People v. Delgadillo

2012 COA 33, 275 P.3d 772, 2012 WL 663163, 2012 Colo. App. LEXIS 302
CourtColorado Court of Appeals
DecidedMarch 1, 2012
DocketNo. 07CA2099
StatusPublished
Cited by10 cases

This text of 2012 COA 33 (People v. Delgadillo) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Delgadillo, 2012 COA 33, 275 P.3d 772, 2012 WL 663163, 2012 Colo. App. LEXIS 302 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge TERRY.

{1 Defendant, Javier Delgadillo, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault and two counts of contributing to the delinquency of a minor. Because we conclude that his trial counsel had a conflict of interest that adversely affected counsel's performance, we reverse the judgment, vacate the sentence, and remand for further proceedings.

I. Background

12 Defendant took the stand at trial to testify in his own defense. Defendant is a native Spanish speaker, and while he spoke at least some English, he was assisted during trial by an English language interpreter. The following exchange occurred between defendant and his counsel on direct examination:

Q: Mr. Delgadillo, ... did you hear the testimony of ... a technician or scientist from [the] Colorado Bureau of Investigation crime lab in Montrose?
A: Yes, I did hear it.
Q: And will you tell the jury who requested that DNA testing?
A: I did.
Q: -Now, did you and I have a conversation before you requested that DNA testing?
A: No, we just had a conversation. You told ... me that it was going to be a tough trial. I asked you what you sug[775]*775gested what to do [sic], and because ... I wanted to prove that it wasn't me; and so you said the most sure thing would be the DNA test. And that's when I went ahead and did it.
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Q: What did I tell you the result would be of this case if there was a scientific DNA match between you and ... things intimate to [the victim]?
A: [You] told me that they were going to give me 25 to 30 years, no discussion.
Q: If there was a match?
A: Yes, if there was.
[Prosecutor]: Your Honor, I'm going to object to this. It's inappropriate ... to have evidence about possible sentence. Quite frankly, it's not even accurate.
The Court: Sustained. The jury will disregard any potential sentences that may be rendered; and please stay away from that line of questioning, [defense counsel].
[Defense counsel]: Okay.
Q: [by defense counsel]: So realizing or having been advised of the possible benefits and possible bad things that could happen from DNA testing, what did you decide to do?
A: I decided to get my DNA [sic].

Before the close of defendant's case, the prosecutor told the court that defendant had misstated his potential sentencing exposure. The court then held a proceeding in camera for the prosecutor to question defense counsel on that issue. The proceeding was held in chambers. Present were the judge, counsel, defendant, the English language interpreter, and the court reporter.

13 During the in camera proceeding, defense counsel, while still representing defendant in the ongoing trial, was sworn as a witness to testify about communications he had with defendant concerning the sentencing range. Counsel testified that he told defendant he could be sentenced to twenty-five to thirty years if convicted at trial. The prosecutor then told the court that the sentencing range was four to sixteen years if the sentences were to run concurrently. No one asked defense counsel whether his statement to defendant regarding the sentencing range referenced a consecutive or concurrent range of sentences. (If the reference was to the higher end of the range based on consecutive sentencing, then the attorney's assessment of the range would not have been erroneous.)

T4 The court then asked defendant to reaffirm that he would still have rejected the plea bargain if he had known that the sentencing range was four to sixteen years. Defendant responded that he would have taken the plea bargain instead of proceeding to trial if he had been told that was the range.

T5 Defendant then inquired whether the previous plea offer was still open, and the prosecutor stated it was not. Further details about the in camera proceeding will be provided below.

16 The case proceeded to verdict, and defendant was found guilty as noted above.

II. Conflict of Interest

T7 Defendant contends his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. Defendant also asserts that the specter of a potential ineffece-tive assistance of counsel claim and defense counsel's revelation of attorney-client privileged communications further exacerbated the conflict situation. We agree that in the cireumstances presented here, there was an actual conflict of interest that deprived defendant of conflict-free representation.

A. Legal Standards

18 A defendant has a right to conflict-free counsel. U.S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Harlan, 54 P.3d 871, 878 (Colo.2002); People v. Ragusa, 220 P.3d 1002, 1006 (Colo.App.2009).

19 A conflict of interest exists when the attorney's ability to represent a client is materially limited by the attorney's own interests. Colo. RPC 1.7(b);, People v. Edebohls, 944 P.2d 552, 556 (Colo.App.1996). "[Aln attorney [must] cease representing a client [when] the attorney's ability to champion the cause of the client becomes substan[776]*776tially impaired." Rodriguez v. Dist. Court, 719 P.2d 699, 704 (Colo.1986).

110 Conflicts are categorized as either actual or potential. Ragusa, 220 P.3d at 1006. An actual conflict of interest is one that is real and substantial, whereas a potential conflict is one that is possible or nascent, but in all probability will arise. Id.

B. Trial Court's Statement to Defendant Regarding the In Camera Proceeding

{11 The in camera proceeding occurred before the defense rested its case. At the start of the in camera proceeding, the court stated the following:

Mr. Delgadillo, the [prosecutor] is concerned about some testimony that you gave regarding what you were advised by [defense counsel] concerning possible penalties if you are found guilty at trial. She's concerned that you might not have been advised properly as to what the sentence really is-could be potentially, and so I'm going to swear [defense counsel] in and ... let [the prosecutor] question [defense counsel] on a very, very limited basis just to that issue.
And this will be under seal, and this does not constitute a waiver in any way, shape, or form of any attorney-client privilege that may exist between [defense attorney] and his client.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 COA 33, 275 P.3d 772, 2012 WL 663163, 2012 Colo. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-delgadillo-coloctapp-2012.