*1 trial court's use of that the indicate the defen- dence for which purposes limited to the fundamentally un- syntax did not incorrect may considered. be conviction dant's sought we to enforce protections the Blehm, dermine modified the we at 798. in Curtis. ways. in a number procedures Curtis chal- First, that the defendant's required we proceed- post-conviction in a raised
lenges be III. CONCLUSION second, "off-the-record" we held that ing, and is not an incanta- Advisement The Curtis determining could be considered evidence tion; exchange. It is not inquiry it is Id. waiver. validity of the defendant's the assuring purpose of forma; it serves the any specificlist not establish 791. We did may testify if he knows he that the defendant post-convie- the considered factors to be chooses, consequences of exer- the and what court, Advisement the Curtis other than tion view, Today, my will cising that choice be. above, and, themselves; noted elements majority form over substance elevates the decision to despite our that made clear we upon substitu- based reversing a conviction elements, "have not re- we those reinforce which word in an advisement tion of one precise the to invoke the trial court quired this defendant clearly did advise (noting Id. at used Curtis." language require cases do not Because our choice. only require we the fifth element that as to result, I would respectfully I dissent. "concept the maintain advisement the conviction affirm the defendant's impeach may used to the conviction and sentence. added). credibility") (emphasis to state that JUSTICE I am authorized reviewed Here, post-conviction join in this and JUSTICE COATS RICE itself, suggested, as I have which the record dissent. uphold the advisement. was sufficient present required to were not ade- record was if the evidence additional in which This is not a case
quate. the defendant neglected to advise the Curtis or more elements
omitted one
Advisement, inquiry would in which case proceed outside bounds
have PEOPLE Plaintiff: The In re: Here, the record original case. record of Colorado, of the State discrepancy indicates that as a whole thwart did not relating the fifth element underlying Because Curtis. purpose Bobby BAKER. L. Defendant: and "cred- "character" interplay between No. 04SA194. purposes, the ad- impeachment ibility" for "concept" that addressed
visement Colorado, Supreme Court to consider the jury be instructed would En Banc. as sub- conviction the defendant's evidence of 2005. guilt. Jan. stantive evidence moreover, court, com- post-conviction hearing in by holding a with Blekm plied evidence off-the-record it considered
which by trial advised had been the defendant litany given the exact and even post-convic- to the not known
defendant court, evidence was clear there
tion jury during present had been limiting which conference
instruction jury had been given the to be
instruction record and evi- Accordingly,
discussed. *2 Kaplan,
David S. Colorado State Public Lord, Defender A. Appéllate Kathleen Chief Deputy Denver, Public Defender for Peti- tioner. Suthers, General,
John W. Acting Attorney Bryan, General, John T. Attorney Assistant Denver, Respondent.
MULLARKEY, Chief Justice. original Baker, proceeding, Bobby petitioner, seeks a compel- writ of mandamus ling the court accept his direct appeal. We issued a rule to show cause and now make that rule absolute.
The court of abused its discretion when it dismissed as untime- ly. Errors the trial court and Baker's combined with prej- the lack of prosecution udice to allowing proceed, principles judicial econo- my inadequacy and the Crim. proceeding as substitute for a direct constitute cause to exeuse the late filed error and ask- informing him of the appeals, History and Procedural Facts I. on what well as advice lawyer ing for felony multiple of- was convicted perfect his take to any, he could steps; sentenced 2001 and December fenses to this letter response no There is Department years to life forty-eight record. *3 trial, represent- was Baker At Corrections. had retained. he whom by private ed 12, 2004, a new Baker filed On March 4, hearing on December sentencing At the appeals and a in court of appeal notice of Baker he 2001, court advised that of counsel appointment for motion not determine appeal, but did right to a had time, the district court. This district advise him indigent or if Baker Defender the Public the Office appointed of for of counsel direct right appointment appeal. Six weeks Baker's direct pursue Prior to the indigent. appeal he an order to later, issued appeals court of proceed a motion Baker had filed hearing, why the cause directing him show Baker ruled The court never pauperis. in for be dismissed should not of notice forma sentencing hear- During the motion. on that time- failure to file due to jurisdiction of lack was "interested" that he Baker indicated ing; appeared for public defender ly The notice. for appointed defender having public order to show to the responded and Baker it could that responded The court appeal. not be that should by arguing cause Baker appellate section for the a motion entertain ineffective assis- by the unfairly prejudiced represent Public Defender of the Colorado failed to counsel who of his trial tance no such because appeal, but in an Baker of Crim. violation his direct court, do it could before order, 44(e). the court of In a one sentence nothing at that time. appeal as untime- Baker's appeals dismissed peti- Baker then judge ly. dissented. One notice a handwritten prepared had Baker pursuant to C.A.R. for relief this court coun- his trial which he showed appeal, of tioned why the cause a rule to show 21. We agreed Baker had issued Although and sel. now make accepted and not be appeal should appeal, on represent not he would Baker that absolute. Bak- the rule submit type and offered to trial counsel courtesy." On appeal "as a of er's notice 2001, 10, filed trial counsel Analysis December II. County Dis- in the Jefferson notice of appeal of right to direct to the copy Office and Court trict delivered Weason is fundamental. conviction criminal Attorney, failed file but District of the 736, P.2d Appeals, 731 Court v. Colorado of isas appeals, court of notice of (Colo.1987); People, 169 Colo. v. Haines 737 4(b). Consequently, Bak- required C.A.R. (1969); § 16-12- 136, see also 595 454 P.2d perfected. appeal was not
er's
(2004) ("Every person convicted
101, C.R.S.
of
2003,
to the court
Baker wrote
In March
state
of this
the statutes
offense under
of an
status of
inquire about
proceed
review the
appeal to
of
has
replied that
clerk of the
appeal.
4(b)
conviction."). CAR.
resulting in
ings
sug-
filed
appeal had been
no notice of
filing
and
a notice
a timeline
establishes
Bak-
counsel.
his trial
Baker contact
gested
requires
and
in criminal cases
trial counsel
and his
this advice
er followed
days after
forty-five
within
be filed
notice
him
reminding
with a letter
responded
notice of
entry
judgment.
Unless
represent Baker
agreed to
he had
filed,
appeals lacks
the court
post-convic-
other
actions or
"any appellate
Estep v.
jurisdiction to hear
motion,"
wishing him luck with
and
(Colo.1988);
tion
see
People, 753
copy of
was a
to the letter
Attached
8(a).
also C.A.R.
typed for
appeal counsel
the notice
4(b)(1)
provides
However,
also
C.A.R.
it,
Reviewing
Baker discovered
him.
initial
that,
any time
or at
before
incorrectly
in the dis-
filed
been
notice had
thirty day exten
expires, an additional
time
discovery, Following this
trict court.
exeus-
upon a
granted
can be
court of
sion
of the
the clerk
wrote to
again
26(b)
Additionally,
neglect.
able
C.AR.
al Baker's trial counsel filed a Crim. P.
appellate
enlarge
lows the
court to
the time
April
appellate
motion on
2002. Because
filing
permit
or
an act to be done after
appointed
counsel had not
prior
been
to that
expiration
deadline
time, and trial counsel had not moved to
Allen,
395, 397,
shown.
182 Colo.
withdraw, Baker's trial counsel was counsel
(1973).
CAR.
also forty-five day peri-
record
the time the
suspend
allows the court of
filing
od
notice
under CAR.
requirements
provisions
4(b) expired. Plainly,
neglected
particular
rules in a
case "in the
duties to his
failing
client
to follow the
decision,
expediting
interest
or for other
proper procedures
filing
good cause
individually
shown." Taken
wrong
the notice in the
court.
collectively,
the Rules confer discretion on
*4
appeals
jurisdiction
the court of
to extend
neglect,
To establish excusable
the
appeals
over
forty-five day
filed outside the
cirenmstances must show that "there has
upon
time limit under certain cireumstances
been a
proper steps
failure to take
at the
a showing
neglect
good
of excusable
or
cause.
time,
proper
consequence
not in
of careless
ness, but as the result of some unavoidable
Although
appeals'
the court of
dis
hindrance or accident."
Group
Farmers Ins.
accepting
cretion in
ap
late-filed notices of
Court,
85, 89,
Dist.
181 Colo.
broad,
may
is
it
not be
in
exercised
a
(1973).
The
surrounding
circumstances
arbitrary,
manner
or
unreasonable
the failure of Baker's trial counsel to correct
Estep,
unfair.
the court of though Even counsel to be filed forty-five after the initial may mistakenly have believed that because day period good time for cause shown.1 The agreed represent he had not to Baker on determination good of whether cause exists appeal, responsibilities to his client ended naturally depends particular on the facts of at sentencing, merely and he was submitting Baker's courtesy," notice "as a each case and assessing Crim. should be made 44(e) totality P. the provides Estep, otherwise. cireumstances. In relevant 44(e) part, Crim. P. states that counsel's we concluded that neglect when counsel's to representation of a defendant inexcusable, terminates: file is the court can consider weigh heavily "whether other factors in favor
(III) After sentence to incarceration is of permitting filing." the late 758 P.2d at imposed upon conviction when no motion 1248. Three nonexclusive factors outlined in pursuant has been filed P. Crim. 1) Estep on; potential prejudice included: or such motion so filed is ruled (IV) 2) People may or When filing, suffer from is filed 3) the defendant. judicial economy, interests of pro- 26(b) provides 1. C.A.R. asking that "the enlargement motion for an of time to file good may upon enlarge appeal, cause shown correspondence we treat will Baker's prescribed by time these rules or its order subsequent filing with the court of act, doing any may permit act to be se notice of and motion to appoint expiration (empha- done after equivalent of such time." counsel as the of a motion to allow a added). Although sis did not file a formal late-filed notice of
$97 being defender public in a "interested pursue was requiring priety put should have actions These appointed." Id. remedies.2 other probably Baker was notice that court on oth- factors, as several Here, as well these unrepresented would be indigent and to be Baker's ers, requiring favor of Crim. future, protections making the 26(b). under C.A.R. good cause reinstated Rodriques v. Baker. See crucial can be timely appeal to file failure Baker's 331-32, States, 89 S.Ct. 395 U.S. United trial of both the failure attributed ("Counsel's (1969) at 1715, L.Ed.2d 340 duties perform trial court and the pro petitioner obtain leave tempt per- Despite defendants. criminal owed put the have pauperis should trial contrary, Baker's ceed beliefs sonal forma petitioner would be judge time on notice at the of record was counsel future."). filed and have been unrepresented appeal should notice to ensure obligated Estep pro- outlined considerations The do so failure to perfected. finding of support for a further vide of counsel. to ineffective amounts 26(b). prose- shown under C.A.R. 387, 105 S.Ct. Lucey, 469 U.S. Evitts v. from late complain prejudice cannot cution (1985) counsel's (Appellate L.Ed.2d attorney ac- received the district when appeal with a statement appeal his intent of Baker's notice tual inef- Appeals constituted Kentucky Court *5 See Widener in 2001. December conviction purposes of of counsel assistance fective 398, 400, Court, 615 P.2d 200 Colo. v. Dist. at amendment.); P.2d Estep, 753 the sixth (1980) failed to (Although defendant 33, 34 to counsel of trial Although the failure 1248. stay judgment to appeal, motion notiee of file to may amount not obligations his perform con- supersedeas bond approval and for aas be considered neglect, it can excusable serve as notice language to adequate tained finding good cause. of contributing to a factor not party could prevailing "If the of timely appeal were efforts Baker's appeal or as to as to the intention be misled failure to court's by the trial also frustrated appeal is to from which judgment to the Crim. duties. Under prescribed perform its of taken, in the notice any defect technical be at sen required 82(c), court was the trial P. harmless."). was prosecution The is appeal Baker was whether tencing to determine hearing where sentencing present at an indi him of and advise claiming indigeney a motion to received that it had court noted of counsel appointment right to gent's Baker's and pauperis in proceed to observe trial court's appeal.3 The forma that Baker court informed in counsel egregious particularly safeguards is these public de- by the represented wished to a motion had filed that Baker the fact light of to indicating intent fender, thereby Baker's pauperis proceed to forma Furthermore, trial Baker's when Baker to the court orally reported entry year after appeal cause, to be filed over of notice to show to the order the answer 2. In Boivin, P.2d 1038 People 632 judgment); v. of that Baker's of the fact People much out make (notice appeal almost filed (Colo.App.1981) of years after the appeal filed several was notice of late). deadline, years 4(b) circum- four contrast to other CAR. of the court ordered we have where stances Estep, 753 filings. accept See late 32(c) P. mandates: 3. Crim. days (notice appeal a few filed of at 1247 P.2d sentence, shall, passing inform after The (same) Weason, late); at 737 731 P.2d right of his to seek review his defendant of Estep factors People one of assert that time make at court shall conviction. appeal filed of is "the good cause is that notice indi- whether a determination Estep only defendant days does only Not a few late." so, inform the shall the court gent, and if has timing requirement, but state Colorado ap- of right to the was filed a motion mere fact indicated conviction, review of his counsel upon under be a bar years would not pointed several appeal on a record to obtain and of his right v. eg., See, Swainson circumstances. certain payment costs. without (Colo.1986) (Crim. P. 35 479 People, 712 P.24 case, Baker court informed present years In the two filed over sentence to reduce perform the other Allen, right appeal but did not deadline); 182 statutory inquiries and advisements. (1973) (allowing required 1061 Colo. §98 erroneously appeal filed the notice by addressed court on direct
only
court,
copy
appeal
district
of the notice
would never be reviewed at all.
was also hand-delivered to the district attor-
sum,
Baker has demonstrated sufficient
ney.
factors to
a finding
good
constitute
enlargement
period
the time
during
Additionally,
judicial
the interests of
econ
which
appeal
notice of
can be filed. As a
omy
by allowing
would be furthered
the di
consequence, we find that
court of
rect
proceed.
If the dismissal of
peals abused its
discretion
dismissing
upheld,
Baker's
his remaining
untimely.
recognize
We
remedy
bring
would be to
P.
Crim.
that remand to the district court for factual
motion.
would
have at
two
least
findings may
appropriate
be the
remedy in
grounds
First,
on which to base this motion.
Here, however,
some cases.
we believe the
allege
he could
improper
that his
firmly
record
establishes the failures of both
ly
due to
dismissed
ineffective assistance of
trial counsel
sentencing
and the
Evitts,
399-400,
counsel. See
469 U.S. at
perform
defendant,
duties owed to the
ren-
830; Estep
Second,
S.Ct.
at
1248.
dering
unnecessary.
remand
argue
Baker could
that he
wrongfully
deprived
right
appeal by
III. Conclusion
court's failure to determine whether he was
indigent
Although
trial
neglect
failure to advise him of an
counsel's
failing
indi
gent's
file
appointment
counsel for
was inexeusa-
ble,
82(c).
Baker was
under
able to make a
Rodriquez,
Crim.
See
331-32,
enlargement
cause for
(Supreme
pre-
U.S.
S.Ct. 1715
time
seribed
C.A.R.
Court
directed district court
a notice
resentence
appeal for a criminal conviction. According-
defendant in order
him perfect
to allow
ly, we make our rule
absolute. We
judge
where the
order the
erroneously
*6
appeals
court of
to accept Baker's notice
right
failed to advise him
of his
to appeal);
appeal
timely
Boivin,
(defendant's
proceed
and
appeal.
with the
undiscovered facts. Crim. P. As a to haunt the jurisdic- courts of this result, many tion, issues that could have been respectfully I dissent. by public defender representation finds that majority request would be that his was informed 26(b) necessarily es- and of C.A.R. purposes motion; and the filing a upon pre- considered would the defendant because tablished attorney by an represented relief defendant post-conviction on a vail concerning a any- Although information the time. assistance ineffective claiming repre- be defendant's file a his efforts because way, and requirement a appeal remains on court's sented by frustrated were longer is no information P. that P. Crim. according to Crim. him to advise failure appeal because an perfecting essential 82(c). ground, the former As to 44(e) trial counsel assigns to now any reading of Crim. rejected flatly past has his client's obligation to ensure 105 S.Ct. Lucey, 469 U.S. Evitts desires, so if the client perfected, (1985), would dictate L.Ed.2d 821 is terminated. representation without before counsel's ineffectiveness finding beyond a mere prejudice, showing of some sufficiently trial court or not the Whether Valdez, 789 People v. inability See rule, requirements of complied with (Colo.1990). regard With 406, 409-10 circumstances, it is clear these under majority revives ground, latter and, right to understood holding that split on relies reason, coun- on his trial relied for whatever years, twenty-five lain dormant has rather se sel to file least was at of which rationale underlying public representation moving for than been has since time and at the questionable an perfect efforts to His defender. reallocating the changes by rule superseded failure frustrated clearly not perfecting an responsibility At most his court. sentencing nor his ineffective from the the defendant resulted Although neither entitled, and he should which under oath has testified trial counsel former to establish. cross-examination, required, the se- subject to or been of their content filings and the quence of (Colo. People, 753 P.2d Estep v. suggest strongly communications written excep "good cause" 1988), we extended understand failure to trial counsel's include, without tion of C.A.R. appeal, and obligation rep of counsel's effectiveness hearing on the in this re- representation his substandard late, days only resentation, filing that was evidentiary at an established could be gard, commu undisputed product and was the however, previ- so, we have hearing. Even *7 from part resulting at least nication at assistance ineffective ously held that cooperate attempt defense an level, level, the trial just as at appellate first attorney's request the district with at 410. Id. prejudice. requires cir those Under motions. related finalize com- that he a demonstration In addition express able cumstances, court was an intent for counsel municated prejudiced not state was confidence not aban- that he did presumably appeal, and disagree, strongly delay. I a short such intervening two during the don that maj. op. see however, any suggestion, with required to would be years, -- upon it taken have also we n. meritorious in fact had that he demonstrate prejudice an absence to find ourselves therefore Id. We grounds v. Swainson years late. filings that Cf. certainty degree of any with predict cannot (remand (Colo.1986) 712 P.2d People, ineffective to establish be able he would concerning de findings factual hearing and him to to entitle such as of counsel assistance ineffective claims fendant's of an reinstatement Allen, 182 Colo. People v. neglect); excusable (1973)(dismissal 82(c), regard to Crim. Similarly, with for defen prejudice filing, without defendant, late informed pursuant trial court motion in dant the defen- appeal; right to sentencing, of his there); good cause to CAR. assert only aware dant was (Colo.App. Boivin, P.2d 1038 People v. appel- actually requested but representation 1981) (permitting where
failed to demonstrating meet their burden of
compliance with Crim. P. at factual relief).
hearing post-conviction on motion for
Where the effectiveness of defense or either neglect excusable matter, contingent upon the communi-
cated intent of the defendant prej- or lack of People,
udice to salutary there are rea- requiring
sons for a factual determination. appellate
Because an is without
effective means of resolving such factual
questions, post-conviction motion for relief a hearing in the district court are an
appropriate procedural doing vehicle for so.
At least where a defendant has rested on his years,
laurels for several actively without own,
prosecuting appeal, se or even
inquiring whether it properly initiated active, and remains I do not consider it over-
ly burdensome, or a technicality, mere
require him to establish his bona fides. I today's holding
fear that will effectively force simply courts to accept the self- serving allegations of defendants who fail to
perfect timelyappeal.
I respectfully dissent.
I am authorized to state that Justice joins
KOURLIS in this dissent.
The PEOPLE Colorado, of the State of
Plaintiff-Appellee, ROCKWELL,
Mark E. Defendant-
Appellant.
No. 02CA1812.
Colorado Appeals, Court of
Div. III. 31,
Dec. 2003.
As Modified on Denial Rehearing April 2004.
Rehearing July Denied 2004.
Certiorari Granted Jan. 2005.