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Introduction – Few strategies work in an appeal of a jury based criminal conviction in Colorado and in most oher states. A common claim – when an attorney loses a criminal trial in Colorado – is to assert that the lawyer was “ineffective” and therefore the conviction was illegal and must be reversed. The critical issue here, however, is establishing the burden of proof that would lead a Colorado Court of Appeals to that conclusion.
Here are the standards and the law that apply to successfully establishing a case for ineffective assistance of counsel in Colorado
1) counsel misrepresents the direct consequences of the plea, such as providing incorrect information concerning the possible sentence that could be imposed on the conviction;
2) the advice or information provided by counsel was below the range of competence reasonably expected of defense counsel;
3) the defendant was prejudiced by the erroneous advice.
Also, a defendant may be denied effective assistance when counsel provides erroneous advice on the collateral consequences of the plea.
When a defendant raises a claim of ineffective assistance of counsel based on the failure of counsel to advise of a direct or collateral consequence of a plea, Colorado courts apply the two-part Strickland test to determine whether representation was ineffective.
First, the court must determine whether counsel’s advice to the defendant, or lack thereof, regarding a direct or collateral consequence, was “within the range of competence demanded of attorneys in criminal cases.”
Second, the defendant must establish by an affirmative showing that there is a “reasonable probability” that “but for” counsel’s unprofessional error, the defendant would have pled not guilty and insisted on going to trial, thus undermining the confidence in the outcome of the proceeding.
In a recent Colorado Criminal Court of Appeals decision – the claim of ineffective assistance of counsel fell on deaf ears… but the court’s analysis of the tests applied in the context of the most common vehicle for such a claim, a Rule 35 C Motion, is helpful here:
A defendant who claims that his or her counsel was ineffective must show that his or her attorney’s representation was deficient and that the deficient representation prejudiced him or her. Strickland v. Washington, 466 U.S. 668, 687-96 (1984); People v. Brown, 250 P.3d 679, 680-81 (Colo. App. 2010).
A court conducting a postconviction hearing under Crim. P. 35(c) determines the weight and credibility to be given the witnesses’ testimony. Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007).
On review, we defer to the trial court’s factual findings, but we review de novo the court’s ultimate conclusions concerning the deficient representation and prejudice prongs of the test. Brown, 250 P.3d at 680-81.
We will affirm a trial court’s determination that the defendant was not prejudiced when the evidence only provides speculative proof of prejudice. People v. Wiedemer, 692 P.2d 327, 328 (Colo. App. 1984).
Further, although we conclude that the trial court properly denied defendant’s Crim. P. 35(c) motion, we rely on different grounds. People v. Vondra, 240 P.3d 493, 494 (Colo. App. 2010).
We conclude, for the reasons listed below, that defendant was not prejudiced by plea counsel’s alleged deficient performance.
To prove prejudice in this case, defendant was required to show, by a preponderance of the evidence, see People v. Dunlap, 124 P.3d 780, 795 (Colo. App. 2004), that there was a reasonable probability, but for plea counsel’s errors, that he would not have confessed the motion to revoke the deferred judgment agreement and would have insisted that the motion be resolved at a hearing. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.