b), (c), 8B C.R.S. § time, thirty-two present 5.At 18-4-410(4), 8B C.R.S. years If he were convicted old. on the habitual appeal record counts, 4. on does not include a tran- parole eligibility only after would attach orders, hearing. script of this The minute in- forty years. he minimum of served a calendar that, record, cluded within the at the hear- show 16-13-101(2.5), (1986 See § 8B C.R.S. & 1993 ing, present the defendant was with counsel and Supp.). plea guilty advised on was degree to second burglary, felony, a class 4 a sentence order states in relevant are collat- tion. The issued in those matters which record part as follows: erally attacked. the Defendant numerous While list[s] February On citations[,] allege motion fails to his denying Murphy’s motion issued an order support any factual pursuant of sentence
for reconsideration instance, thoroughly For motion. 35(b).6 The trial court miscon- Crim.P. reading by both informa- advised 35(b) Murphy’s motion as a Crim.P. strued explanation of the tion and a less formal public de- the same the crime to nature and elements of throughout him represented who fender was entered. The which a him in future to assist acknowledged un- only his defendant The trial court issued affirmatively derstanding, but stated following order: questions. had no upon mo- matter comes forward This appeal, Murphy raised the same con- appointment of tion of the defendant for concerning his to conflict- tentions prepara- and assist in counsel to review now. free which he raises a motion for relief from sentence. tion of court erred Murphy argued that recon- The court has denied a motion for 35(b) pursuant sideration to C.R.C.P. [sic] public defender to assist him in his motion open for consider- and that motion post-conviction relief who was also the ation. subject Murphy’s Crim.P. ineffec- appointed to The Public Defender is tive assistance of counsel assist the Defendant. the trial court’s asserted that 7,' 1991, defendant, in a On March litigating defender’s resulted letter, the trial court that personal notified himself, causing thus against the claim misinterpreted his Rule it had interest. incurable conflict of post-conviction relief as appeals, unpub- in a 2-1 The court of 35(b) Rule motion for reconsidera- decision, affirmed the trial court’s lished letter, Murphy noted tion. 35(c) mo- denying Murphy’s Crim.P. order if he wanted to file a mo- even The court tion tion, it would have been time-barred since ruling on the held that the trial court’s day It past “1. It was the 120 limit. Murphy’s motion rendered the merits of *7 I am purpose would serve no on which right to conflict- question of defendant’s recognize. 3. trying get to the court to representation moot. v. Mur- free un- Being that the was entered 30, (Colo.App. Apr. phy, No. 91CA0616 (AGAINST plea bargain MY der a determination, 1992). the court of In its WISHES).” Murphy requested that People, 167 appeals relied on Kostal his motion under the court reconsider (1968), 317, held which 536 Colo. propriate provision of the rule but failed to that, insufficient factu- if a motion contains court’s object to the trial requirement no that allegations, al there is any point at in his represent the appointed to be letter. appeals, there- defendant. The court fore, right Murphy’s to con- concluded that March the same trial immaterial representation was accepted plea bargain, sen- flict-free who had that pro- court decided presided over the since the trial tenced supported by suf- Murphy’s motion was vidency hearing denied the Crim.P. allegations to warrant his holding evidentiary ficient factual motion without appointed coun- Murphy’s right failure to to the assistance hearing, based on the mo- sel. vide a sufficient factual basis for days after the sentence is im- reduce a filed within 120
6. Crim.P.
allows
to
posed.
defendant’s sentence on its own initiative or on
motion, provided that the motion is
defendant’s
(1987),
unper-
stated, however,
The court of
also found
has
L.Ed.2d 539
Murphy’s
obligation
no
provide [post-
suasive
contention that
“States have
to
relief,
ruling
do,
court erred
on his motion without
... and
they
when
conviction]
holding
hearing.
an evidentiary
by
first
the fundamental fairness
mandated
appeals, agreeing
with the trial
Clause does
that
require
Due Process
Thus,
supply lawyer
concluded
a
that
the State
as well.”
factually
require
right
insufficient to
eviden-
at
no sixth amendment
to counsel
tiary hearing
indigents seeking
post-con
since he “did not indicate
taches for
state
555-58,
material facts
been
Finley,
what
would have
dis- viction relief.
at
U.S.
investigation
covered
or
phy representa- is entitled conflict-free II. adopts tion construction which creates result inconsistent with common I dissent because I since, effect, precedent, sense and Mur- appeals correctly believe the court of phy repre- to court-appointed is not entitled that, allega- reasoned where a defendant’s sentation. tions are require insufficient to 35(c) motion, on a a defendant’s appointing counsel, concede conflict-free is ren- in failing trial court erred con- moot dered since the is not error, defendant enti- flict-free find such how- ever, tled assistance of harmless because substan- place. in the first I further conclude that rights adversely tive were not affected *8 judge the trial did not his abuse discretion since wholly his claims were unfounded. denying Murphy's in Any Crim.P. error in an a attorney with interest, therefore, conflict of was rendered Criminal guaranteed defendants are a moot. appointed counsel under both the States and United Colorado Constitutions. filed a motion to set aside 515, 519, v. People, Martinez 173 plea guilty Colo. 480 his inadequate based on as- 843, P.2d 845 As the United States insufficiency sistance of counsel and his Supreme in Pennsylvania Finley, Court v. Crim.P. Rule 11 advisement. 551, 1990, 557, 1994, 481 U.S. 107 S.Ct. 95 makes a blanket statement that counsel and, 35(f) ing; major- 7. This denied requires certiorari review on the C.A.R. whether a following ity issues: judges appeals, Whether the state federal at the court of a and not single panel, publication constitutions entitle defendants to conflict-free to consider each proceed- prior counsel in a Crim.P. case decision.
309
35(c)(3)
provide any
was ineffective but fails to
enables a trial court to
deny
post-convic-
a defendant’s
allegations
satisfy
factual
that would
motion for
tion relief
holding
without
a
ineffective assistance of counsel claim. He
the motion and the record of the
“files,
“[w]here
merely states that
records and
show,
case
to the satisfaction of the
“[ojral
minutes” of the cases and the
testi-
is not entitled to re-
[defendant]
witness,
mony
expert
from an
who will
Velarde,
lief.” People v.
374,
200 Colo.
appointed by
have to be
the court” contain
376,
104,
(1980); People
v.
616 P.2d
105
support
allegations.
the facts that
his
Hutton,
392,
183 Colo.
517 P.2d
record, nevertheless, supports
finding
judge
The trial
made his find-
any
of the trial court that his motion lacked
ings of fact
granting
without
the defendant
factual
support
his motion.
evidentiary hearing.
denying
relief
35(c),
It is
under
principle
appel
a well established
relied
upon
acceptance
plea
own
reviewing]
late review that
bar-
“[the
gain
and the
advisement
presume
must
the trial court’s find
which the
plea
defendant entered a
ings
supported by
and conclusions are
guilty.
appellant
evidence where the
has failed to
provide
Peo
complete
appeal.”
a
record on
circumstances,
say
Under these
I cannot
ple Morgan,
237, 242-43,
199 Colo.
606 that the trial
denying
court erred in
defen-
(1980);
Kailey v. Colorado
dant’s Crim.P. 35 motion.
I believe that
n
Corrections,
Dep’t
State
807 P.2d
the issue of conflict-free counsel
is ren-
(Colo.1991) (quoting
People,
Lamb v.
dered moot
virtue
of the district court’s
denial of the
(1971))
motion. Since
Colo.
484 P.2d
the trial court
determined
(“In
a
proceeding,
Crim.P. 35
the [trial]
insufficient,
motion was
court is the trier of fact....
where
[and]
error,
therefore,
I find no
in the court of
presented
sup
the evidence
to the court
appeals’ reasoning
Murphy’s right
ports
findings
judgment
‘the
...
conflict-free
rendered
judgment of the trial court will not be
moot since the defendant
not entitled
was
”).
disturbed on review.’
Since the tran
to the assistance
script of the providency hearing was not
place.
the first
included
the record certified to this court
deny
post-
A trial
(Murphy
failed
court’s decision to
transcript
conviction motion will not be disturbed on
appeals),
pre
this court must
appeal
showing
absent a
that the trial court
properly
sume that
advised
abused its discretion. Miller
the trial court under Crim.P. 118 of the
(1972). An
Colo.
remains even is now assistance,
vided with conflict-free further unlikely produce
review is a different allegations Murphy’s
result since the 35(c) motion still remain Mary MOSES, Mary E. Elaine n/k/a insufficient. Tenantry, Plaintiff-Appellee and Cross-Appellant, majority opinion I am troubled since, here, under the circumstances judge properly disposed trial of the Crim.P. COLORADO, DIOCESE OF Colo- appointed attorney motion before the corporation, Bishop rado William opportunity even an to assist Frey, Defendants-Appellants post-conviction in his proceedings. It is not Cross-Appellees. therefore, apparent, public that the defend- No. 92SA415. er labored under an actual conflict of inter- Colorado, public Supreme est since the Court of defender did not active- En ly represent Murphy Banc. twenty-one 21, 1991, day period Nov. date of the original deny- trial court’s order Rehearing Denied Dec. 35(b)motion, to March date trial court denied emphasize my
motion. I cen- decision that,
ters on the fact although the trial letter, object clarify failure to to the trial court's In his made sure to brought of the he had motion. defender further rein- certainly dealing defendant’s letter demonstrates "comedy forces that we are that he was aware of the law. never- errors." theless, objections raised no to the trial court's response judge’s to the trial order on Feb- though defender even ruary wrote to the trial already at this time he aware this notifying pursuant the court that its order was pointment. It is in his Crim.P. ironic rule, wrong to the subsection of the points motion and ities, and author- memorandum 35(b). Murphy requested the court to reconsid- Murphy specifically requested private appropriate provision Yet, er his motion under the after the issued its 35(b) of the rule. The defendant further noted the original tion, denying purported order mo- procedural purposely bringing any reasons for objection did not raise purported court's mistake.