People v. Fritts

411 P.3d 842
CourtColorado Court of Appeals
DecidedAugust 14, 2014
DocketCourt of Appeals No. 12CA2228
StatusPublished
Cited by1 cases

This text of 411 P.3d 842 (People v. Fritts) 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. Fritts, 411 P.3d 842 (Colo. Ct. App. 2014).

Opinion

Opinion by JUDGE BERGER

¶ 1 Defendant, Glenn Robert Fritts, appeals the sentences imposed on resentencing after the postconviction court vacated his original sentences under Crim. P. 35(a). He contends that the court erred in denying his request for appointment of counsel at the resentencing hearing and in imposing consecutive sentences on resentencing. We affirm.

I. Background

¶ 2 Defendant was charged with sixteen counts of sexual-assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life.

*846¶ 3 In 2007, the Colorado Supreme Court decided Vensor v. People, holding that "the lower term of a sex offender's indeterminate sentence must be fixed according to the provisions of the determinate sentencing scheme of section 18-1.3-401[, C.R.S.]." 151 P.3d 1274, 1280 (Colo. 2007). Consequently, the lower term of a sex offender's indeterminate sentence can exceed the presumptive range of section 18-1.3-401, C.R.S. 2013, only if the sentencing court finds extraordinary aggravating circumstances. Id. (citing § 18-1.3-401(6) ).

¶ 4 In 2012, defendant filed a Crim. P. 35(a) motion to correct an illegal sentence. Defendant argued that because the lower term of his sentence (twenty years on each count) exceeded the presumptive sentencing range of section 18-1.3-401 and the sentencing court had made no finding of aggravating circumstances, his sentence was illegal under Vensor . Defendant also requested that an attorney be appointed to represent him at any resentencing hearing.

¶ 5 The postconviction court issued an order partially granting defendant's Crim. P. 35(a) motion. It vacated his sentence based upon Vensor but denied defendant's request for appointment of counsel. In explaining its decision to deny the request for counsel, the court stated that "a defendant has no federal or state constitutional right to counsel in a postconviction motion" and that there is no statutory right to counsel in Colorado for Crim. P. 35(a) motions.

¶ 6 In September 2012, the postconviction court held a resentencing hearing at which defendant was represented by privately-retained counsel, paid for by his relatives. At the conclusion of the hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

II. Right to Counsel

¶ 7 Defendant argues that the postconviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim. P. 35(a) motion. We agree that defendant may have had a right to appointed counsel, and that the court erred in ruling otherwise, but we conclude that the error was harmless beyond a reasonable doubt.

¶ 8 "Defendants have a constitutional right to the assistance of counsel at all critical stages of trial." People v. Munsey, 232 P.3d 113, 125 (Colo.App.2009) (citing U.S. Const. amends. VI, XIV ; Colo. Const. art. 2, § 16 ).1 A critical stage of a criminal proceeding is one "where there exists more than a 'minimal risk' that the absence of the defendant's counsel might impair the defendant's right to a fair trial." Key v. People, 865 P.2d 822, 825 (Colo.1994).

¶ 9 There is no constitutional right to postconviction counsel under either the United States Constitution or the Colorado Constitution. Silva v. People, 156 P.3d 1164, 1167 (Colo.2007). There is a limited statutory right in Colorado to postconviction counsel, at least for meritorious Crim. P. 35(c) motions. Id. at 1168. However, we need not decide whether this limited statutory right to postconviction counsel extends generally to Crim. P. 35(a) motions. To the extent that an order granting a Crim. P. 35(a) motion requires, as it did here, resentencing of a defendant, the defendant has a constitutional right to counsel for the resentencing hearing because "[a] sentencing hearing is a critical stage of a criminal proceeding." Munsey, 232 P.3d at 125.

¶ 10 When the postconviction court granted defendant's Crim. P. 35(a) motion, it ordered the district attorney to set the case *847for a resentencing hearing. Moreover, because defendant's original sentence was held to be illegal, there was no doubt that the purpose of the hearing was to resentence defendant; this was not a situation in which there was merely a clerical error in the mittimus. At the hearing, the court allowed defendant to present witnesses and heard from the People and defendant regarding what sentence would be appropriate. In imposing its new sentence, the court explained it had "considered the statements of the various witnesses as well as statements from [defendant]"; "reviewed the court file ... including the [presentence investigation report] and psychosexual evaluation that was performed on defendant"; reviewed the transcript of the original sentencing hearing; and considered the four general statutory factors a court must consider in imposing a sentence. The court thus held a resentencing hearing and erred in holding that defendant could have no right to appointed counsel.

¶ 11 We disagree with defendant that this error mandates automatic reversal without the need to show prejudice. In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard. Thus in Key, the supreme court held that the erroneous deprivation of the defendant's right to counsel during one discrete stage of the proceedings is reviewed as a "trial error" that requires reversal unless the error was harmless beyond a reasonable doubt. 865 P.2d at 826-27 ; see also People v. Moore,

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Related

People v. Mountjoy
431 P.3d 631 (Colorado Court of Appeals, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
411 P.3d 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fritts-coloctapp-2014.