Peo v. Houser

2020 COA 76

• Court: Colorado Court of Appeals
• Decided: May 7, 2020
• Docket: 17CA0972
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 7, 2020

2020COA76

No. 17CA0972, Peo v Houser — Criminal Procedure — Postconviction Remedies — Conviction Obtained or Sentence Imposed in Violation of the Constitution; Attorneys and Clients — Ineffective Assistance of Counsel

A division of the court of appeals considers whether a district

court may deny without a hearing a defendant’s Crim. P. 35(c)

motion premised on trial counsel’s alleged ineffectiveness for not

presenting constitutional arguments that no appellate court in this

state has ever adopted. The majority holds that a Crim. P. 35(c)

motion fails to establish a meritorious claim of ineffective assistance

of counsel if it rests on an attorney’s failure to raise novel

arguments unsupported by then-existing precedent.

The partial dissent would remand based on its determination

that several of the defendant’s constitutional claims that underlie

his ineffective assistance of counsel claims have merit. The partial dissent would hold that a defendant is entitled to a hearing on a

Crim. P. 35(c) claim that presents serious constitutional questions

regarding the validity of his conviction and sentence. COLORADO COURT OF APPEALS 2020COA76

Court of Appeals No. 17CA0972 Douglas County District Court No. 06CR678 Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Charles Houser,

Defendant-Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE LIPINSKY Fox, J., concurs Berger, J., concurs in part and dissents in part

Announced May 7, 2020

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Timothy Charles Houser, appeals the district

court’s order denying his Crim. P. 35(c) motion for postconviction

relief. The postconviction court rejected Houser’s constitutional

arguments and his claims of ineffective assistance of counsel

without a hearing.

¶2 We affirm the postconviction court’s denial of Houser’s

constitutional arguments. We also affirm the portion of the

postconviction court’s order addressing Houser’s claim that his trial

counsel was ineffective for failing to raise novel arguments. We hold

that an attorney cannot be deemed ineffective solely because he or

she did not take positions unsupported or not “clearly

foreshadowed” by then-existing law. In addition, we affirm the

portion of the order holding that Houser is not entitled to a hearing

on his claim that his attorney was ineffective for failing to raise a

valid defense, because that claim fails as a matter of law. However,

we reverse the postconviction court’s denial of Houser’s claims that

his counsel was ineffective for not challenging the out-of-court

identification of Houser and the search warrant resting on such

identification, and not challenging the prosecution’s alleged

outrageous conduct in forcing his first attorney to withdraw. The

1 case is remanded to the postconviction court for a hearing on those

claims.

I. Background

¶3 Houser was convicted of patronizing a prostituted child in

violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old

A.J. testified at Houser’s trial that she earned money through

prostitution. She posted an advertisement on Craigslist in which

she identified herself as a twenty-year-old “playmate.” Houser

responded to A.J.’s posting. A.J. told police she went to Houser’s

“home in Douglas County where he paid her $240 to engage in

sexual acts with him.” People v. Houser, 2013 COA 11, ¶ 2, 337

P.3d 1238, 1243 (Houser I).

¶4 Houser was charged with patronizing a prostituted child.

Houser filed a pretrial notice of intent to assert an affirmative

defense under section 18-1-503.5, C.R.S. 2019, that Houser had

reasonably believed A.J. was over the age of eighteen. That statute

authorizes a reasonable mistake of age defense, although it does

not refer to the child prostitution statutes. The prosecution filed an

objection to the notice, arguing that section 18-7-407, C.R.S. 2019,

which expressly applies to the child prostitution statutes, precluded

2 Houser from raising such a defense. See § 18-7-407 (“In any

criminal prosecution under sections 18-7-402 to 18-7-407, it shall

be no defense that the defendant did not know the child’s age or

that he reasonably believed the child to be eighteen years of age or

older.”).

¶5 Following a hearing, the trial court found that section

18-7-407 bars defendants charged with patronizing a prostituted

child from presenting a reasonable mistake of age defense. The

court, therefore, prohibited Houser from arguing at trial that he

reasonably believed A.J. was at least eighteen years old.

¶6 A jury found Houser guilty of patronizing a prostituted child.

The trial court sentenced him to thirty days in jail, with ten days’

credit for time served, and sex offender intensive supervised

probation for an indeterminate term of ten years to life. Six years

later, after Houser failed to comply with the terms of his probation,

the trial court resentenced him to two years to life in the custody of

the Department of Corrections.

3 A. Houser’s Direct Appeal

¶7 Houser appealed his conviction. A division of this court

affirmed. Houser I, ¶ 1, 337 P.3d at 1243. Two of the holdings in

Houser I are relevant here.

¶8 First, the division affirmed the trial court’s ruling that Houser

was precluded from presenting a reasonable mistake of age defense.

Id. at ¶ 27, 337 P.3d at 1246. In comparing sections 18-1-503.5(1)

and 18-7-407, the Houser I division acknowledged that the former

“mandates that the court allow a reasonable belief defense when the

victim is at least fifteen years old, [while] the other expressly

prohibits such a defense.” Id. at ¶ 19, 337 P.3d at 1245. After

meticulously analyzing the legislative history of the two statutes,

the division determined that section 18-7-407 applies to the offense

of patronizing a prostituted child. Thus, defendants charged with

that offense cannot present a reasonable mistake of age defense, as

a matter of law. Id. at ¶¶ 18-27, 337 P.3d at 1245-46.

¶9 Second, the division declined to consider Houser’s

unpreserved argument that section 18-7-401(6), C.R.S. 2019, which

defines “prostitution by a child,” is unconstitutionally vague on its

face. Id. at ¶ 49, 337 P.3d at 1250. The division decided that

4 judicial economy did not “afford a basis” for departing from the

principle that a constitutional challenge may not be raised for the

first time on appeal. Id. at ¶¶ 28, 30, 49, 337 P.3d at 1246, 1247,

1250.

B. Houser’s Crim. P. 35(c) Motion

¶ 10 After the Houser I division affirmed his conviction, Houser filed

a Crim. P. 35(c) motion challenging the constitutionality of his

conviction and sentence, and alleging ineffective assistance of

counsel. The postconviction court denied Houser’s motion without

a hearing. It found that Houser I precluded Houser’s constitutional

arguments and, even if Houser could present such arguments, they

fail on the merits. It also held that Houser failed to establish

prejudice and deficient performance and, therefore, is not entitled to

a hearing on his ineffective assistance of counsel claims. This

appeal followed.

¶ 11 In his appeal, Houser largely reasserts the arguments he

presented in his Crim. P. 35(c) motion.

¶ 12 Houser raises four constitutional arguments: (1) the offense of

patronizing a prostituted child is unconstitutionally vague; (2)

section 18-7-401(6) violates Houser’s right to equal protection; (3)

5 section 18-7-407, which Houser I held precludes a defendant from

raising an affirmative defense of reasonable mistake of age in child

prostitution cases, violates Houser’s equal protection and due

process rights; and (4) section 18-1.3-1004(2)(a), C.R.S. 2019, the

Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is

unconstitutional as applied to Houser and, specifically, violates his

due process rights.

¶ 13 Further, Houser contends that his trial counsel was ineffective

in failing to (1) challenge the constitutionality of section 18-7-407;

(2) challenge the constitutionality of his sentence under SOLSA; (3)

argue that the offense of patronizing a prostituted child is void for

vagueness; (4) argue that Houser’s conviction under section

18-7-406(1) violates equal protection; (5) raise a valid defense; (6)

call a particular witness; and (7) challenge “the State’s outrageous

conduct.” Houser argues that the postconviction court erred in

denying him a hearing on the claims raised in his Crim. P. 35(c)

motion.

II. Houser’s Constitutional Claims

¶ 14 Before we address the merits of Houser’s constitutional

arguments, we first consider the People’s contention that they are

6 not properly before us. The People assert that, because Houser

raised only one constitutional argument in his direct appeal, we are

precluded from considering all of Houser’s constitutional claims

under Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) or, in the

alternative, under the doctrine of law of the case. We disagree that

Houser’s void for vagueness argument is not properly before us.

However, we agree with the People that we are precluded from

considering Houser’s other constitutional arguments under Crim. P.

35(c).

A. Although Houser’s Void for Vagueness Argument Is Properly Before Us, We Do Not Consider Houser’s Other Constitutional Arguments Under Crim. P. 35(c)

1. Crim. P. 35(c)(3)(VI) and Crim. P. 35(c)(3)(VII)

¶ 15 Crim. P. 35(c)(3)(VI) requires us to “deny any claim that was

raised and resolved in a prior appeal . . . .” We must also “deny any

claim that could have been presented in an appeal previously

brought or postconviction proceeding previously brought . . . .”

Crim. P. 35(c)(3)(VII); see Dunlap v. People, 173 P.3d 1054, 1062 n.4

(Colo. 2007).

¶ 16 As discussed above, Houser contended in his direct appeal

that the offense of patronizing a prostituted child is

7 unconstitutionally vague, although the division in Houser I declined

to consider the argument. Houser I, ¶¶ 28, 49, 337 P.3d at 1246,

1250. Houser’s void for vagueness argument, therefore, does not fit

within Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) because it was

raised, but not resolved, in Houser’s direct appeal. We therefore

address this argument on the merits. We do not, however, consider

Houser’s remaining constitutional arguments because Houser could

have raised them in his direct appeal but did not do so. See Crim.

P. 35(c)(3)(VII).

2. Law of the Case

¶ 17 “[T]he law of the case ‘is a rule of practice, based upon sound

policy that when an issue is once litigated and decided, that should

be the end of the matter.’” Verzuh v. Rouse, 660 P.2d 1301, 1303

(Colo. App. 1982) (quoting United States v. U.S. Smelting Ref. &

Mining Co., 339 U.S. 186, 198 (1950)). Houser argues that the law

of the case doctrine does not apply to his argument that section

18-7-406 is void for vagueness because the division in Houser I

“refused to address or resolve” the merits of that argument. We

agree. Because Houser’s void for vagueness argument was not

8 “litigated and decided” in Houser I, the law of the case doctrine does

not preclude us from addressing it.

B. The Offense of Patronizing a Prostituted Child Is Not Unconstitutionally Vague

¶ 18 We disagree with Houser’s argument that the patronizing a

prostituted child statute is unconstitutionally vague.

¶ 19 We review the constitutionality of a statute de novo. Dean v.

People, 2016 CO 14, ¶ 8, 366 P.3d 593, 596. A statute is not void

for vagueness so long as it “permits persons of ordinary intelligence

to distinguish between permissible and illegal conduct and provides

workable standards for those responsible for the enforcement and

application of the law.” People v. West, 724 P.2d 623, 626 (Colo.

1986).

¶ 20 A person commits the crime of “patronizing a prostituted

child” by performing with a child one of the acts included in the

definition of “prostitution by a child.” § 18-7-401(6); § 18-7-406(1).

“[P]rostitution by a child” is defined as

either a child performing or offering or agreeing to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any person not the child’s spouse in exchange for money or other thing of value or any person performing or offering or

9 agreeing to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any child not the person’s spouse in exchange for money or other thing of value.

§ 18-7-401(6).

¶ 21 Houser argues that, because the definition of “prostitution by

a child” includes certain actions performed by a child, but not by

the defendant, it is unclear how a “defendant can conform his

behavior to avoid criminal liability.” See § 18-7-401(6). For

example, he contends that a defendant could be found guilty of

patronizing a prostituted child merely because a child offered to

perform for the defendant one of the acts specified in section

18-7-401(6). Houser suggests that merely reading a child’s written

offer of prostitution, such as in a Craigslist posting, would be

sufficient to convict a defendant of patronizing a prostituted child.

¶ 22 But Houser’s reading of the statute is too broad. Houser was

not convicted of “prostitution by a child,” but of “patronizing a

prostituted child” under section 18-7-406(1)(a). Section

18-7-406(1)(a) requires that the defendant perform one of the

prohibited acts with a child. The plain language of the statute

10 makes clear that the actions of a child alone do not constitute an

offense under section 18-7-406(1)(a).

¶ 23 While we acknowledge that the language of section

18-7-406(1)(a) could be clearer, a statute “need not be drafted with

mathematical precision” to provide “fair warning of the proscribed

conduct.” People v. Becker, 759 P.2d 26, 31 (Colo. 1988). Thus, we

conclude that section 18-7-406(1) is not void for vagueness.

¶ 24 Houser also tacks on a cursory as-applied challenge at the

conclusion of his vagueness argument, suggesting that the use of

the word “offer[]” in section 18-7-401(6) “destroyed [his] defense”

because “the [prosecution] was able to argue Houser was guilty

regardless of whether [he had] sex” with A.J. We do not address

this argument because Houser presented it as a bald legal

proposition. Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19

(Colo. App. 2010) (“We will not consider a bald legal proposition

presented without argument or development.”). Further, we do not

consider Houser’s as-applied challenge because he did not present

such argument in his original Crim. P. 35(c) motion. See People v.

Salinas, 55 P.3d 268, 270 (Colo. App. 2002).

11 ¶ 25 For these reasons, we conclude that Houser is not entitled to a

hearing on his void for vagueness claim based on the record and the

plain language of the statute. Thus, we affirm the postconviction

court’s summary denial of this claim.

III. Houser’s Ineffective Assistance of Counsel Claims

¶ 26 We next address whether Houser is entitled to a hearing on his

ineffective assistance of counsel claims. See Crim. P. 35(c)(3)(VIII)

(requiring that we “shall not deny a postconviction claim of

ineffective assistance of trial counsel on the ground that all or part

of the claim could have been raised on direct appeal”). We conclude

that Houser is entitled to a hearing on the merits of some, but not

all, of his ineffective assistance of counsel claims.

A. Applicable Law

1. Ineffective Assistance of Counsel Claims

¶ 27 A criminal defendant is constitutionally entitled to the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687

(1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). “The

purpose of this constitutional guarantee is to ensure the accused a

level of assistance calculated to produce a fair and just result in a

12 criminal prosecution.” People v. Garcia, 815 P.2d 937, 940 (Colo.

1991).

¶ 28 A defendant’s conviction may be reversed based on a claim of

ineffectiveness of counsel, but only if the defendant satisfies both

prongs of the test the United States Supreme Court adopted in

Strickland. Davis, 871 P.2d at 772. Under Strickland, a defendant

must demonstrate that (1) counsel’s performance was outside the

wide range of professionally competent assistance and (2) the

defendant was prejudiced by counsel’s substandard legal work.

Strickland, 466 U.S. at 687.

¶ 29 “Because a presumption of validity attaches to a judgment of

conviction, the burden is on the defendant to prove both elements

by a preponderance of the evidence.” People v. McDowell, 219 P.3d

332, 339 (Colo. App. 2009); see People v. Naranjo, 840 P.2d 319,

325 (Colo. 1992).

2. Counsel’s Failure to Raise a Novel Argument Does Not Give Rise to an Ineffective Assistance of Counsel Claim

¶ 30 A lawyer does not perform deficiently by “failing to raise novel

arguments that are unsupported by then-existing precedent.”

United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019); see

13 Snider v. United States, 908 F.3d 183, 192 (6th Cir. 2018) (“We have

repeatedly held that counsel is not ineffective for failing to predict

developments in the law, unless they were clearly foreshadowed by

existing decisions.”); see also Shaw v. Wilson, 721 F.3d 908, 916-17

(7th Cir. 2013). “Nor does counsel fall below Strickland’s standard

of reasonableness by failing to anticipate changes in the law, or to

argue for an extension of precedent.” Morris, 917 F.3d at 823.

Even if a “wholly novel claim” may have had merit in hindsight,

counsel’s failure to raise such a claim does not render his

performance constitutionally ineffective. Anderson v. United States,

393 F.3d 749, 754 (8th Cir. 2005).

¶ 31 Courts throughout the country have adopted this rule.

“[N]umerous state and federal courts have concluded that counsel’s

failure to advance novel legal theories or arguments does not

constitute ineffective performance.” Ledbetter v. Comm’r of Corr.,

880 A.2d 160, 167 (Conn. 2005). This does not mean that an

attorney cannot be ineffective because he or she did not present an

argument lacking decisive precedent. “Even where the law is

unsettled, . . . counsel must raise a material objection or argument

if ‘there is relevant authority strongly suggesting’ that it is

14 warranted.” Morris, 917 F.3d at 824 (quoting United States v.

Carthorne, 878 F.3d 458, 466 (4th Cir. 2017)). “While defense

attorneys need not predict every new development in the law, ‘they

are obliged to make [ ] argument[s] that [are] sufficiently

foreshadowed in existing case law.’” Id. (quoting Shaw, 721 F.3d at

916-17).

¶ 32 Thus, an attorney performs effectively by choosing “to

maneuver within the existing law, declining to present untested or

rejected legal theories.” State v. McNeill, 700 N.E.2d 596, 607 (Ohio

1998); see Bailey v. State, 472 N.E.2d 1260, 1265 (Ind. 1985)

(holding that counsel is not ineffective if he or she fails to “change

then-existing law”); see also Engle v. Isaac, 456 U.S. 107, 134

(1982) (“[T]he Constitution guarantees criminal defendants only a

fair trial and a competent attorney. It does not insure that defense

counsel will recognize and raise every conceivable constitutional

claim.”).

¶ 33 The partial dissent asserts that we are making new bright line

rule in holding that an attorney cannot be deemed ineffective for not

presenting new theories or arguments. There is nothing novel

about our holding, however. Our approach reflects the well-

15 established principle that, to prevail on a claim of ineffective

assistance of counsel, a defendant must show that his or her

counsel’s legal work fell outside the “wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690. Indeed, no

reported Colorado decision has held that an attorney was ineffective

because he or she did not attempt to break new legal ground, and

the partial dissent cites to no Colorado authority in support of its

expansive view of ineffectiveness.

¶ 34 The partial dissent asserts that

[i]f any of Houser’s constitutional claims that underlie his ineffective assistance of counsel claims have merit, he should be given an opportunity to convince a district court judge, based on evidence, including expert testimony, that the failure to raise those meritorious claims constituted deficient performance under the first prong of Strickland.

Infra ¶ 93. But under this reasoning, a defendant would be entitled

to a hearing on any Crim. P. 35(c) claim for ineffective assistance

merely by arguing that counsel failed to raise a constitutional

argument with any potential merit. This would be true even where

the claim rests on arguments that would have been directly contrary

16 to the law at the time of trial and where counsel raised a reasonable

alternative argument.

¶ 35 Strickland cautioned that “[i]t is all too tempting for a

defendant to second-guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that

a particular act or omission of counsel was unreasonable.”

Strickland, 466 U.S. at 689. The Court noted that “[i]ntensive

scrutiny of counsel . . . could dampen the ardor and impair the

independence of defense counsel, discourage the acceptance of

assigned cases, and undermine the trust between attorney and

client.” Id. at 690. Thus, “[c]ourts should strive to ensure that

ineffectiveness claims not become so burdensome to defense

counsel that the entire criminal justice system suffers as a result.”

Id. at 697.

¶ 36 The partial dissent’s interpretation of ineffectiveness would

also have significant repercussions for every attorney in this state,

as it would lower the bar for proving professional negligence. See

Rantz v. Kaufman, 109 P.3d 132, 139 (Colo. 2005) (explaining that

the “inquiry undertaken” in cases involving ineffective assistance

17 and cases involving legal malpractice “is identical and focuses on

what ordinary members of the legal profession would have done at

the time the action was taken”). If a criminal defense attorney can

be deemed ineffective for not urging a court to adopt a new

constitutional rule, then an attorney could be found professionally

negligent for making the same judgment call. Finding that an

attorney commits malpractice by not seeking this type of change in

the law would flood the courts with new professional negligence

lawsuits, as well as novel claims filed by attorneys practicing

defensive lawyering.

3. Denials of Crim. P. 35(c) Motions Without a Hearing

¶ 37 A defendant is entitled to a hearing on the merits of a Crim. P.

35 motion if he or she “assert[ed] facts that if true would provide a

basis for relief.” White v. Denver Dist. Court, 766 P.2d 632, 635

(Colo. 1988). A court, therefore, may only deny a Crim. P. 35(c)

motion without a hearing when “the motion and the files and record

of the case show to the satisfaction of the court that the defendant

is not entitled to relief.” Crim. P. 35(c)(3)(IV); see People v. Thomas,

867 P.2d 880, 890-91 (Colo. 1994). “Summary denial of a

postconviction relief motion is also appropriate if the claims raise

18 only an issue of law, or if the allegations, even if true, do not

provide a basis for relief.” People v. Venzor, 121 P.3d 260, 262

(Colo. App. 2005).

¶ 38 Thus, “[t]he denial of a claim of ineffective assistance of

counsel without a hearing is justified if, but only if, the existing

record establishes that the defendant’s allegations, even if proven

true, would fail to establish either constitutionally deficient

performance or prejudice.” People v. Chavez-Torres, 2016 COA

169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843;

see People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996).

¶ 39 “We review de novo a postconviction court’s denial of a Crim.

P. 35(c) motion without a hearing.” People v. McGlaughlin, 2018

COA 114, ¶ 25, 428 P.3d 691, 697.

B. The Failure to Raise Novel Legal Arguments Did Not Render Houser’s Counsel Ineffective

¶ 40 Houser contends that his counsel was ineffective by failing to

raise four arguments that were not established by precedent at the

time: the unconstitutionality of section 18-7-407, the

unconstitutionality of Houser’s sentence under SOLSA, section

19 18-7-406(1) is void for vagueness, and section 18-7-406(1) violates

equal protection.

¶ 41 We disagree and affirm the postconviction court’s denial of

these claims without a hearing because, as a matter of law,

Houser’s counsel was not ineffective for failing to raise novel

arguments.

1. Failure to Challenge the Constitutionality of Section 18-7-407

¶ 42 Houser argues that his counsel was ineffective because he

failed to challenge the constitutionality of section 18-7-407, which

precludes a defendant from raising a mistake of age defense in

cases involving offenses under the child prostitution statutes. We

disagree.

¶ 43 Houser does not cite, and, with one exception, we cannot find,

any reported case involving a challenge to the constitutionality of

section 18-7-407. See People v. Maloy, 2020 COA 71, ¶ 44, ___ P.3d

___, ___ (rejecting challenge to the constitutionality of section

18-7-407).

¶ 44 Significantly, at the time of Houser’s trial, no Colorado case

had yet clarified whether section 18-7-407 or section 18-1-503.5(1),

the more general statute allowing for a reasonable mistake of age

20 defense, applied to the offense of patronizing a prostituted child.

The issue was not resolved until Houser’s direct appeal. See

Houser I, ¶ 14, 337 P.3d at 1244 (concluding, “in a matter of first

impression, that section 18-7-407 prevents a defendant from

offering a reasonable belief in age defense to a charge of patronizing

a prostituted child”) (emphasis added); see also Maloy, ¶ 40, ___

P.3d at ___ (citing to Houser I for the proposition that, under

sections 18-1-503.5(1) and 18-7-407, the affirmative defense of

reasonable mistake of age is not available to a defendant charged

with patronizing a prostituted child).

¶ 45 At the pretrial hearing on this issue, Houser’s counsel argued

that section 18-1-503.5(1) applied to the offense of patronizing a

prostituted child and that Houser should therefore be allowed to

argue at trial that he reasonably believed A.J. was an adult. In

support of this argument, counsel cited to the legislative history of

each statute and presented a number of other arguments

supporting his position. Houser’s attorney did not challenge the

constitutionality of section 18-7-407, however. The prosecution

countered that section 18-7-407 applied based on rules of statutory

21 construction because it was more specific than section

18-1-503.5(1).

¶ 46 The postconviction court, which had also presided over the

hearing, said that, although it had ultimately concluded that

18-7-407 was “better law,” the argument of Houser’s counsel had

been “skillful and rational.”

¶ 47 Houser urges us to conclude that counsel’s failure to challenge

the constitutionality of section 18-7-407 rendered his performance

ineffective. Regardless of the persuasiveness of Houser’s

constitutional arguments, the issue before us is whether counsel’s

choice of argument rendered his performance deficient. Anderson,

393 F.3d at 754 (explaining that the question is not whether

counsel’s decision to choose an argument was “intelligent or

effective,” but whether the decision was an unreasonable one that

only an incompetent attorney would make); see also Strickland, 466

U.S. at 690 (“[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually

unchallengeable . . . .”). Because a challenge to the

constitutionality of section 18-7-407 would have been novel at the

time, Houser’s counsel was not ineffective by not presenting such a

22 challenge and choosing, instead, to argue that the statute did not

apply to Houser.

¶ 48 We hold that, regardless of the facts Houser could present at a

Crim. P. 35(c) hearing, he could not prove that his counsel’s

performance was deficient on the grounds that the attorney did not

mount a novel constitutional challenge to section 18-7-407 when

counsel put forth a “skillful and rational” argument that the statute

did not apply. If successful, the argument would have allowed

Houser to raise the defense of reasonable mistake of age. Thus, we

affirm the postconviction court’s decision to deny Houser a hearing

on his claim that his counsel was ineffective for failing to challenge

the constitutionality of section 18-7-407.

2. Failure to Challenge the Constitutionality of Houser’s Sentence Under SOLSA

¶ 49 Houser contends that his counsel’s failure to challenge the

constitutionality of SOLSA as applied to Houser rendered counsel’s

performance deficient. We disagree.

¶ 50 As Houser acknowledges, divisions of this court — including

the divisions that decided the issue before his trial — have rejected

every facial challenge to the constitutionality of SOLSA. See, e.g.,

23 People v. Knobee, 2020 COA 7, ¶ 63, ___ P.3d ___, ___; People v.

Sabell, 2018 COA 85, ¶ 47, 452 P.3d 91, 100; People v. Relaford,

2016 COA 99, ¶ 72, 409 P.3d 490, 501; People v. Torrez, 2013 COA

37, ¶ 88, 316 P.3d 25, 40; People v. Collins, 250 P.3d 668, 679

(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.

2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). Until

April 2020, divisions of this court had also rejected every as-applied

challenge to the constitutionality of the statute. See Maloy, ¶ 35,

___ P.3d at ___ (ruling in favor of the defendant’s as-applied equal

protection challenge to a section of SOLSA for the first time in a

reported case); see also Sabell, ¶ 45, 452 P.3d at 100 (rejecting an

as-applied constitutional challenge to SOLSA because the division

was not persuaded to depart from the numerous decisions of

previous divisions of this court affirming the constitutionality of

SOLSA); People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003)

(holding that SOLSA was not unconstitutional as applied to the

defendant); cf. People in Interest of T.B., 2019 COA 89, ¶ 1, ___ P.3d

___, ___ (holding that the automatic lifetime registration

requirement contained in the Colorado Sex Offender Registration

24 Act is unconstitutional as applied to juveniles) (cert. granted Feb. 3,

2020).

¶ 51 Rather than raise an argument unsupported by Colorado

precedent, Houser’s counsel asserted that Houser was not subject

to SOLSA because he reasonably believed A.J. was an adult, asked

the court to consider that A.J. had misled Houser about her age,

noted that the legislature did not intend that SOLSA punish

someone like Houser who reasonably believed he was patronizing

an adult prostitute, and argued that the sex offender treatment

required under SOLSA was unnecessary based on Houser’s

psychological evaluations.

¶ 52 Because the Colorado appellate courts had universally rejected

constitutional challenges to SOLSA at the time of Houser’s trial, he

cannot establish he was prejudiced by counsel’s failure to raise

such a challenge. The record therefore establishes that Houser

cannot make a successful ineffective assistance of counsel claim

based on his counsel’s failure to attack the constitutionality of

SOLSA. See Chavez-Torres, ¶ 31, 410 P.3d at 696.

25 ¶ 53 We therefore affirm the postconviction court’s denial of

Houser’s request for a hearing on his claim that his counsel was

ineffective for failing to challenge the constitutionality of SOLSA.

3. Failing to Argue that Section 18-7-406(1) Is Void for Vagueness

¶ 54 Houser contends that his counsel was ineffective for failing to

argue that the offense of patronizing a prostituted child is void for

vagueness. We disagree.

¶ 55 As discussed in Part II.B above, we conclude, as a matter of

first impression, that the offense of patronizing a prostituted child

under section 18-7-406(1) is not unconstitutionally vague.

Houser’s counsel, therefore, was not deficient for failing to raise this

novel argument. See Morris, 917 F.3d at 823. Moreover, because

we conclude that section 18-7-406(1) is not unconstitutionally

vague, Houser cannot demonstrate a reasonable probability that,

but for his counsel’s failure to argue vagueness, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

¶ 56 Thus, we affirm the postconviction court’s denial of Houser’s

request for a hearing on his claim that his counsel was ineffective

for failing to attack section 18-7-406(1) as unconstitutionally vague.

26 4. Failure to Argue that Houser’s Conviction Under Section 18-7-406(1) Violates Equal Protection

¶ 57 Houser argues that his counsel was ineffective because he did

not present an equal protection argument. Houser asserts that he

was denied equal protection because, even though his conduct fell

within the meaning of “soliciting for child prostitution” under

section 18-7-402, C.R.S. 2019, he was charged under section

18-7-406(1) for patronizing a prostituted child, which carries a

harsher penalty. Houser alleges that his counsel “recognized the

offer and agreement language in the ‘prostitution by a child’

definition was problematic. Yet, his counsel didn’t try to litigate the

constitutionality of this language.” But the issue is not whether

such an equal protection argument could have merit. It is whether

counsel could be found ineffective for choosing not to present the

argument. We disagree with Houser that his counsel’s decision

rendered him ineffective.

¶ 58 The partial dissent asserts that Houser is nonetheless entitled

to a hearing on his claim that his counsel was ineffective for not

launching a constitutional attack on section 18-7-406(1), even

though no such attack had succeeded in any reported decision at

27 the time of Houser’s trial. The partial dissent relies on the division’s

determination in Maloy that the defendant was denied equal

protection because, as applied to the defendant’s conduct,

patronizing a prostituted child proscribed the same conduct as

pandering of a child and inducement of child prostitution, even

though the latter offenses carry lighter sentences than the former

offense. Id. (The division in Maloy also concluded that, based on

the facts of the case, solicitation does not proscribe the same

conduct as patronizing a prostituted child.)

¶ 59 Had Maloy predated Houser’s trial and Houser’s counsel

nevertheless failed to raise an as-applied equal protection challenge

to 18-7-406(1)(a), Houser’s ineffective assistance claim may well

have warranted a hearing to determine whether Maloy sufficiently

foreshadowed a change in the law that would have impacted the

outcome of Houser’s case. But the division did not decide Maloy

until more than ten years after Houser’s trial.

¶ 60 A defense attorney is not ineffective because he or she did not

raise an untested constitutional challenge to a criminal charge that

is not clearly foreshadowed by then-existing case law. See

Anderson, 393 F.3d at 754; see also Snider, 908 F.3d at 192.

28 ¶ 61 Houser does not point us to any foreshadowing in Colorado

case law that would have required his counsel to argue that section

18-7-406(1) violates equal protection. Instead, Houser merely cites

to cases holding that unrelated statutes violate equal protection.

For example, Houser relies on People v. Marcy, 628 P.2d 69, 71-72

(Colo. 1981), in which the Colorado Supreme Court held that two

murder statutes were “not sufficiently distinguishable . . . to

warrant the substantial differential in penalty authorized by the

statutory scheme.” Houser therefore is not entitled to relief for

ineffective assistance of counsel because his counsel did not

present a novel equal protection argument not “clearly

foreshadowed” under existing law. See Venzor, 121 P.3d at 262.

¶ 62 Thus, we affirm the postconviction court’s denial without a

hearing of Houser’s ineffective assistance claim based on his

counsel’s failure to present an equal protection argument.

C. Houser Is Not Entitled to a Hearing on His Claim that His Counsel Failed to Raise a Valid Defense

¶ 63 Houser further contends that he is entitled to a hearing on his

claim that his counsel was ineffective by offering a theory of defense

that admitted Houser’s guilt without his consent. Houser argues

29 that this tactic demonstrated that his counsel was ignorant of

sections 18-7-406(1)(a) and 18-7-401(6). We disagree and conclude

that his counsel’s theory of defense did not, as a matter of law,

admit Houser’s guilt. See Venzor, 121 P.3d at 262 (“Summary

denial of a postconviction relief motion is . . . appropriate if the

claims raise only an issue of law . . . .”).

¶ 64 Houser’s counsel argued that, although Houser arranged for

A.J. to visit his home, they did not have sex because A.J. refused to

produce an ID after Houser demanded that she prove she was at

least eighteen. According to this theory, Houser was prepared to

pay A.J. for sex, but only if she first convinced him that she was at

least eighteen. Defense counsel admitted that Houser agreed to

“pay [A.J.] for her time,” but argued Houser did not pay her for sex.

Instead, Houser’s counsel asserted that Houser paid A.J. because

he knew “her pimp [was] in the car” and he feared for his safety if

she walked out his door without cash in hand.

¶ 65 At the time of Houser’s trial, few Colorado appellate decisions

addressed the offense of patronizing a prostituted child. See People

v. Madden, 111 P.3d 452, 457 (Colo. 2005); People v. Holland, 708

P.2d 119, 119 n.2 (Colo. 1985). And only one of the cases —

30 Madden — analyzed section 18-7-406(1)(a). See Madden, 111 P.3d

at 457.

¶ 66 In Madden, the court reversed a defendant’s conviction for

attempted patronizing of a prostituted child because “there was no

evidence presented at trial that [the defendant] attempted to give

anything of value to [the child] or to any other person in exchange

for sex [with the child].” Id. at 460. The court held that

“‘patronizing a prostituted child’ requires an exchange of something

of value” for “sex with a child.” Id. at 459.

¶ 67 Under the reasoning of Madden, the jury could have acquitted

Houser if it found he had not paid A.J. for sex. While a division of

this court later concluded in Houser I that a “person need not

perform a sexual act to be guilty of patronizing a prostituted child,”

the case law at the time of Houser’s trial permitted an argument

that a defendant could not be found liable for patronizing a

prostituted child if he did not perform one of the prohibited acts

with her. Houser I, ¶ 69, 337 P.3d at 1253. Counsel’s defense,

although unpersuasive to the jury, did not amount to a guilty plea

because it gave the jury an avenue under the existing case law to

find Houser not guilty.

31 ¶ 68 Thus, we deny Houser’s claim that he is entitled to a hearing

on his claim that his counsel was ineffective for not raising a valid

defense. See Crim. P. 35(c)(3)(IV); see also Thomas, 867 P.2d at

890-91.

D. Houser Is Entitled to a Hearing on the Merits of His Remaining Claims

1. Failure to Challenge Out-of-Court Identification

¶ 69 Houser argues that he is entitled to a hearing on his claim

that his trial counsel was ineffective for failing to sufficiently

challenge A.J.’s out-of-court identification of him and to file a

motion to suppress the search warrant for his home premised on

that identification. We agree.

¶ 70 Houser alleges that, instead of conducting a photo lineup,

Mike Ryan, a Denver Police Department detective, drove with A.J. to

Houser’s residence, improperly showed her only a single photo, and

asked, “[I]s this the guy?” The affidavit filed in support of the

warrant used to search Houser’s home bolsters Houser’s challenge

to the photo identification and search of his home. It states that

Ryan “obtained a photo of [Houser], which he showed to [A.J.].” But

it can also be interpreted to support the prosecution’s assertion

32 that Ryan later told another officer, months after the search, that

he “showed A.J. six photos, including [Houser’s] Colorado DMV

photo,” one at a time.

¶ 71 Houser’s first attorney filed a motion to suppress A.J.’s out-of-

court identification as impermissibly suggestive, but later requested

that the motion “be tabled for the time being until Ryan shows up

to testify.” Houser’s second attorney withdrew the motion to

suppress during a hearing on the issue and explained to the court

that, after discussing the photo identification with the prosecutor,

he was satisfied — based on the prosecutor’s reputation — there

were no issues related to the lineup.

¶ 72 Houser argues he was prejudiced because his counsel never

called Ryan to testify whether he showed A.J. a single photo —

which may have been impermissibly suggestive and could have

invalidated the warrant used to search his home — or six

photographs, as the prosecution contended.

¶ 73 Because this allegation, if true, could support a claim that his

counsel’s conduct was deficient for failing to challenge a potentially

improper out-of-court identification based upon a prosecutor’s

reputation, Houser is entitled to a hearing on the merits of this

33 claim. See White, 766 P.2d at 635. Thus, we remand this claim to

the postconviction court for a hearing on the merits.

2. Failure to Challenge the State’s Alleged Outrageous Conduct

¶ 74 Houser contends that he is entitled to a hearing on his claim

that his counsel was ineffective for failing to challenge the

prosecution’s alleged “outrageous conduct.” Houser argues that the

prosecution “committed outrageous conduct by pretending to be the

victim in the case, intruding on Houser’s attorney[-]client

relationship . . . and interfering with Houser’s right to counsel.” He

alleges, and the record reflects, that the lead police officer in the

case, Dea Aragon, investigated Charles Leidner, Houser’s first

attorney, for alleged witness intimidation of A.J.

¶ 75 The People contend that Aragon initiated the investigation

after A.J.’s mother contacted the Douglas County Sheriff’s Office to

report a threatening call from Leidner and his investigator, in which

the men told her that, if A.J. testified, they would “drag [her] over

the coals, embarrass her, and eat her alive.” The men also allegedly

threatened to charge A.J. and her mother with federal tax evasion.

¶ 76 Following Aragon’s investigation, a special prosecutor filed a

motion to disqualify Leidner from further representation of Houser.

34 Houser, then represented by conflict-free counsel, requested that

Leidner remain his attorney. Although the court denied the

prosecutor’s motion to disqualify Leidner, Leidner later moved to

withdraw as Houser’s counsel. The trial court granted the motion

and Scott Reisch succeeded Leidner as Houser’s lawyer.

¶ 77 Houser argues he was prejudiced because Reisch failed to

argue that the prosecution’s conduct in allegedly pressuring Leidner

to withdraw from the case was outrageous. Houser asserts that,

“[h]ad Reisch successfully litigated this claim, it could have resulted

in the dismissal of [the] charge[] against Houser” because the

remedy for a prosecutor’s outrageous conduct is dismissal of the

charges. See United States v. Russell, 411 U.S. 423, 431 (1973).

The postconviction court denied Houser’s claim because it

concluded that the prosecution’s conduct was not outrageous.

¶ 78 The proper question, however, is whether Houser’s allegation,

if true, would provide a basis for an ineffective assistance claim. We

conclude it would and, therefore, remand the claim to the

postconviction court for a hearing on the merits.

35 IV. Conclusion

¶ 79 The postconviction court’s denial of Houser’s Crim. P. 35(c)

motion is affirmed except as to Houser’s right to a hearing on his

claims that his counsel was ineffective for (a) not challenging A.J.’s

out-of-court identification of Houser and the search warrant resting

on such identification and (b) not challenging the prosecution’s

alleged outrageous conduct. The case is remanded to the

postconviction court for a hearing on those claims.

JUDGE FOX concurs.

JUDGE BERGER concurs in part and dissents in part.

36 JUDGE BERGER, concurring in part and dissenting in part.

¶ 80 This is the majority’s central holding: “We hold that an

attorney cannot be deemed ineffective solely because he or she did

not take positions unsupported or not ‘clearly foreshadowed’ by

then-existing law.” Supra ¶ 2. This new bright line rule is not

consistent with Crim. P. 35(c). Unless reversed by the supreme

court, this new rule will have long-lasting consequences that are at

odds with the language of Crim. P. 35(c), the beneficent purposes

underlying that rule, and the bedrock constitutional guarantee of

reasonably effective assistance of counsel.

I. Postconviction Claims

¶ 81 In his postconviction motion and on this appeal, Houser

claims that his counsel was ineffective for failing to raise four

constitutional arguments: (1) his conviction violated his equal

protection rights; (2) his conviction should be vacated because the

patronizing a prostituted child statute is unconstitutionally vague;

(3) the Colorado Sex Offender Lifetime Supervision Act of 1998

(SOLSA) and section 18-7-407, C.R.S. 2019, as applied to him,

violated his substantive due process rights; and (4) his sentence

under SOLSA violated his rights under the Eighth Amendment and

37 article II, section 20 of the Colorado Constitution.1 Although the

majority grants limited relief to Houser and remands for an

evidentiary hearing on certain other ineffective assistance claims, it

rejects, without a hearing and as a matter of law, every one of the

claims described above.

¶ 82 If any one of the constitutional claims underpinning his

ineffective assistance of counsel claims fails, the related ineffective

assistance claim necessarily fails as well. In that event, it would be

impossible to satisfy the prejudice requirement under Strickland v.

Washington, 466 U.S. 668 (1984).

¶ 83 But if any of Houser’s underlying constitutional claims are

meritorious, then there is a reasonable probability that, but for

counsel’s failure to raise them, the outcome of the trial would have

been different. Strickland, 466 U.S. at 694-95. Thus, if any of

Houser’s underlying constitutional claims would have succeeded,

he must be given the opportunity, at an evidentiary hearing, to

1 Houser also advances other claims, including direct constitutional claims. I agree with the majority that all but one of the direct constitutional claims are successive because they could have been brought on direct appeal. Crim. P. 35(c)(3)(VII). I also agree with the majority’s disposition of those claims not addressed in this dissent.

38 prove that his counsel’s performance was deficient. Instead, the

majority’s newly created rule bars all of these claims.

II. The Majority’s New Rule Regarding Constitutional Claims is Inconsistent with Existing Law, Unworkable, and Unwarranted

¶ 84 The majority’s new rule cuts directly against the express

language of Crim. P. 35(c)(2)(I), which states that “every person

convicted of a crime is entitled as a matter of right to make

application for postconviction review upon the grounds . . . [t]hat

the conviction was obtained or sentence imposed in violation of the

Constitution or laws of the United States or the constitution or laws

of this state.”

¶ 85 Postconviction remedies are designed “to prevent

constitutional injustice.” Edwards v. People, 129 P.3d 977, 982

(Colo. 2006) (quoting People v. Rodriguez, 914 P.2d 230, 252 (Colo.

1996)). A rule that would bar consideration of the merits of

Houser’s ineffective assistance claims is inconsistent with the

broad, remedial purposes of Crim. P. 35(c).

¶ 86 It is further inconsistent with the Sixth Amendment’s

guarantee to criminal defendants of reasonably effective assistance

of counsel. U.S. Const. amend. VI. A defendant is not entitled to

39 the best criminal lawyer in a given jurisdiction; a defendant is

entitled to the “reasonably effective assistance” of counsel.

Strickland, 466 U.S. at 687. From the established proposition that

a defendant is entitled only to reasonably effective counsel, the

majority reasons that in every case a lawyer’s failure to raise claims

that have not been accepted or “clearly foreshadowed” in that

jurisdiction (or in a controlling jurisdiction) can never constitute

ineffective assistance. While the majority’s insistence on not raising

the constitutionally required level of performance may help courts

address frivolous claims more efficiently, the cure is worse than the

disease.

¶ 87 First, and contrary to the majority opinion, it is entirely

conceivable that the failure to raise a meritorious constitutional

claim could be objectively unreasonable, even if such claim had not

been previously road-mapped for counsel in a controlling, published

decision. The determination of whether counsel’s failure to raise

such a claim was reasonable “present[s] mixed questions of law and

fact.” Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). And the

Colorado Supreme Court has recognized that appellate courts will

rarely be in the position to decide such inherently factual questions.

40 Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). While sometimes

the trial record will clearly demonstrate lack of prejudice, “[u]nless

the issue was expressly litigated . . . , it is far less likely that a trial

record will demonstrate that potentially prejudicial acts or

omissions of counsel were not only strategic choices but were ones

that were reasonable in light of the law and facts.” Id. Thus, we

cannot reject such inherently factual claims as a matter of law.

¶ 88 Second, an allegation of ineffective assistance premised on

counsel’s failure to raise a constitutional attack on the conviction

does not without more (actually, much more) establish ineffective

assistance. The majority states that anything less than its

categorical prohibition would result in a situation in which “a

defendant would be entitled to a hearing on any Crim. P. 35(c) claim

for ineffective assistance merely by arguing that counsel failed to

raise a constitutional argument with any potential merit.” Supra

¶ 34. But that is not the case.

¶ 89 In order to be entitled to a hearing, the defendant must first

establish that the underlying constitutional claim is meritorious

and that, but for counsel’s failure to raise it, the outcome of the

proceeding would have been different. Strickland, 466 U.S. at

41 694-95. If a controlling court such as the United States Supreme

Court or the Colorado Supreme Court has not accepted the

constitutional theory, the task is even more difficult, and in the vast

majority of cases, the claim will fail. But the fact that the burden is

daunting, and that most such challenges will fail for any number of

reasons, is not a warrant for creating, as the majority has done, a

rule that prohibits, as a matter of law, all such challenges.

¶ 90 Once the defendant has established the merits of the

underlying constitutional claim, then the defendant must meet the

high bar of establishing that counsel was deficient in failing to raise

that claim. Id. at 687-91. As discussed above, this determination

is properly the subject of a hearing.

¶ 91 The majority contends that this approach would “lower the bar

for proving professional negligence.” Supra ¶ 36. Apart from the

fact that this is simply irrelevant to the question of whether Houser

received effective assistance of counsel, it is untrue. Even when the

defendant has established the merits of the underlying claim and a

reasonable probability that the failure to raise the claim affected the

outcome of the proceedings, the defendant must still establish, as

42 always, that the failure to raise such claim “fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688.

¶ 92 To reach its overbroad holding, the majority relies on non-

controlling cases from other jurisdictions purportedly holding that a

“lawyer does not perform deficiently by ‘failing to raise novel

arguments that are unsupported by then-existing precedent.’”

Supra ¶ 30 (quoting United States v. Morris, 917 F.3d 818, 823 (4th

Cir. 2019)). But unlike the majority, many of these jurisdictions

have also recognized the limits of such a broad rule and the

nuances associated with these ineffective assistance challenges.

For example, in Morris, the court stated that “counsel sometimes

will be required to make arguments ‘even in the absence of decisive

precedent.’” Morris, 917 F.3d at 823-24 (quoting United States v.

Carthorne, 878 F.3d 458, 465-66 (4th Cir. 2017)). Indeed, unlike

the majority, the Seventh Circuit has recognized that a lack of

precedent supporting a defendant’s ineffective assistance claim is

“only half the picture,” and that a “dearth” of precedent should have

indicated to defense counsel that the facts and circumstances of

that case were “unusual” and distinguishable from existing case

43 law. Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013)

(emphasis added).

¶ 93 If any of Houser’s constitutional claims that underlie his

ineffective assistance of counsel claims have merit, he should be

given an opportunity to convince a district court judge, based on

evidence, including expert testimony, that the failure to raise those

meritorious claims constituted deficient performance under the first

prong of Strickland.

¶ 94 I now proceed to analyze the constitutional claims that Houser

claims should have been advanced on his behalf but were not.2

III. Equal Protection

¶ 95 Houser claims that he was deprived of equal protection of the

law when he was punished for violating the statute that prohibits

patronizing a child prostitute when that same conduct is also

criminalized by another statute that carries a much lower penalty.

2 Because the constitutional questions that are determinative of whether Houser can prove prejudice under the second prong of Strickland v. Washington, 466 U.S. 668 (1984), are questions of law, there is no reason to remand to the postconviction court to resolve them. This court stands in as good a position as the postconviction court in that respect.

44 ¶ 96 This is not a novel constitutional claim. The Colorado

Supreme Court has repeatedly held that “Colorado’s guarantee of

equal protection is violated where two criminal statutes proscribe

identical conduct, yet one punishes that conduct more harshly.”

Dean v. People, 2016 CO 14, ¶ 14.

¶ 97 More specifically, Houser argues that his conviction violates

his equal protection rights under the Colorado Constitution because

the patronizing statute criminalizes the same conduct as the

soliciting a child prostitute statute, while imposing a harsher

penalty.3

¶ 98 The statutes, however, differ in a key respect. Patronizing

requires that the child prostitute actually perform, offer, or agree to

perform a sex act in exchange for money. § 18-7-406(1)(a), C.R.S.

2019; see § 18-7-401(6), (7), C.R.S. 2019. Soliciting does not. § 18-

3Unlike the United States Constitution, the Colorado Constitution contains no express equal protection clause, but the Colorado Supreme Court has construed the due process clause of the Colorado Constitution to imply a similar guarantee. Dean v. People, 2016 CO 14, ¶ 11. Colorado courts have construed the equal protection guarantees under the Colorado Constitution more broadly than those available under the United States Constitution. People v. Stewart, 55 P.3d 107, 114 (Colo. 2002) (citing United States v. Batchelder, 442 U.S. 114 (1979)).

45 7-402(1)(a), C.R.S. 2019. Thus, a defendant is punished more

severely under the patronizing statute for successfully inducing the

child to respond to an offer for money in exchange for sex.4 “The

general assembly may establish more severe penalties for acts that

it believes have graver consequences, even if the differences are only

a matter of degree.” People v. Stewart, 55 P.3d 107, 114-15 (Colo.

2002). Accordingly, I would reject this specific claim.

¶ 99 But, as analyzed in the recent case of People v. Maloy, 2020

COA 71, other child prostitution statutes prohibit the same conduct

engaged in by Houser but impose non-SOLSA penalties. A person

patronizes a child prostitute in violation of section 18-7-406(1)(a) if

such person “[e]ngages in an act which is prostitution of a child,” as

defined in section 18-7-401(7), or an act that is prostitution “by a

child,” as defined in section 18-7-401(6). In Maloy, the defendant

was convicted of patronizing a child prostitute under the

“prostitution of a child” definition for inducing a child to perform

certain sexual acts (with third persons, not the defendant), or

4“[A]ctual performance of a sexual act is not necessary; a mere offer or agreement to perform is sufficient, provided money has been promised.” People v. Houser, 2013 COA 11, ¶ 84.

46 inducing her to allow others to perform such acts, by coercion or

threat or intimidation or in exchange for money or other thing of

value. Id. at ¶ 21 (citing § 18-7-401(7)). The division concluded

that the conviction violated equal protection principles under the

Colorado Constitution because section 18-7-403(1)(a), C.R.S. 2019

(pandering of a child), and section 18-7-405.5, C.R.S. 2019

(inducement of child prostitution), as applied to the defendant,

criminalize the same conduct but do not require an indeterminate

life sentence under SOLSA. Id. at ¶ 21.

¶ 100 Houser was convicted of patronizing under the “prostitution by

a child” subsection, but this does not change the result of the equal

protection analysis.

“Prostitution by a child” means either a child performing or offering or agreeing to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any person not the child’s spouse in exchange for money or other thing of value or any person performing or offering or agreeing to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any child not the person’s spouse in exchange for money or other thing of value.

47 ¶ 101 This language is, admittedly, confusing. How can someone

other than a child prostitute engage in an act that is “prostitution

by a child?” As I understand it, section 18-7-406(1)(a) and section

18-7-401(6) together prohibit any action that results in an act of

prostitution by a child. In this case, the jury found that Houser

engaged in some act that resulted in a child offering or agreeing to

perform a sex act in exchange for money.5 Like in Maloy, this

conduct could also form the basis for non-SOLSA charges under the

pandering and inducement statutes.

¶ 102 The pandering statute prohibits someone, “for money or other

thing of value,” from “[i]nducing a child by menacing or criminal

intimidation to commit prostitution.”6 § 18-7-403(1)(a). Admittedly,

Houser did not act “for money or other thing of value.” Nor did he

realize an act of child prostitution through “menacing or

intimidation.” But, for the reasons described in Maloy, these

distinctions are meaningless for purposes of the equal protection

5 On this record, we cannot know whether the jury also concluded that Houser had sex with A.J. 6 Pandering, under section 18-7-403(1)(a), C.R.S. 2019, is a class 2

felony, but it is not an offense subject to punishment under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). §§ 18-1.3-1003(5)(a), -1004(1)(a), C.R.S. 2019.

48 analysis. Maloy, ¶¶ 27-29. Houser should not be subjected to

greater punishment when his conviction required proof of fewer

elements and his conduct was less blameworthy than that of

someone convicted of pandering. Id. at ¶¶ 28-29.

¶ 103 A person commits inducement of child prostitution if such

person, “by word or action, other than [by menacing or criminal

intimidation], induces a child to engage in an act which is

prostitution by a child.” § 18-7-405.5. As discussed above, that is

exactly the conduct Houser was convicted of here.

¶ 104 Accordingly, and consistent with the analysis in Maloy,

Houser’s conviction and sentence for patronizing a child prostitute

violated his right to equal protection of the law. If, but only if,

Houser can establish that his counsel’s performance was deficient,

he is entitled to relief.

IV. Substantive Due Process

¶ 105 SOLSA and section 18-7-407, as applied to Houser, violate his

substantive due process rights.

¶ 106 This, again, is not a novel claim. Indeed, variations of this

argument are raised in almost every appeal to this court in which a

SOLSA sentence was imposed. While other divisions of this court

49 have rejected variations of this argument, they have not addressed

the facts and circumstances presented here.

¶ 107 Various divisions of this court have rejected facial substantive

due process challenges to SOLSA.7 However, many did so without

independent analysis, relying only on the reasoning of earlier

divisions. People v. Knobee, 2020 COA 7, ¶ 63; People v. Sabell,

2018 COA 85; People v. Relaford, 2016 COA 99, ¶ 72; People v.

Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250 P.3d 668, 679

(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.

2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). The

lead cases, People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App.

2003), and People v. Strean, 74 P.3d 387, 393 (Colo. App. 2002),

addressed only facial challenges.8 The Colorado Supreme Court

has never weighed in on these questions. Accordingly, Houser’s

counsel could have raised the narrow, as-applied challenge that

7 Some of these cases, e.g., People v. Sabell, 2018 COA 85, purport to address an as-applied challenge to SOLSA, but they do not engage in any as-applied analysis, and instead simply rely on the decisions of earlier divisions to reject the claim. 8 People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003),

addresses as-applied challenges to SOLSA, but not an as-applied substantive due process challenge.

50 Houser now raises on appeal without departing from the broader

holdings in Oglethorpe and Strean.

¶ 108 “[T]he touchstone of due process is protection of the individual

against arbitrary action of government,” County of Sacramento v.

Lewis, 523 U.S. 833, 845 (1998) (citation omitted), and “sanctions

which are downright irrational,” Hudson v. United States, 522 U.S.

93, 103 (1997). Substantive due process prohibits the government

from engaging in conduct that shocks the conscience or interferes

with rights implicit in the concept of ordered liberty. People v.

Garlotte, 958 P.2d 469, 474 (Colo. App. 1997). When no

fundamental right is implicated, substantive due process requires

that legislation bear a rational relationship to a legitimate

governmental interest. People v. Zinn, 843 P.2d 1351, 1353 (Colo.

1993).

¶ 109 Under SOLSA and section 18-7-407, which prohibited Houser

from raising the defense that he believed A.J. was of age at trial,

Houser was convicted of the felony of patronizing a child prostitute

and sentenced to an indeterminate life sentence without any proof

that he had intended to patronize a child prostitute. If he had only

been found guilty of patronizing an adult prostitute, he would have

51 been convicted of less than a misdemeanor — a class 1 petty

offense. § 18-7-205, C.R.S. 2006. Thus, section 18-7-407 imposed

strict liability for an element of the offense that transformed

Houser’s crime from a petty offense to a felony bearing an

indeterminate life sentence.

¶ 110 In my view, imposing an indeterminate life sentence without

any proof that Houser actually intended to commit the element of

the crime requiring the indeterminate life sentence both shocks the

conscience and offends notions of ordered liberty.9

¶ 111 Moreover, under the facts of this case, the relationship

between Houser’s conduct that was proved at trial and the

indeterminate life sentence exceeds the bounds of rationality and

thus the protections of the Due Process Clause. SOLSA’s

indeterminate sentencing requirement is based on the presumption

9 Questions regarding the constitutionality of strict liability criminal statutes that impose substantial penalties are complex, and many related questions remain unresolved by both the United States Supreme Court and the Colorado Supreme Court. See People v. Manzo, 144 P.3d 551, 554-59 (Colo. 2006) (recognizing that public welfare offenses are “a constitutionally permissible type of strict liability offense”); Alan C. Michaels, Constitutional Innocence, 112 Harv. L. Rev. 828, 834 (1999). But here, the issue is quite narrow and does not require an extensive analysis of the limits of the General Assembly’s power to define strict liability crimes.

52 that the “majority” of sex offenders, if untreated, are likely to

reoffend. § 18-1.3-1001, C.R.S. 2019. But in this case, there has

never been an adjudication that Houser intended to patronize a

child prostitute. Nevertheless, SOLSA presumes that he is likely to

again act as a sex offender if untreated and requires an

indeterminate life sentence or, in the discretion of the district court,

indeterminate probation. Without proof of intent, there is no

rational relationship between the facts proved at trial and the

sentence required by SOLSA.

¶ 112 Irrespective of whether the Due Process Clause limits a state’s

power to define a strict liability defense that imposes a life sentence,

here SOLSA and section 18-7-407 create the perverse and patently

irrational result by which a defendant cannot defend himself at trial

by arguing that he never intended to commit the offense, but then

can only get out of prison and off parole if he admits to that same

offense.10 The Due Process Clause demands more than such a

Kafkaesque result.

10This is materially different from the ordinary SOLSA situation in which a defendant is convicted of an offense that prescribes mens rea components while the defendant maintains his innocence.

53 V. Grossly Disproportionate Punishment

¶ 113 Houser argues that his counsel was ineffective at sentencing

because his counsel failed to argue that an indeterminate sentence

was “not proportionate to his actual criminal conduct” in violation

of the Eighth Amendment. The effective life sentence imposed on

Houser raises obvious proportionality concerns. The majority does

not specifically refer to this claim but presumably rejects it based

on its newly formulated rule.

¶ 114 While I agree with Houser that his sentence creates the

inference of gross disproportionality, I cannot, on this record,

conclude that his sentence violates the Eighth Amendment. That

determination requires evidence to be presented to the

postconviction court.

¶ 115 The legislature’s authority to prescribe punishment “is limited

by the principle of proportionality that is embedded in the

constitutional prohibition against the infliction of cruel and

unusual punishment.” Wells-Yates v. People, 2019 CO 90M, ¶ 1.

Here, no court has ever adjudicated whether Houser ever had any intent to patronize a child prostitute.

54 The Eighth Amendment prohibits “not only barbaric punishments,

but also sentences that are disproportionate to the crime

committed.”11 Id. at ¶ 5 (quoting Solem v. Helm, 463 U.S. 277, 284

(1983)). “Simply put . . . the punishment should fit the crime.” Id.

at ¶ 1.

¶ 116 In analyzing whether the punishment fits the crime, courts

must first weigh the gravity or seriousness of the offense and the

harshness of the penalty and determine whether this comparison

leads to an inference of gross disproportionality (abbreviated

proportionality review). Id. at ¶¶ 11-15. If it does, then courts must

consider the sentences for other crimes in the same jurisdiction and

sentences for the same crime in other jurisdictions (extended

proportionality review). Id. at ¶¶ 15-17.

A. The Gravity or Seriousness of the Offense

¶ 117 To weigh the gravity or seriousness of the offense, courts must

consider “the harm caused or threatened to the victim or society,”

as well as the “culpability of the offender.” Id. at ¶ 12 (quoting

11Article II, section 20 of the Colorado Constitution is identical to the Eighth Amendment.

55 Solem, 463 U.S. at 292).12 Without a doubt, patronizing a child

prostitute threatens serious harm to both the victim and society.

The defendant’s moral or criminal culpability, however, depends

largely on the defendant’s state of mind. See Solem, 463 U.S. at

293; Wells-Yates, ¶ 12.

¶ 118 In this case, we know only that Houser intended to patronize a

prostitute. Because section 18-7-407 precluded Houser from

raising the defense that he did not know A.J. was underage, the

jury did not reach the question of whether Houser knew A.J. was

underage, and we cannot reach that conclusion. While this

conduct is illegal, it is only a petty offense, whereas patronizing a

child prostitute is a class 3 felony punishable by an indeterminate

sentence in prison.

B. The Harshness of the Penalty

¶ 119 Houser’s indeterminate life sentence is one of the harshest

sentences available under Colorado’s criminal code because it is, in

effect, a life sentence. While we must consider Houser’s parole

eligibility in weighing the severity of the sentence, Wells-Yates, ¶ 14,

12Unlike some crimes, patronizing a child prostitute is not per se grave or serious. Wells-Yates v. People, 2019 CO 90M, ¶ 65.

56 we must also acknowledge the sentence’s upper limit and the

realities of a SOLSA sentence.

¶ 120 In the equal protection context, courts “weigh[] the relative

harshness of a penalty by looking principally to the overall potential

term of imprisonment, not the timing of parole eligibility.” Dean,

¶ 28. I see no reason not to do so here, and the upper limit is

incarceration for the rest of Houser’s natural life.

¶ 121 Furthermore, under SOLSA, a sex offender may not be

released on parole unless the parole board determines that the

offender “has successfully progressed in treatment.” § 18-1.3-

1006(1)(a), C.R.S. 2019. If Houser continues to maintain, as he has

since he was charged, that he intended only to patronize an adult

prostitute — a claim that has never been adjudicated by any court

— and has no sexual interest in children, it is difficult to see how he

could ever successfully progress in treatment and thus be released

from prison.

¶ 122 Weighing these factors, I conclude that sentencing Houser to

an indeterminate life sentence without establishing that he

intended to patronize a child prostitute leads to an inference of

57 gross disproportionality between the gravity or seriousness of the

crime and the harshness of the penalty.

¶ 123 On this record, however, I cannot complete the second step of

the analysis mandated by Wells-Yates. “In the absence of a need for

. . . a detailed comparison of sentences imposed for . . . crimes in

this or other jurisdictions, an appellate court is as well positioned

as a trial court to conduct a proportionality review.” People v.

Gaskins, 825 P.2d 30, 37-38 (Colo. 1992), abrogated on other

grounds by Wells-Yates, 2019 CO 90M. Under Wells-Yates, ¶ 17,

the determination of whether Houser’s sentence constitutes

unconstitutionally excessive punishment requires an analysis of the

sentences for other crimes in the same jurisdiction and sentences

for the same crime in other jurisdictions — facts not in the record

before us.

VI. Conclusion

¶ 124 For these reasons, I would remand to the postconviction court

for a determination of whether Houser’s counsel was deficient for

failing to raise equal protection and substantive due process

challenges to his conviction and sentence. If the postconviction

court determined based on evidence presented at a hearing that

58 counsel provided ineffective assistance in failing to raise these

claims, Houser would be constitutionally entitled to relief.

¶ 125 On the Eighth Amendment claim, I would remand to the

postconviction court to conduct an extended proportionality review.

If the postconviction court then concluded that the sentence was

unconstitutionally disproportionate, it would be required to hold a

hearing to determine whether Houser’s counsel was deficient for

failing to raise an Eighth Amendment claim.

¶ 126 I respectfully dissent from the majority’s contrary disposition.