Peo v. Hill

19CA0126 Peo v Hill 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 19CA0126 Adams County District Court No. 10CR3476 Honorable Mark D. Warner, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Steven Lee Hill, Jr., Defendant-Appellant. ORDER AFFIRMED Division V Opinion by JUDGE RICHMAN Harris and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant- Appellant 1 ¶ 1 Defendant, Steven Lee Hill, Jr. , appeals the district court’s order denying his Crim. P. 35(c) m otion for postconviction relief. We affirm. I. Background ¶ 2 Hill was convicted of sexual assault following a jury trial. His conviction was affirmed on dir ect appeal. People v. Hill , (Colo. App. No. 12CA1338, Nov. 6, 2014) (not published pursuant to C.A.R. 35(f)). Proceeding pro se, he filed a timely Crim. P. 35(c) motion f or postconviction relief, which was s upplemented after the court appointed counsel. The supplem ented motion alleged that Hill had received ineffective assistance of c ounsel both at trial and on appeal. As is relevant to this appe al, Hill asserted that his trial counsel gave him bad advice about exercising his right to testify at trial and his appellate counsel fail ed to raise an important argument on appeal. ¶ 3 The postconviction court summaril y denied all of Hill’s claims except for the one concerning his t rial counsel’s advice about testifying. The court then held a h earing on that claim, during which Hill and his trial counsel t estified. Ultimately, the court denied that claim too, concluding that Hill was not credible and ha d 2 failed to establish that his trial coun sel’s advice was “outside the range of professionally competent a ssistance.” ¶ 4 On appeal, Hill asserts that he carr ied his burden of proof at the hearing regarding his trial counsel’s alleged ineffectiveness and was entitled to a hearing regarding his appellate counsel’s alleged ineffectiveness. 1 We address th e issues in turn. II. Ineffective Assistance of Trial Coun sel ¶ 5 Hill first contends that he sufficient ly demonstrated to the postconviction court that his trial counsel’s advice about testifying constituted ineffective assistanc e of counsel, and, therefore, the court erred when it denied his clai m and his request for a new tr ial. We disagree. A. Standard of Review ¶ 6 Ineffective assistance of counsel cla ims present mixed questions of law and fact. Dunla p v. People , 173 P.3d 1054, 1063 (Colo. 2007). We defer to the post conviction court’s factual findings 1 Hill’s motion raised other claims t hat are not reasserted on appeal; we deem those claims abandoned. See People v. Rodriguez , 914 P.2d 230, 249 (Colo. 1996) (a def endant’s failure to specifically reassert on appeal claims that t he postconviction court denied constitutes a “conscious relinquis hment” of those claims). 3 if they are supported by the recor d but review its legal conclusions de novo. Id. B. Applicable Law ¶ 7 A defendant in a criminal case has a constitutional right to the effective assistance of counsel. People v. Corson , 2016 CO 33 , ¶ 3 2. To prevail on an ineffective assista nce of counsel claim, a defendant must demonstrate that (1) his coun sel’s performance was deficient and (2) he was prejudiced as a r esult. Strickland v. Washington , 466 U.S. 668, 687 (1984). ¶ 8 To establish deficient performance, a defendant needs to show that his counsel’s representation “f ell below an objective standard of reasonableness.” Id. at 687-88. In so doing, he must overcome a “strong presumption that couns el’s conduct [fell] within the wide range of reasonable professional as sistance.” Id. at 689. ¶ 9 To establish prejudice, a defendan t needs to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” I d. at 694. “Reasonable probability” m eans “a probability sufficient to undermine confidence in the outc ome.” Id. 4 ¶ 10 If a court concludes that a defenda nt has failed to prove either of the test’s prongs, it need not ad dress the other. People v. Washington , 2014 COA 41, ¶ 20 . Further, as the trier of fact, the postconviction court is responsibl e for determining the weight an d credibility to be given to witness t estimony, People v. Curren , 228 P.3d 253, 258 (Colo. App. 2009), which are determinations we may not disregard on appeal. Peopl e v. Hardin , 2016 COA 175, ¶ 43 . ¶ 11 In addition to the right to couns el, a defendant in a criminal case has a constitutional right t o testify in his own defense. Peopl e v. Curtis , 681 P.2d 504, 509-10 ( Colo. 1984). One of defense counsel’s duties is to adequately a dvise her clients about the right . See People v. Naranjo , 840 P.2d 319, 323 (Colo. 1992) (explaining that a defendant is entitled to the “f ull and careful advice of his lawyer” before deciding whether to testify at trial (quoting Marti nez v. People , 173 Colo. 515, 518 , 48 0 P.2d 843 , 844 (1971))). And lik e the right to counsel, the right to testify has been recognized as a fundamental right deserving of cert ain procedural safeguards. People v. Blehm , 983 P.2d 779 , 7 86 (Colo. 1999). ¶ 12 Accordingly, a defendant may waiv e his right to testify, but only if the waiver is knowing, volun tary, and intelligent. Moore v. 5 People , 2014 CO 8, ¶ 10 . To ensur e a valid waiver, the trial court must provide a multi-part “ Curt is advisement,” advising the defendant that, among other thing s, he has a right to testify and if he wants to testify then no one can prevent him from doing so. I d. ¶ 13 One of the purposes of a Curti s advisement is to preclude postconviction disputes between d efendant and counsel, People v. Chavez , 853 P.2d 1149, 1153 (Colo . 1993), but disputes still arise. This is true even when the advise ment was adequate. See Moore , ¶ 22 (a complete Curtis advisem ent is not dispositive of whether a defendant validly waived his right to testify). ¶ 14 At the same time, because a compl ete Curtis advisement strongly suggests that a defendant ’s wavier of his right to testify was valid, a defendant who wants t o challenge his waiver in the face of an adequate advisement may int roduce new evidence showing that his waiver was not knowing, voluntary, and intelligent. Id. at ¶ 26. For example, he may put on evidence of “what [he] did or did not understand in waiving the right , what the attorney did or did not say; and any other pertinent circumstances relating to [his] condition at the time of the waiv er.” Id. 6 ¶ 15 Advising a defendant not to testify, by itself, does not constitute ineffective assistance of counsel. People v. Layton , 200 Colo. 59, 61-62, 612 P.2d 83, 85 ( 1980). C. Analysis ¶ 16 In his motion, Hill alleged that his trial counsel was ineffective because counsel inadequately ad vised him about his right t o testify at trial and then pressured him no t to testify, rendering his eventual waiver of the right both “unknowing” and “involuntary.” (This despite the record reflecting t hat he received a complete Curt is advisement from the trial court. ) ¶ 17 During the hearing, Hill explain ed that, looking back, he wanted to testify at trial that hi s sexual encounter with the victim was consensual because “if th e jury would have heard my side of the story, I think they would have seen a bigger picture and seen that — maybe some truth in w hat I was saying.” As for why he did not testify, Hill said that his couns el, in a “very calm” manner, t old him that he should not testify “b ecause I think you’re going to lose the case,” and this “scared” him. On cross-examination, however, Hill admitted he both received and understood the trial court’s 7 advisement that he (1) had the right to testify if he wanted to and (2) could exercise the right even if his attorney did not want hi m to. ¶ 18 For her part, Hill’s trial counsel sai d that in preparation for Hill’s trial, she discussed with hi m that he would have to make a decision about whether or not to t estify. Although counsel did not recall their exact discussion, sh e testified that her practice at the time was to “talk to my clients abo ut the fact that they are the only ones who get to make the decision to testify or not,” and “[i]t’s my job as an attorney to be a good g uide; to advise a client as to whether they should testify or not and what the implications are.” ¶ 19 Counsel further explained that she advised Hill not to testify partly because Hill “was a little bit foggy about what happened that night” and had “said that he was under the influence so he couldn’t remember everything.” This, coun sel worried, would allow the prosecution to “make hay” of the ga ps in his story. Additionally, she thought that the narrative Hill told her about the encounter being consensual was “generally c onsistent” with statements h e had made to police after the incident that were going to be admitted at trial. Last, she explained that Hill was set to go to trial in a different case after the trial in this case, and that this case involved 8 CRE 404(b) evidence, so Hill “woul d be opening himself up to statements that he would be makin g not only in this case but that could potentially be used against h im in the [other] case.” ¶ 20 In a written order, the postconvicti on court denied Hill’s ineffective assistance of counsel cla im, finding that “based upon credibility factors,” it was “mor e likely [than not]” that trial couns el adequately advised Hill about his r ight to testify, and concluding that trial counsel’s advice not to t estify was “objectively reasonable” because  Hill’s statements to police, which were played for the jury, articulated his story of a con sensual encounter;  a prior felony conviction of Hill’s w ould have been revealed to the jury had he testifi ed;  there was an open and unresolved case in another jurisdiction involving similar char ges and similar factual allegations, and deciding to testify w ould have subjected Hill to cross-examination in that case; and  Hill’s recollection of counsel’s perf ormance was not clear. ¶ 21 On appeal, Hill contends that the p ostconviction court erred because his trial counsel’s advice about testifying was not 9 “objectively reasonable,” as couns el “had no strategic reason not to call him,” his testimony “could not have hurt his case,” and “[w]ithout his testimony, the jury had no choice but to convict him. ” ¶ 22 But these arguments are unpersua sive because we agree with the postconviction court that Hill’s trial counsel expressed legitimate reasons as to why sh e advised Hill not to testify, and th e postconviction court credited her, and not Hill’s, testimony. ¶ 23 What is more, Hill admitted that when he waived his right to testify at trial, he understood that he had the right and could testify even if his counsel did not want him to. Accordingly, accepting that Hill was “scared” by the prospect of losing his case, and even assuming that his trial counsel tol d him that he “would” lose if h e testified, the evidence demonstrat es that Hill’s waiver was knowing, voluntary, and intelligent, and was not the product of coercion or of ineffective assistance of counsel. III. Ineffective Assistance of Appellat e Counsel ¶ 24 Hill next contends that the postconvi ction court erred when it denied him a hearing regarding his appellate counsel’s alleged ineffectiveness. Again, we disagr ee. 10 A. Standard of Review ¶ 25 A district court’s denial of a Crim. P. 35(c) motion without a hearing is reviewed de novo. Pe ople v. Higgins , 2017 COA 57, ¶ 11 . B. Applicable Law ¶ 26 Ordinarily, a defendant is entitled t o an evidentiary hearing on the claims contained in his Crim. P. 35(c) motion. See People v. Simpson , 69 P.3d 79, 81 (Colo. 2 003) (“To warrant a hearing, a defendant need only assert facts that, if true, would provide a basis for relief.”). Still, a court may d eny a Crim. P. 35(c) motion without a hearing if “the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief.” Kazadi v. P eople , 2012 CO 73, ¶ 17 ; see a lso Crim. P. 35(c)(3)(IV). Bare and c onclusory allegations are, likewis e, insufficient. People v. Phipps , 2016 COA 190M , ¶ 18. ¶ 27 The test for determining whether a defendant has received ineffective assistance of appellat e counsel is generally the same as the test for whether he has receiv ed ineffective assistance of trial counsel. People v. Ray , 2015 CO A 92, ¶ 13. Application of the test will vary, however, depending on t he type of claim presented. I d. 11 ¶ 28 As is relevant to this case, when t he claim is that counsel’s performance was deficient becaus e she overlooked a meritorious argument on appeal, the defendan t must show that the ignored argument was “clearly stronger” t han those presented. People v. Trujillo , 169 P.3d 235, 238 (Colo. App. 2007) (quoting Ellis v. Hargett , 302 F.3d 1182, 1189 (10t h Cir. 2002)). It is not enough t o show that the ignored argument w as nonfrivolous. Id. ; Peopl e v. Rodriguez , 914 P.2d 230, 249 (Colo . 1996) (rejecting a claim that appellate counsel was ineffective f or failing to raise all available issues). And to demonstrate pr ejudice, the defendant must show a reasonable probability that, but f or counsel’s errors, he would have prevailed on appeal. People v. Long , 126 P.3d 284, 286 (Colo. App. 2005). C. Analysis ¶ 29 In his motion, Hill alleged that his appellate counsel was ineffective because although couns el raised two issues on appeal — that Hill’s statements to the police should have been suppressed and that the CRE 404(b) evidence s hould not have been admitted — counsel failed to raise an even stro nger one: prosecutorial misconduct. 12 ¶ 30 Specifically, Hill asserted that his counsel should have argued that a prosecutor made “improper and prejudicial” statements during closing arguments when th e prosecutor told the jury: “I suspect that in the next few minut es you will hear discussion alluding to credibility issues of [t he victim], or allude that this was maybe a chance encounter, on e-night stand, or act of prostitution. I am asking you don’t allow the def endant to further denigrate, humiliate [the victim].” 2 ¶ 31 According to Hill’s motion, the stat ements were improper because it is “reasonably likely” t hat they “inflame[d] the passions of the jury to reach a decision based upon emotions and bias, instead of the evidence in the record.” Th e motion also argued that had th e issue been raised on direct appeal, there is a “reasonable probability” that a division of this court would have determined that the statements were improper and, therefore, “the outcome of the proceedings would have been diff erent.” 2 Hill objected to the statements at trial, but the court overruled his objection. 13 ¶ 32 In its order summarily denying Hi ll’s claim, the postconviction court explained that, in its opinion , the statements, while arguably improper, were at most harmless, and as such, the court could not conclude that Hill’s appellate couns el ignored an issue that was “clearly stronger” than the two that were presented. ¶ 33 On appeal, Hill contends that the p ostconviction court erred because the allegations in his moti on were facially sufficient to warrant a hearing on his claim. We disagree because although th e motion explained why Hill thinks his prosecutorial misconduct argument is a good one, neither it nor the reply filed in support thereof alleged how the argument was clearly stronger than the arguments that appellate couns el did make. In fact, there is no discussion whatsoever comparing t he relative strength of the prosecutorial misconduct argumen t against either the suppression argument or the Rule 404(b) argu ment. And the bare allegation that Hill’s appellate counsel fail ed to raise a potentially meritorious argument “does not overcome th e presumption that appellate counsel’s choice [to assert other ar guments] was the result of a strategic election.” Trujillo , 169 P.3 d at 239. 14 ¶ 34 Thus, we agree with the postconvic tion court’s decision to deny Hill’s claim without a hearing . See Taylor v. Taylor , 2016 COA 100, ¶ 31 (we may affirm on any ground supported by the record). IV. Conclusion ¶ 35 The order is affirmed. JUDGE HARRIS and JUDGE GOM EZ concur.