People v. TerryPeople v. Terry
Antony Noble, Alternate Defense Counsel, Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant
Opinion by JUDGE TAUBMAN
¶ 1 Defendant, Andrew Joseph Terry, appeals the district court‘s denial of his
I. Background
¶ 2 Terry was charged in two cases with multiple offenses arising from two separate incidents; the cases were joined for trial. In the first case, law enforcement officers in an unmarked patrol car were monitoring a parking lot due to a high volume of recent thefts. Officers observed a man looking in various car windows and acting suspiciously before joining Terry in a truck and driving away. As Terry drove away, officers noticed a broken window in one of the vehicles into which the man had peered, so officers followed the truck and eventually instructed an officer in a marked patrol car to pull it over. As the officer attempted to stop Terry, he rammed his truck into the patrol car; the attending officer reported that he “was afraid for his safety.” Officers uncovered stolen items in the truck and arrested Terry.
¶ 3 During Terry‘s arraignment, he fled from the courtroom, purportedly panicking because of his surprise at being charged with attempted murder of a police officer. A week and a half later, officers responded to a report of an intoxicated man—later identified as Terry—driving his truck around a Walmart parking lot. As the officer approached Terry, he got in his truck, slammed the officer‘s hand in the door, and ran over the officer‘s foot as he sped away. A high-speed chase ensued and, when officers cornered him, he accelerated toward an officer who had drawn his gun. As Terry drove away, the officer fired his gun, shooting him in the back. Once officers surrounded him with patrol cars, Terry attempted to escape again by ramming the patrol cars. This incident formed the basis for the second case.
¶ 4 At trial, the district court joined Terry‘s cases, and he entered a plea of not guilty by reason of insanity (NGRI). He withdrew his plea on the second day of trial after a court-ordered mental health evaluation established his legal competence to proceed at trial and his sanity during the commission of the crimes. The jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular
¶ 5 On direct appeal, a division of our court affirmed the convictions, but it vacated the sentence for attempted extreme indifference murder and remanded to the district court for resentencing on that count. See People v. Terry, 2015 WL 9584878 (Colo. App. No. 13CA0443, Dec. 31, 2015) (not published pursuant to
¶ 6 Terry then filed a pro se motion for postconviction relief with a request for counsel. The district court denied three of the four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender and the prosecution and instructed the prosecutor to respond to the pro se motion and any supplemental motion within thirty days of its filing.
¶ 8 Terry appeals the district court‘s dismissal of his five claims of ineffective assistance of counsel without first ordering a response from the prosecution.
II. Postconviction Court Procedure
¶ 9 Terry contends that the district court erred in denying his petition for postconviction relief because
A. Standard of Review
¶ 10 We review de novo a district court‘s denial of a
B. Applicable Law
¶ 11
¶ 12 The public defender or ADC1 must respond, stating his or her intention to enter an appearance on behalf of the defendant, identifying any conflict, requesting any needed time extension, and setting forth additional claims counsel intends to pursue.
“Thereafter, the court shall grant a prompt hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law.”
Id.
¶ 13 Though the rule appears to outline a detailed approach to handling pro se motions for postconviction relief, we observe gaps in the scheme that require the court to fill in, as necessary. First, the rule makes no mention of ADC and only refers to the Public Defender‘s Office. Thus, when the defendant requires ADC, it remains unclear what amount of time the court may allow for an entry of appearance by counsel.
¶ 14 When ADC must act as appointed counsel,
C. Analysis
¶ 15 We conclude that, where the text of
¶ 16 While disposing of three out of four claims, the court also ordered the prosecutor to respond to Terry‘s claims once appointed counsel filed a supplemental motion. After the court received Terry‘s supplemental motion, it concluded that, based on the pleadings, it was appropriate to enter a ruling containing written findings of fact and conclusions of law on five out of six of Terry‘s contentions before ordering the prosecutor to respond—and, presumably, allowing a reply to that response—to the sole remaining allegation. Terry contends
¶ 17 We conclude that the procedure employed by the district court fell within the bounds of the prescribed procedure.
¶ 18 Terry urges us to draw parallels between the present case and Davis; however, the two are distinguishable. In Davis, 2012 COA 14, ¶ 13, 272 P.3d 1167, 1170, a division of our court held that the postconviction court committed reversible error when it ordered the State to respond to the defendant‘s pro se petition without first serving a copy on appointed counsel, and without allowing appointed counsel to file supplemental briefing. After the postconviction court received the State‘s response, it considered a newly prepared affidavit attached to the response and ruled on the petition without granting the public defender an opportunity to respond.
¶ 19 Here, the court did not deviate from the rules of
¶ 20 Terry also relies on People v. Higgins; but, that case is also distinguishable. 2017 COA 57, 413 P.3d 298. There, the division concluded that the district court committed reversible error by ordering the prosecution to respond to the defendant‘s pro se motion and, after receipt of that response, denying the motion without first serving the Public Defender‘s Office with the motion and permitting an opportunity to respond.
¶ 21 Accordingly, we conclude that the district court did not err in ruling on a portion of the petition and ordering the prosecution to respond to the remaining portion. However, even if the district court erred, any error was harmless because Terry has not shown that he was prejudiced by the procedure used by the district court. Moreover, the court was within its authority to deny the motion without a hearing because it properly determined, as discussed below, that Terry‘s claims did not warrant an evidentiary hearing.
III. Ineffective Assistance of Counsel
¶ 22 Terry contends that we should vacate the district court‘s denial of his postconviction petition and instruct the postconviction court to order the prosecutor to respond to his motion because Terry sufficiently pleaded ineffective assistance of counsel. He asserts five allegations of ineffective assistance of counsel. We disagree. We first address Terry‘s arguments that counsel failed to file a motion to suppress his arrest before we separately address his argument that counsel failed to request a proportionality review.
A. Standard of Review
¶ 23 The determination of ineffectiveness of counsel presents mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984). “When reviewing a postconviction court‘s findings on a mixed question of [fact] and [law], we defer to the court‘s findings of fact if they are supported by the record but review legal conclusions de novo.” Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007), as modified on denial of reh‘g (July 2, 2007).
B. Applicable Law
¶ 24 We analyze a claim of ineffective assistance of counsel under the two-prong standard announced in Strickland, 466 U.S. at 687. A defendant must establish deficiency in counsel‘s performance and that the deficient performance prejudiced the defense.
¶ 25 In reviewing any potential deficiency in counsel‘s performance, we must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to
¶ 26 Our determination of the prejudice prong rests on whether we discern a reasonable probability that any errors by counsel caused an unfavorable result for the defendant at trial.
C. Analysis
¶ 27 First, trial counsel‘s decision not to pursue an NGRI defense after initially advising Terry to so plead was not deficient. The district court recognized at pretrial hearings that Terry‘s mental health evaluation found that he was competent to proceed at trial and that he was sane during the commission of the offenses. Considering the mental health evaluation and the fact that Terry does not identify expert testimony that would rebut the court-ordered evaluation results, we conclude that trial counsel‘s decision not to pursue the NGRI plea was objectively reasonable. Likewise, his claim that trial counsel failed to advance another mental health defense fails for the same reasons.
¶ 28 Terry next asserts that trial counsel performed deficiently in failing to pursue a voluntary intoxication defense. We conclude the district court properly determined that trial counsel‘s decisions were strategically sound. It concluded that, in light of the following facts, trial counsel was not unreasonable in declining to pursue the defense: (1) In his
¶ 29 Terry‘s averment that trial counsel acted deficiently in not pursuing lesser nonincluded offenses is unconvincing. We agree with the district court‘s conclusion that
as a matter of law, the fact that lesser nonincluded offenses were not submitted for the jury‘s consideration has no effect whatsoever regarding the verdicts which were submitted to the jury, and determined by them to have been proven beyond a reasonable doubt. When a lesser non-included offense is submitted to the jury, the defendant can be found guilty of BOTH the original offense as well as the lesser non-included offense.
The district court‘s decision tracks the conclusion in People v. Skinner that a defendant‘s request for a lesser nonincluded offense is purely strategic. 825 P.2d 1045, 1047 (Colo. App. 1991). Theoretically, counsel should only request a lesser nonincluded offense instruction when he or she believes that a jury would acquit the defendant of the charged offense and find him or her guilty of the lesser nonincluded offense.
¶ 30 Here, trial counsel argued in closing that Terry was guilty of the less severe offenses of criminal mischief, eluding, and trespassing, but not guilty of assault or attempted murder. The jury was instructed on—and rejected—the lesser included offenses involving the injured officer. Therefore, it is conceivable that trial counsel did not want to “risk[ ] conviction on [the lesser nonincluded] offense. ..., instructing the jury on a lesser nonincluded offense carries an additional risk, not present in the lesser included offense context: that a defendant will be convicted of both the charged offense and the lesser nonincluded offense.” People v. Newmiller, 2014 COA 84, ¶ 34, 338 P.3d 459, 466.
¶ 31 Terry also alleges that counsel failed to move to suppress his stop and arrest by an officer, contending that the officer did
¶ 32 In a Terry stop, officers may temporarily detain an individual with less than probable cause. Outlaw v. People, 17 P.3d 150, 156 (Colo. 2001), as modified on denial of reh‘g (Feb. 5, 2001). “It is now long established that a limited seizure of a person, designated an investigatory stop, is permitted by the Fourth Amendment upon reasonable articulable suspicion, not rising to the level of probable cause, that the person is committing, has committed, or is about to commit a crime.” People v. Ball, 2017 CO 108, ¶ 9, 407 P.3d 580, 583. This reasonable
¶ 33 Here, officers received reports of an intoxicated driver; they confirmed it was Terry‘s truck; and the officers had reason to stop him because they had an interest in preventing drunk driving. Therefore, we perceive multiple reasons for counsel to decide not to move to suppress.
¶ 34 Terry asserts that the officers lacked reasonable suspicion, probable cause, and a warrant, but aside from claiming that the officers needed additional corroborating evidence of a crime or potential crime, he failed to allege in his motion facts sufficient to suggest that a motion to suppress would have succeeded. To the contrary, the trial court properly concluded that the police officers had reasonable suspicion to stop him, and later, probable cause to arrest him. Accordingly, because counsel‘s decision not to file a suppression motion did not prejudice Terry, and because we observe no deficiency in counsel‘s performance, we determine that counsel was not ineffective in this regard.2
IV. Proportionality Review
¶ 35 Finally, Terry argues that he was entitled to a proportionality review by the district court and that counsel‘s failure to request one constituted ineffective assistance. An abbreviated proportionality review presents a question of law; therefore, an appellate court can conduct a review without remanding the case to the district court. See People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002) (stating that, when an extended proportionality review is unnecessary, an appellate court may conduct an abbreviated proportionality review without a remand); see also People v. Buckner, 228 P.3d 245, 252 (Colo. App. 2009) (asserting that we review de novo whether a sentence yields an inference of gross disproportionality). Based on our abbreviated proportionality review, we conclude there was no ineffective assistance of counsel.
A. Standard of Review
¶ 36 We review de novo the legal question of a sentence‘s constitutional proportionality. People v. Strock, 252 P.3d 1148, 1157 (Colo. App. 2010).
B. Applicable Law
¶ 37 The Eighth Amendment‘s prohibition against cruel and unusual punishment does not require strict proportionality between the crime committed and the sentence imposed. It forbids only sentences that are “grossly disproportionate” to the crime
¶ 38 Our examination on appeal requires only an abbreviated proportionality review in which we compare the gravity and seriousness of the offense to the severity of the punishment. Deroulet, 48 P.3d at 524. Gravity and severity are determined by “the harm caused or threatened to the victim or to society and the culpability of the offender.”
¶ 39 We classify certain crimes—such as aggravated robbery, robbery, burglary, attempted burglary, accessory to first degree murder, and drug-related crimes—“grave and serious” per se due to the clear potential for harm to society. Strock, 252 P.3d at 1157; see People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). If the crime under review is grave and serious per se, the “court need not consider the harm caused or threatened to the victim or to society and the culpability of the defendant. The court may simply consider the harshness of the penalty.” Strock, 252 P.3d at 1158.
¶ 40 The list of per se grave and serious crimes grows with our appellate jurisprudence. Consequently, the Strock division concluded that vehicular homicide while driving under the influence is grave and serious per se because of the grave harm inflicted and the culpability of the conduct.
whether the crime involves violence, the absolute magnitude of the crime and the defendant‘s motive. Gaskins, 825 P.2d at 36-37. However, this list is not exhaustive, but merely illustrative of “generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes.”
¶ 41 We need not classify each sentenced crime as grave and serious to conclude that, in combination, they were sufficiently grave and serious to determine that the sentence was not grossly disproportionate. See People v. Loris, 2018 COA 101, ¶ 11, 434 P.3d 754, 757.
C. Analysis
¶ 42 The jury convicted Terry of multiple felonies involving violence, including second degree assault, vehicular eluding, and attempted extreme indifference murder. A division of our court recognized vehicular eluding as a grave and serious offense due to the risk to society. See People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004). Another division classified first degree assault as grave and serious. People v. Oldright, 2017 COA 91, ¶ 6, 457 P.3d 638, 641. Further, attempted extreme indifference murder entails components of intention and violence, not unlike felony menacing, first degree assault, and robbery, which our state appellate courts have already recognized as grave and serious per se. See Oldright, ¶ 6, 457 P.3d at 641; see also People v. Cisneros, 855 P.2d 822, 830 (Colo. 1993) (concluding that, because the offenses underlying the defendant‘s conviction as a habitual offender involve crimes of violence or potential violence by their very nature, the combination of the offenses met “the requisite requirement of gravity or seriousness to support a sentence of life imprisonment“);
¶ 43 Terry‘s offenses presented danger to society—the chase, second degree assault of a peace officer, and attempted extreme indifference murder all posed extreme danger to the public as well as to the officers who attempted to stop Terry.
¶ 44 Finally, in conducting an abbreviated proportionality review under the habitual criminal statute, as we do here, we “must consider the gravity or seriousness of the underlying crimes together with the triggering crime....” Deroulet, 48 P.3d at 525 n.6. When considering all offenses together with the triggering offenses, including attempted extreme indifference murder, we conclude that Terry‘s offenses were grave and serious, and the ninety-six-year sentence is not grossly disproportionate. Accordingly, we need not engage in an extended proportionality review.
¶ 45 Because we do not deem his sentence to be grossly disproportionate, we conclude that Terry cannot establish that counsel‘s failure to request a proportionality review prejudiced him.
V. Conclusion
¶ 46 Accordingly, the order is affirmed.
CHIEF JUDGE BERNARD and JUDGE FOX concur.
Notes
Id. However, we need not address Kimmelman because we conclude that counsel‘s performance was not deficient.Where defense counsel‘s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.