23CA1337 Peo v Schindlbeck 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1337 Jefferson County District Court Nos. 18CR3007 & 20CR3304 Honorable Meegan A. Miloud, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael A. Schindlbeck,
Defendant-Appellant.
SENTENCES AFFIRMED
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rebecca E. Woodman, Attorney at Law, L.C., Rebecca E. Woodman, Kansas City, Missouri, for Defendant-Appellant ¶1 Defendant, Michael A. Schindlbeck, appeals the sentences
imposed following a resentencing hearing. We affirm.
I. Background
¶2 Schindlbeck pleaded guilty to a theft count under the terms of
a deferred sentence. The People filed a motion to revoke the
deferred sentence based on new sexual assault charges brought
against Schindlbeck in a separate case. After Schindlbeck pleaded
guilty to attempt to commit sexual assault and admitted to violating
his diversion agreement, the district court revoked Schindlbeck’s
deferred sentence, sentenced Schindlbeck to a six-year sentence in
the custody of the Department of Corrections (DOC), suspended
that sentence, and sentenced Schindlbeck in both cases to an
indeterminate sentence of five years to life on sex offender intensive
supervised probation.
¶3 Probation later filed a complaint to revoke Schindlbeck’s
probation, alleging Schindlbeck violated two conditions of
probation. Schindlbeck was appointed new defense counsel —
Zulfikar Wafai. Schindlbeck admitted the allegations, and the
district court imposed consecutive sentences of eighteen months in
1 community corrections and six years in community corrections,
with credit for time served.
¶4 Community corrections subsequently rejected Schindlbeck
based on several program violations. Wafai represented
Schindlbeck at the resentencing hearing. At the resentencing
hearing, Wafai argued that Schindlbeck should be given another
opportunity to complete a probationary sentence, rather than the
court sentencing him to prison. The court resentenced
Schindlbeck, imposing the original six-year DOC sentence and a
one-year DOC sentence in the other case, to run consecutively, with
credit for time served.
¶5 Before the resentencing hearing, while represented by Wafai,
Schindlbeck filed a pro se Crim. P. 35(c) motion in one of his cases,
alleging that Wafai had been ineffective earlier in the case for failing
to challenge a condition of probation that Schindlbeck subsequently
violated, among other reasons. At the conclusion of the
resentencing hearing, Wafai informed the court that Schindlbeck
had filed the pro se postconviction motion, provided the court with
a “courtesy copy,” and said that he was not requesting a ruling on
the motion at that time.
2 ¶6 This appeal followed.
II. Actual Conflict
¶7 Schindlbeck contends that the district court erred by failing to
inquire into a potential conflict or obtain an express waiver after it
became aware at the end of the hearing that Schindlbeck had filed a
pro se Crim. P. 35(c) alleging that Wafai was ineffective earlier in the
case. Because we conclude that there was no actual conflict of
interest, we need not address the district court’s lack of inquiry or
the People’s contention that Schindlbeck waived any appellate
claims regarding the issue.
¶8 “We review de novo whether an actual conflict of interest
existed.” People v. Deutsch, 2020 COA 114, ¶ 13.
¶9 The right to counsel is guaranteed by the Sixth Amendment
and is considered essential to a fair trial. People v. Arguello, 772
P.2d 87, 92 (Colo. 1989). The right to counsel exists at every
“critical stage” of a criminal prosecution, People v. Evans, 971 P.2d
229, 232 (Colo. App. 1998), and a resentencing hearing is such a
critical stage, People v. Duke, 36 P.3d 149, 152 (Colo. App. 2001).
This includes the right to conflict-free counsel. West v. People,
2015 CO 5, ¶ 15. Counsel can become encumbered with a conflict
3 when their “ability to champion the cause of the client becomes
substantially impaired.” Rodriguez v. Dist. Ct., 719 P.2d 699, 704
(Colo. 1986).
¶ 10 “Once a trial court is put on notice of a potential conflict of
interest between the defendant and defense counsel, it has a duty
to inquire into the propriety of continued representation by
counsel.” People v. Hagos, 250 P.3d 596, 613 (Colo. App. 2009)
(citation omitted). However, a district court’s failure to inquire into
a potential conflict is not automatic grounds for reversal. See
Mickens v. Taylor, 535 U.S. 162, 174 (2002).
¶ 11 To obtain relief on this ground, the defendant “must
demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” West, ¶ 18 (quoting Cuyler v. Sullivan, 446
U.S. 335, 348 (1980)). To show an adverse effect, a defendant must
(1) identify a plausible alternative defense strategy or tactic that counsel could have pursued, (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision, and (3) establish that counsel’s failure to pursue the strategy or tactic was linked to the actual conflict.
Id. at ¶ 57.
4 ¶ 12 Although the district court did not inquire into whether there
was a conflict of interest during, or immediately following, the
resentencing hearing, Schindlbeck has not shown that Wafai was
subject to an actual conflict of interest that adversely affected his
performance on behalf of Schindlbeck. Therefore, reversal is not
warranted.
¶ 13 Schindlbeck asserts in conclusory fashion that because he
had previously filed a Crim. P. 35(c) motion alleging ineffective
assistance of counsel, Wafai’s performance was adversely affected at
the resentencing hearing. But Schindlbeck points to nothing in the
record that suggests Wafai’s performance suffered as a result of the
pending motion. Nor does he identify an objectively reasonable
alternative strategy or tactic that Wafai failed to pursue at
resentencing. And we see no reason to believe that Wafai’s
argument at the resentencing hearing was impacted in any way by
Schindlbeck’s Crim. P. 35(c) motion.
¶ 14 Notwithstanding Schindlbeck’s previous failures at
progressively more restrictive levels of supervision, Wafai presented
a cogent, if not ultimately persuasive, argument that Schindlbeck
should be given yet another chance at probation in order to
5 complete his sex offender treatment. Moreover, he appropriately
requested that Schindlbeck be credited for time served on the
sentence for the theft conviction. Indeed, during his allocution,
Schindlbeck essentially adopted Wafai’s request, and he expressed
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23CA1337 Peo v Schindlbeck 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1337 Jefferson County District Court Nos. 18CR3007 & 20CR3304 Honorable Meegan A. Miloud, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael A. Schindlbeck,
Defendant-Appellant.
SENTENCES AFFIRMED
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rebecca E. Woodman, Attorney at Law, L.C., Rebecca E. Woodman, Kansas City, Missouri, for Defendant-Appellant ¶1 Defendant, Michael A. Schindlbeck, appeals the sentences
imposed following a resentencing hearing. We affirm.
I. Background
¶2 Schindlbeck pleaded guilty to a theft count under the terms of
a deferred sentence. The People filed a motion to revoke the
deferred sentence based on new sexual assault charges brought
against Schindlbeck in a separate case. After Schindlbeck pleaded
guilty to attempt to commit sexual assault and admitted to violating
his diversion agreement, the district court revoked Schindlbeck’s
deferred sentence, sentenced Schindlbeck to a six-year sentence in
the custody of the Department of Corrections (DOC), suspended
that sentence, and sentenced Schindlbeck in both cases to an
indeterminate sentence of five years to life on sex offender intensive
supervised probation.
¶3 Probation later filed a complaint to revoke Schindlbeck’s
probation, alleging Schindlbeck violated two conditions of
probation. Schindlbeck was appointed new defense counsel —
Zulfikar Wafai. Schindlbeck admitted the allegations, and the
district court imposed consecutive sentences of eighteen months in
1 community corrections and six years in community corrections,
with credit for time served.
¶4 Community corrections subsequently rejected Schindlbeck
based on several program violations. Wafai represented
Schindlbeck at the resentencing hearing. At the resentencing
hearing, Wafai argued that Schindlbeck should be given another
opportunity to complete a probationary sentence, rather than the
court sentencing him to prison. The court resentenced
Schindlbeck, imposing the original six-year DOC sentence and a
one-year DOC sentence in the other case, to run consecutively, with
credit for time served.
¶5 Before the resentencing hearing, while represented by Wafai,
Schindlbeck filed a pro se Crim. P. 35(c) motion in one of his cases,
alleging that Wafai had been ineffective earlier in the case for failing
to challenge a condition of probation that Schindlbeck subsequently
violated, among other reasons. At the conclusion of the
resentencing hearing, Wafai informed the court that Schindlbeck
had filed the pro se postconviction motion, provided the court with
a “courtesy copy,” and said that he was not requesting a ruling on
the motion at that time.
2 ¶6 This appeal followed.
II. Actual Conflict
¶7 Schindlbeck contends that the district court erred by failing to
inquire into a potential conflict or obtain an express waiver after it
became aware at the end of the hearing that Schindlbeck had filed a
pro se Crim. P. 35(c) alleging that Wafai was ineffective earlier in the
case. Because we conclude that there was no actual conflict of
interest, we need not address the district court’s lack of inquiry or
the People’s contention that Schindlbeck waived any appellate
claims regarding the issue.
¶8 “We review de novo whether an actual conflict of interest
existed.” People v. Deutsch, 2020 COA 114, ¶ 13.
¶9 The right to counsel is guaranteed by the Sixth Amendment
and is considered essential to a fair trial. People v. Arguello, 772
P.2d 87, 92 (Colo. 1989). The right to counsel exists at every
“critical stage” of a criminal prosecution, People v. Evans, 971 P.2d
229, 232 (Colo. App. 1998), and a resentencing hearing is such a
critical stage, People v. Duke, 36 P.3d 149, 152 (Colo. App. 2001).
This includes the right to conflict-free counsel. West v. People,
2015 CO 5, ¶ 15. Counsel can become encumbered with a conflict
3 when their “ability to champion the cause of the client becomes
substantially impaired.” Rodriguez v. Dist. Ct., 719 P.2d 699, 704
(Colo. 1986).
¶ 10 “Once a trial court is put on notice of a potential conflict of
interest between the defendant and defense counsel, it has a duty
to inquire into the propriety of continued representation by
counsel.” People v. Hagos, 250 P.3d 596, 613 (Colo. App. 2009)
(citation omitted). However, a district court’s failure to inquire into
a potential conflict is not automatic grounds for reversal. See
Mickens v. Taylor, 535 U.S. 162, 174 (2002).
¶ 11 To obtain relief on this ground, the defendant “must
demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” West, ¶ 18 (quoting Cuyler v. Sullivan, 446
U.S. 335, 348 (1980)). To show an adverse effect, a defendant must
(1) identify a plausible alternative defense strategy or tactic that counsel could have pursued, (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision, and (3) establish that counsel’s failure to pursue the strategy or tactic was linked to the actual conflict.
Id. at ¶ 57.
4 ¶ 12 Although the district court did not inquire into whether there
was a conflict of interest during, or immediately following, the
resentencing hearing, Schindlbeck has not shown that Wafai was
subject to an actual conflict of interest that adversely affected his
performance on behalf of Schindlbeck. Therefore, reversal is not
warranted.
¶ 13 Schindlbeck asserts in conclusory fashion that because he
had previously filed a Crim. P. 35(c) motion alleging ineffective
assistance of counsel, Wafai’s performance was adversely affected at
the resentencing hearing. But Schindlbeck points to nothing in the
record that suggests Wafai’s performance suffered as a result of the
pending motion. Nor does he identify an objectively reasonable
alternative strategy or tactic that Wafai failed to pursue at
resentencing. And we see no reason to believe that Wafai’s
argument at the resentencing hearing was impacted in any way by
Schindlbeck’s Crim. P. 35(c) motion.
¶ 14 Notwithstanding Schindlbeck’s previous failures at
progressively more restrictive levels of supervision, Wafai presented
a cogent, if not ultimately persuasive, argument that Schindlbeck
should be given yet another chance at probation in order to
5 complete his sex offender treatment. Moreover, he appropriately
requested that Schindlbeck be credited for time served on the
sentence for the theft conviction. Indeed, during his allocution,
Schindlbeck essentially adopted Wafai’s request, and he expressed
no concern that Wafai did not make the best argument he could.
Thus, no conflict of interest adversely affecting Wafai’s performance
is evident from the record.
¶ 15 Because Wafai did not operate under an actual conflict of
interest, Schindlbeck was not deprived of conflict-free counsel.
III. Resentencing Reasons
¶ 16 Schindlbeck contends that the district court erred by
sentencing him to prison without stating its reasons. We discern
no error.
¶ 17 “We review a trial court’s sentencing decision for an abuse of
discretion.” People v. Herrera, 2014 COA 20, ¶ 16. “A court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair . . . .” Id.
¶ 18 “In exercising its sentencing discretion, a court must consider
the nature of the offense, the character and rehabilitative potential
of the offender, the deterrence of crime, and the protection of the
6 public.” Id. at ¶ 17. But a sentencing court need not expressly
refer to each of the factors it considers when exercising its
discretion in fashioning a sentence; rather, a sentence that is within
the range required by law and is based upon appropriate facts in
the record will be upheld. Id.
¶ 19 When resentencing a defendant from community corrections
to the DOC following a defendant’s failure to comply with the
requirements of community corrections, it is not an abuse of
discretion for the court to reference the original sentencing judge’s
considerations and, finding nothing in the record sufficient to
modify or readdress those considerations, simply reimpose the
same sentence to the DOC. See id. at ¶¶ 19-20 (concluding that the
district court considered appropriate factors when it originally
sentenced the defendant and did not abuse its discretion when it
resentenced the defendant in light of those original factors).
¶ 20 The district court referenced the original sentencing judge’s
considerations when resentencing Schindlbeck to the original
sentence to the DOC. In doing so, the court did not indicate that it
felt bound to follow the same considerations; to the contrary, the
court’s comments clearly indicated that it was choosing to take the
7 same path. And Schindlbeck does not contend that the original
sentencing court failed to exercise its discretion when it imposed
the original sentence. See id. at ¶ 19. Nor do we discern anything
in the record sufficient to modify or readdress those considerations.
¶ 21 Schindlbeck also contends that the district court failed to
consider relevant factors to place him back on probation. But
Schindlbeck fails to mention the victim’s impassioned plea at
sentencing that Schindlbeck be incarcerated. Nor does he
acknowledge his history of failure at lesser levels of supervision:
that he initially received a deferred sentence, which was later
revoked when he pleaded guilty to a new charge; that his
subsequent probation sentence was revoked after he violated two of
the conditions; and that he then violated several program
conditions imposed by the community corrections program to which
he was sentenced. Given these repeated violations, it was not an
abuse of discretion for the court to sentence Schindlbeck to prison,
instead of probation. See id. at ¶ 18 (“That the court chose not
to . . . sentence [the defendant] to less time does not demonstrate
that it failed to exercise its discretion.”).
8 IV. Disposition
¶ 22 The sentences are affirmed.
JUDGE PAWAR and JUDGE SCHUTZ concur.