Murphy v. People

863 P.2d 301, 17 Brief Times Rptr. 1828, 1993 Colo. LEXIS 914, 1993 WL 467721

Opinions

Justice SCOTT

delivered the Opinion of the Court.

In Murphy v. People, No. 91CA0616 (Colo.App. April 30, 1992) (not selected for official publication), a divided panel of the court of appeals affirmed the order of the trial court denying defendant Patrick S. Murphy’s motion for postconviction relief. We granted Murphy’s petition for certiorari in order to decide whether a defendant is entitled to conflict-free counsel when a trial court orders the appointment of counsel to assist the defendant. We hold that a defendant is. We reverse and return this case to the court of appeals for remand to the trial court for further proceedings.

I

In November of 1989, petitioner Patrick S. Murphy was charged in El Paso County District Court with three counts of second-degree burglary,¹ two counts of theft of a thing valued between $300 and $10,000,² one count of theft of a thing valued over $10,000,³ and two counts of theft by receiving a thing valued at between $300 and $10,000.⁴ One month later, the district attorney initiated a second criminal proceeding against Murphy in which he was charged with one count of second-degree burglary and one count of theft of an object valued between $50 and $300.

In January of 1990, the district attorney filed an amended information in each of the two pending criminal matters to include three habitual criminal counts⁵ indicating that Murphy had previously been convicted of three additional felonies.

In March of 1990, Murphy agreed to plead guilty to one count of second-degree burglary in each of the two pending cases and to receive concurrent aggravated sentences of sixteen to twenty years on each count. In exchange for Murphy’s plea, the prosecution agreed to dismiss all remaining counts in both cases, including all habitual criminal charges. On May 21, 1990, the district court sentenced Murphy to serve two concurrent sixteen-year terms. Throughout the proceedings, Murphy was represented by a staff attorney from the El Paso County Office of the Public Defender.

On February 5, 1991, Murphy filed a pro se Crim.P. 35(c) motion and memorandum of points and authorities requesting that the trial court vacate his conviction in both cases.⁶ In his motion, Murphy asserted that he had been denied effective assistance of counsel throughout the proceedings. In substance, Murphy claimed that his attorney failed to provide him with sufficient information during the providency hearing of either the elements of burglary or of his rights under Crim.P. 11, failed to investigate the facts of the case, failed to prepare for trial, failed to challenge the excessive sentencing, and failed to file for postconviction relief. Murphy further alleged that he was “pressed” by his attorney to enter a plea of guilt, when in fact he wanted to proceed to trial. Also within his 35(c) motion to vacate, Murphy requested that the district court appoint counsel from outside of the Colorado Public Defender’s Office to assist him in his action.⁷

On February 21, 1991, the district court issued an order appointing the public defender “to assist the Defendant,” and purportedly denying Murphy’s motion for reconsideration pursuant to the wrong subsection of the rule, Crim.P. 35(b).⁸ The full text of the court’s order reads as follows:

This matter comes forward upon motion of the defendant for appointment of counsel to review and assist in preparation of a motion for relief from sentence. The Court has denied a motion for recon sideration pursuant to C.R.C.P. 35(b) and that motion is not open for consideration. The Public Defender is appointed to assist the Defendant.

Noting the court’s error, Murphy wrote a personal letter to the court explaining that his motion was one for postconviction relief under Crim.P. 35(c) and asking that the court reconsider his motion under the appropriate provision of the rule.

On March 14, 1991, the district court issued a written order denying Murphy’s Crim.P. 35(c) motion. The three-paragraph order states in relevant part as follows:

While the Defendant list[s] numerous case citations[,] his motion fails to allege any factual allegations in support of his motion. For instance, he was thoroughly advised by both reading of the information and a less formal explanation of the nature and elements of the crime to which a plea of guilty was entered. The defendant not only acknowledged his understanding, but affirmatively stated he had no questions.

On appeal, Murphy argued, as he does now, that the district court erred when, on February 21, 1991, it appointed the same attorney that was the principal subject of Murphy’s Crim.P. 35(c) ineffective assistance of counsel motion to assist him “in preparation of a motion for relief from sentence.” In effect, Murphy explained, the district court’s appointment required that the Public Defender litigate the claim against himself, causing an incurable conflict of interest. Additionally, Murphy argued that his motion put forth sufficient factual allegations such that the district court erred in not granting his request for an evidentiary hearing.

A divided panel of the court of appeals affirmed the order of the district court, holding that the district court’s ruling on the merits of Murphy’s motion rendered the question of defendant’s right to conflict-free representation moot. People v. Murphy, No. 91CA0616 (Colo.App. April 30, 1992) (not selected for official publication). In reaching this conclusion the court cited Kostal v. People, 167 Colo. 317, 447 P.2d 536 (1968), for the proposition that where a motion contains insufficient factual allegations, there is no requirement that an attorney be appointed to represent the defendant. Thus, because Murphy had no right to the appointment of counsel, the court concluded that the issue of whether his appointed attorney was conflict-free was irrelevant to resolution of the Crim.P. 35(c) motion. Similarly, with regard to Murphy’s contention that he was entitled to an evidentiary hearing to present his motion, the court of appeals held that Murphy’s motion failed to provide sufficient supporting averments to avoid summary denial. Specifically, the court found that Murphy “did not indicate what material facts would have been discovered by [additional] investigation or trial preparation or how [Murphy] had been prejudiced by the alleged failure.” Finally, based on Murphy’s failure to provide the court of appeals with a transcript of the providency hearing, the court refused to overturn the district court’s finding that Murphy was thoroughly advised of the nature and elements of the crime to which Murphy pleaded guilty. In dissent, Judge Tursi argued that the appearance of a conflict of interest here, especially when compounded by the failure of the public defender to present an adequate record for appellate review, required that the case be remanded for the appointment of conflict-free counsel to assist Murphy in the refiling and presentation of his motion.

We granted certiorari to review the following issue:

Whether the court of appeals erred in affirming the trial court’s appointment of the trial attorney to assist petitioner in the Crim.P. 35(c) proceeding, who was the subject of petitioner’s ineffective assistance of counsel claim, and of subsequently denying petitioner a hearing on the Crim.P. 35(e) motion.

We now reverse and remand to the court of appeals with directions that it remand the matter to the district court for the purpose of appointing conflict-free counsel.

II

In determining that the question of conflict-free counsel was moot, the court of appeals reasoned that Murphy was not entitled to the assistance of appointed counsel since the trial court correctly determined that Murphy’s claims were not supported by sufficient factual allegations to trigger the statutory right to such assistance, i.e., since Murphy had no right to counsel in the first place, it was immaterial that the counsel who was appointed may have had an incurable conflict of interest. Additionally, the court of appeals held that the trial court was correct in determining that Murphy's motion was factually insufficient to require an evidentiary hearing.

We find it unnecessary to address the adequacy of Murphy’s motion. Whether or not Murphy’s 35(c) motion was sufficiently specific to trigger the right to counsel, it cannot be disputed that the district court, by its own action, ordered the appointment of the same attorney that had represented Murphy in the proceedings below.⁹ By making such an appointment, the district court created a situation where appointed counsel was forced to litigate against himself, clearly causing an impermissible conflict of interest.¹⁰ See McCall v. District Court, 783 P.2d 1223, 1227 (Colo.1989) (“A local public defender faced with the prospect of arguing his or her own incompetence to protect a client’s interests on appeal clearly has a conflict of interest requiring disqualification.” ¹¹); accord Riley v. District Court, 181 Colo. 90, 507 P.2d 464 (1973) (ruling that where a defendant alleged his guilty plea was caused by his attorneys’ ineffective assistance, those same attorneys could not represent the defendant in the Crim.P. 35(b) proceeding alleging ineffective assistance). Not only does such a conflict harm the interests of the client, who is entitled to the assistance of a zealous advocate,¹² see Cruz v. People, 157 Colo. 479, 405 P.2d 213, 215 (1965) (describing the duties required of appointed counsel in a Crim.P. 35 motion), but the integrity of the entire judicial process is drawn into question. See Canon 9 of the Code of Professional Responsibility (“[a] lawyer should avoid even the appearance of professional impropriety.” ¹³); McCall, 783 (even where counsel are from different public defender offices, “the conflict of loyalties inherent in the attorney’s role would make the quality of his or her representation, and thus the fairness and impartiality of the appellate process, necessarily suspect in the public eye”). Thus, due to the inherent conflict of interest as well as the appearance of impropriety, we hold that the district court erred in appointing the public defender who represented Murphy in the trial below to assist in the litigation of Murphy’s postconviction proceedings.

Because we have reversed the judgment of the court of appeals and remanded the matter to the trial court for appointment of counsel to assist Murphy in the presentation of his 35(c) motion, it is not necessary for us to determine whether defendant was entitled to an evidentiary hearing to present his motion.

Ill

Accordingly, the judgment of the court of appeals is reversed and this case is returned to the court of appeals with directions to remand the case to the district court with instructions to vacate its order denying Murphy’s 35(c) motion and to appoint conflict-free counsel to assist Murphy, if appropriate, in the refiling and presentation of his Rule 35(c) motion.

VOLLACK, J., dissents, and ROVIRA, C.J., joins in the dissent.

Footnotes

1

. § 18-4-203, 8B C.R.S. (1986).

2

. § 18-4-40 l(2)(b), 8B C.R.S. (1986).

3

. § 18-4-40l(2)(c), 8B C.R.S. (1986).

4

. § 18-4-410(4), 8B C.R.S. (1986).

5

. § 16-13-101, 8A C.R.S. (1986).

6

. Pursuant to Crim.P. 35(c), every person convicted of a crime is entitled as a matter of right to make application for postconviction review requesting that the court vacate, set aside, or correct the movant’s sentence based on one of several grounds delimited in the rule. Unless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall grant a prompt hearing thereon and take whatever evidence is necessary for the disposition of the motion. Crim.P. 35(c)(3).

7

. Specifically, Murphy’s request to the court states as follows:

The position in this matter, then requires counsel from outside ... the Colorado Public Defender’s Office be appointed, due to a con-

flict of interest. The statutory duties ... could not be properly discharged by the Public Defender if they were appointed as they would have to evaluate the claims of the defendant, and would further be placed in the position where they would have to argue and litigate against a member of their own firm in order to properly represent the defendant. Thus ... the court should and must appoint private counsel to represent the defendant in the course of this litigation in this court.

8

.Crim.P. 35(b) provides in relevant part that the court may reduce a defendant’s sentence on its own initiative or on defendant’s motion provided that the motion is filed within 120 days after the sentence is imposed. In this case, there is no question that even had Murphy wished to file a 35(b) motion, such motion would have been barred as untimely since he was sentenced on May 21, 1990, and his motion was filed in February of 1991. See generally Mamula v. People, 847 P.2d 1135 (Colo.1993); People v. Fuqua, 764 P.2d 56 (Colo.1988).

9

. We do not intend to suggest that defendants have a right to counsel to assist with 35(c) motions. But for purposes of our review, since the state does not question the propriety of the court’s February 21, 1991 order appointing counsel, we assume that the district court has the authority to appoint counsel in Crim.P. 35(c) proceedings. This authority has been implied from the statutory language of § 21 — 1—103(1) and § 21-1-104, 8B C.R.S. (1986). Section 21-1-103 states that the public defender shall represent indigent persons under arrest or charged with a felony if the defendant requests it or the court so orders. Section 21-1-104 defines the duties of the public defender to include the "prosecut[ion] [of] any appeals or other remedies before or after conviction that he considers to be in the interest of justice." See Brinklow v. Riveland, 773 P.2d 517, 521 (Colo.1989); People v. Duran, 757 P.2d 1096, 1097 (Colo.App.1988); People v. Naranjo, 738 P.2d 407, 409 (Colo.App.1987).

10

. We recognize, of course, that a litigant may be allowed to waive the right to conflict-free representation upon full disclosure by counsel. See People v. Castro, 657 P.2d 932, 945-46 (Colo.1983). There is no contention before us, however, that Murphy waived his right to conflict-free representation, and in any case such an argument would be unpersuasive because Murphy's Crim.P. 35(c) motion explicitly requests the appointment of counsel from outside of the office of the public defender.

11

. In McCall we applied the concept of imputed disqualification to hold that the district court abused its discretion by denying the request of the appellate division of the public defender to withdraw from representing the defendant, whose claim of ineffective assistance of counsel was based on the actions of the deputy public defender in Grand Junction. In the instant case, the petitioner was represented by the appellate division of the public defender in both the court of appeals and before this court.

However, unlike the situation faced by the appellate public defender in McCall, the public defender here is not arguing the merits of the petitioner’s claim that his trial counsel provided ineffective representation. For that reason, and because neither the public defender nor the petitioner have sought appointment of different counsel in the court of appeals or before this court, we find no error in the trial court’s appointment of the appellate division of the public defender to represent petitioner on appeal.

12

. The record is silent as to whether appointed counsel provided any assistance to Murphy. It is clear, however, that counsel did not file any supplemental motions to elaborate on Murphy's pro se motion for postconviction relief.

13

. While we hold that the trial court erred by appointing the same counsel who was the subject of Murphy’s 35(c) motion, we also seriously question the conduct of defense counsel. In particular we are concerned with the failure of appointed counsel to file a motion to withdraw from the case and counsel’s decision to not file any supplemental motions or designate an adequate record. While a conflict may otherwise be debilitating, when defense counsel cannot serve as an advocate for his or her client then withdrawal is preferred over silence and inaction. See DR 2-110(B), 7A C.R.S. , (1990) (a lawyer "shall withdraw from employment, if ... [h]e knows or it is obvious that his continued employment will result in violation of.a Disciplinary Rule”); DR 5-101(A) ("Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests”); DR 5-101(B) ("A lawyer shall not accept employment in a contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness...."); see also Colorado Rules of Professional Conduct 1.7 and 1.16, 7A C.R.S. (1992 Supp.) (effective January 1, 1993) (a lawyer “shall not represent a client if the representation of that client may be materially limited by the ... lawyer’s own interests ...,’’ and a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law).