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 March 12, 2026
2026COA12
No. 24CA0131, People v. Palermo — Criminal Law — Court Appointed Counsel — Request for Substitute Counsel — Bergerud Hearing
A division of the court of appeals considers whether a hearing
on a criminal defendant’s request for substitute counsel under
People v. Bergerud, 223 P.3d 686 (Colo. 2010) (Bergerud hearing),
must be heard by a judge other than the one presiding over the
case. The division concludes that nothing in Bergerud requires as
much and that the judge presiding over the case may, but is not
required to, oversee a Bergerud hearing.
The division thus rejects the defendant’s contentions that the
district court erred by having the same judge preside over the
Bergerud hearing and the sentencing hearing, failing to advise him
that he risked waiving his attorney-client privilege during the
Bergerud hearing, and relying on certain information in imposing his sentence. The division also declines to consider the defendant’s
challenge to the validity of his plea agreement.
Accordingly, the division affirms the sentence imposed by the
district court. COLORADO COURT OF APPEALS 2026COA12
Court of Appeals No. 24CA0131 Huerfano County District Court Nos. 22CR44 & 22CR45 Honorable J. Clay McKisson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony Palermo,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII Opinion by JUDGE MOULTRIE Tow and Lum, JJ., concur
Announced March 12, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Anthony Palermo, appeals the sentence imposed
after he pleaded guilty to harassment and assault. We affirm.
I. Background
¶2 In 2023, Palermo entered into a plea agreement to resolve
charges from two cases in which he was charged with stalking,
harassment, sexual assault on a child by one in a position of trust,
and sexual assault. In exchange for dismissal of these charges,
Palermo pleaded guilty to harassment and an amended count of
second degree assault, a class 4 felony. Following a hearing (plea
hearing), the district court accepted Palermo’s guilty plea.
¶3 Three months later, the court held a hearing on Palermo’s
asserted conflict with his court-appointed counsel (Bergerud1
hearing), immediately followed by a sentencing hearing. At the
Bergerud hearing, the court determined that no conflict existed
between Palermo and his counsel and explained that Palermo could
either continue with his existing, court-appointed counsel or
1 A court holds a Bergerud hearing when a defendant objects to
court-appointed counsel without providing a sufficiently detailed motion on which the court can base its decision whether to appoint substitute counsel. See People v. Bergerud, 223 P.3d 686, 694-95 (Colo. 2010).
1 proceed without counsel. Palermo chose to continue with counsel
for sentencing. During the sentencing hearing, the court, noting
Palermo’s criminal history, including a previous sexual offense
involving a minor, sentenced Palermo to fifteen years in prison for
second degree assault and a concurrent four-month jail term for
harassment.
¶4 Palermo contends that his sentence should be reversed
because the district court erred by (1) holding the Bergerud hearing
without having a different judge preside over the hearing and
without advising him that he was waiving his attorney-client
privilege; (2) sentencing him without affirming that he understood
and agreed to the presumptive range and crime of conviction
implicated by his plea agreement; and (3) relying on insufficient and
inaccurate information in imposing the sentence. We address each
contention in turn.
II. Bergerud Hearing
A. Additional Facts
¶5 Two months after Palermo entered his plea, he filed a motion
asserting that he had a conflict with his counsel and wanted to fire
2 her. Palermo also said that his counsel coerced him into accepting
an inappropriate plea agreement.
¶6 At the Bergerud hearing, outside the presence of the
prosecution and the public, the district court heard argument from
Palermo and his counsel on Palermo’s motion. The court asked
Palermo if he was requesting a new attorney. Palermo said he
didn’t feel like his counsel’s representation had been effective or
that he had “ever been given an opportunity to even voice [his] side
of the story.” He asked the court to allow him to “defend [him]self
pro se and afford [him] a legal team . . . to advise him.”
¶7 Defense counsel said that she had been in consistent
communication with Palermo and had previously discussed the plea
agreement with him, but Palermo had only told her that day that he
didn’t feel he’d received enough time to consider the plea
agreement. Counsel said she would have requested a continuance
if Palermo had informed her that he wasn’t ready to accept the plea.
¶8 The court found that Palermo failed to establish good cause for
a substitution of counsel and that Palermo wasn’t “coerced in any
way” to enter into the plea agreement. In making its determination,
the court noted that Palermo didn’t have any questions at the plea
3 hearing, said that he had enough time to review the plea agreement,
agreed that he wanted to continue with his guilty plea, and entered
his plea voluntarily.
¶9 After the court indicated it would give him a different
advisement if he wanted to represent himself at the sentencing
hearing, Palermo chose to continue with his court-appointed
counsel.
B. Applicable Law and Standard of Review
¶ 10 A criminal defendant has a constitutional right to have an
impartial judge at all stages of the proceedings. See Sanders v.
People, 2024 CO 33, ¶¶ 27-28. Thus, a judge may not preside over
a criminal proceeding if he is actually biased — that is, the judge is
“interested or prejudiced with respect to the case,” § 16-6-201(1)(d),
C.R.S. 2025, such that, “in all probability,” he will be unable to
“deal[] fairly with a party,” People v. Julien, 47 P.3d 1194, 1197
(Colo. 2002). And even if he harbors no actual bias, a judge should
recuse himself from any case “in which the judge’s impartiality
might reasonably be questioned.” People in Interest of A.G.,
262 P.3d 646, 650 (Colo. 2011) (quoting C.J.C. 2.11(A)).
4 ¶ 11 However, “[u]nless a reasonable person could infer that the
judge would in all probability be prejudiced against [a party], the
judge’s duty is to sit on the case.” Smith v. Dist. Ct., 629 P.2d 1055,
1056 (Colo. 1981). A reasonable person is “well-informed,
thoughtful and objective” rather than “hypersensitive, cynical, and
suspicious.” People v. Owens, 219 P.3d 379, 386 (Colo. App. 2009)
(citation omitted).
¶ 12 Whether a district court judge had a duty to recuse himself is
a question of law that we review de novo. Richardson v. People,
2020 CO 46, ¶ 22.
¶ 13 A district court must establish that a defendant has a
well-founded reason for believing that court-appointed counsel can’t
or won’t represent him before appointing substitute counsel.
People v. Bergerud, 223 P.3d 686, 694 (Colo. 2010). At a Bergerud
hearing, the court must receive information from both the
defendant and the attorney about the nature of their conflict to
allow the district court to determine whether the defendant is
entitled to substitute counsel. Id. at 694-95. In making this
inquiry, the court may examine a defendant and his counsel’s
5 disagreement “without infringing on the attorney-client privilege.”
Id. at 694.
C. Analysis
1. The Court Didn’t Err By Failing to Have a Different District Court Judge Preside Over the Bergerud Hearing
¶ 14 Palermo argues that a Bergerud hearing “should generally be
held in front of a different, neutral judge.” We aren’t persuaded.
¶ 15 In Bergerud, the supreme court established a four-factor test
to guide district court and appellate inquiry into whether substitute
counsel is warranted.2 223 P.3d at 695. The supreme court did
not, however, address whether a judge other than the one presiding
over the case should conduct the hearing on a defendant’s request
for substitute counsel. But it’s worth noting that in Bergerud the
same judge who was presiding over the underlying case oversaw the
hearing on the defendant’s request for substitute counsel. See id.
at 692. The supreme court neither suggested that this was
2 The Bergerud factors are (1) the timeliness of the defendant’s
request; (2) whether the defendant substantially and unreasonably contributed to the underlying conflict; (3) whether the attorney- client conflict was so great that it resulted in a total lack of communication or otherwise prevented an adequate defense; and (4) the adequacy of the court’s inquiry into the defendant’s complaint. Bergerud, 223 P.3d at 695.
6 improper nor instructed that a different judge handle the matter on
remand. See id. at 705-07. Thus, despite Palermo’s assertion
otherwise, Bergerud doesn’t require that a different judge hear a
defendant’s request for substitute counsel.3
¶ 16 The other cases Palermo cites in support of his argument,
People v. Mills, 163 P.3d 1129 (Colo. 2007), and People v. Delgadillo,
2012 COA 33, are likewise inapposite. Mills discussed how a
district court should proceed when postconviction counsel — a
public defender — requests to withdraw due to an alleged conflict
arising from a different public defender’s earlier representation of
the same defendant. 163 P.3d at 1132-35. Delgadillo concerned a
court’s sua sponte, midtrial decision to hold “a proceeding in
camera for the prosecutor to question defense counsel” about
counsel’s advice to the defendant without the defendant’s waiver of
his attorney-client privilege. Delgadillo, ¶¶ 2-3, 11-12. Moreover,
neither case stands for the general proposition — asserted by
3 We’re aware that in some Colorado judicial districts Bergerud
hearings are routinely conducted by a judge other than the trial judge. Nothing in Bergerud prohibits this, and we don’t mean to suggest that a Bergerud hearing must be heard by the judge presiding over the case.
7 Palermo — that when a concern arises implicating a defendant’s
attorney-client privilege with his court-appointed counsel, the
substance of the concern must be heard by a judge other than the
one assigned to the case. Cf. People v. Schultheis, 638 P.2d 8, 14
(Colo. 1981) (when counsel asks to withdraw due to an alleged
irreconcilable conflict, “counsel should proceed with a request for a
record out of the presence of the trial judge and the prosecutor if
the court denies the motion to withdraw”).
¶ 17 Palermo argues that a different judge should have handled his
Bergerud hearing because his reaction to the judge’s decision not to
appoint him new counsel “may have tainted the judge’s view of him”
for purposes of sentencing. But, generally, what a judge learns in
their judicial capacity alone isn’t sufficient to support a finding of
bias that requires recusal. See Smith, 629 P.2d at 1057; Sanders,
¶¶ 32, 42 (a remote and insubstantial risk of bias doesn’t mandate
recusal; rather, recusal is required only when a judge is actually
biased or there is an objectively reasonable probability that the
judge will be unable to deal fairly with a party under the
circumstances). And, apart from overseeing the Bergerud hearing,
Palermo hasn’t put forth any other reasons the assigned judge
8 might have been biased. See Richardson, ¶ 37 (rejecting the
defendant’s argument that a judge should have recused himself
when “nothing in the record reasonably call[ed] into question the
judge’s impartiality toward the parties”).
¶ 18 Accordingly, we conclude that it wasn’t error for the assigned
judge to preside over the Bergerud hearing.
2. The Court Didn’t Err by Failing to Advise Palermo About Waiving His Attorney-Client Privilege
¶ 19 Palermo also argues that the district court erred by failing to
advise him that he risked waiving his attorney-client privilege
during the Bergerud hearing. We disagree.
¶ 20 The client holds the attorney-client privilege, which protects
communications related to legal advice between an attorney and
their client. Delgadillo, ¶ 15. However, “a request for new counsel
necessarily implies a limited waiver of the attorney-client privilege”
because an attorney’s obligations “must yield to the court’s need to
investigate the nature of the attorney-client dispute.” Bergerud,
223 P.3d at 703. And Bergerud allows a court to “inquire as to
pertinent details of a disagreement between a defendant and
9 counsel without infringing on the attorney-client privilege.” Id. at 694
(emphasis added).
¶ 21 Because Palermo’s request for new counsel, by its nature,
implied a limited waiver of his attorney-client privilege, the court
didn’t err by not advising him of this waiver. See id. at 703; see
also People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006) (noting that a
defendant may impliedly waive the attorney-client privilege by
placing at issue the “propriety of advice given” by their attorney).
III. Plea Agreement
A. Additional Facts
¶ 22 Paragraph two of Palermo’s written plea agreement stated that
he would plead guilty to an amended count of “[a]ssault in the
second degree,” but in the same sentence, it provided a citation to
section 18-3-402(1)(a), C.R.S. 2025, the sexual assault statute.
Paragraph five of the agreement listed the elements of second
degree assault with a deadly weapon.4 See § 18-3-203(1)(b), C.R.S.
2025. Paragraph three of the plea agreement, entitled “Terms of the
4 Palermo’s defense counsel noted that this was a “plea of
convenience.” There is no indication that a deadly weapon was involved in the factual circumstances underlying the offense.
10 Plea Agreement,” stated that the parties agreed to a sexual factual
basis for the plea, along with a sentencing range of five to sixteen
years in the custody of the Department of Corrections (DOC). Then,
in paragraph four, the agreement explained that a class 4 felony
was punishable by a term of two to twelve years of imprisonment
depending on mitigating or aggravating circumstances.
B. Analysis
¶ 23 Palermo contends that the district court erred by sentencing
him without affirming that he understood and agreed to the plea
because the written plea agreement indicated he was pleading guilty
to second degree assault with a deadly weapon but cited the statute
for sexual assault. He notes that while both crimes are class 4
felonies, they have different sentencing ranges. Palermo argues
that, collectively, the ambiguity of the written agreement, his mental
health, his asserted conflict with his attorney, and the lack of
discussion at the plea hearing regarding the elements of the crime
to which he was pleading guilty created a situation that required
the court to affirm “that he understood and agreed to the crime of
conviction and sentencing range before proceeding to sentencing.”
11 ¶ 24 The People contend that we shouldn’t consider Palermo’s
argument because it doesn’t challenge his sentence but rather
implicates the validity of his plea. We agree with the People.
¶ 25 A defendant who challenges his guilty plea by asserting that
the plea agreement was entered into unknowingly or unintelligently,
or that plea counsel provided ineffective assistance, implicates the
constitutionality of his conviction. See Sanchez-Martinez v. People,
250 P.3d 1248, 1255 (Colo. 2011) (“[T]o be constitutionally valid, a
defendant must enter his guilty plea knowingly, voluntarily, and
intelligently.”); Davis v. People, 871 P.2d 769, 772 (Colo. 1994) (a
criminal defendant is constitutionally entitled to the effective
assistance of counsel).
¶ 26 A defendant who, before sentencing, challenges the
constitutionality of his guilty plea may seek to withdraw the plea
under Crim. P. 32(d). Kazadi v. People, 2012 CO 73, ¶ 14.
However, after sentencing, a defendant must file a Crim. P. 35(c)
motion to withdraw the plea. See Crim. P. 35(c)(2)(I). This is so
because postconviction review of whether a defendant validly
waived a constitutional right usually requires consideration of facts
brought forward by the defendant that aren’t contained in the direct
12 appeal record. See Moore v. People, 2014 CO 8, ¶ 17
(“Post-conviction review focuses not only on the sufficiency of the
advisement itself, but also on the actual knowing, voluntary, and
intelligent nature of a defendant’s waiver.”). Accordingly, because
Palermo’s challenge to his sentence is fundamentally a challenge to
the constitutional validity of his guilty plea, it’s not properly before
us in this direct appeal, and we decline to consider it further. See
People v. Kirk, 221 P.3d 63, 64-65 (Colo. App. 2009) (because the
defendant’s post-sentencing request to withdraw his guilty plea
required resolution of factual issues, the defendant was required to
raise his request in a Crim. P. 35(c) motion rather than on direct
appeal).
IV. Sufficiency and Accuracy of Sentencing Evidence
¶ 27 Palermo contends that the district court erred by relying on
insufficient and inaccurate information in imposing his sentence.
We discern no abuse of discretion.
A. Additional Facts
¶ 28 At the sentencing hearing, both the victim and her mother
said that Palermo forced himself on the victim more than once, and
they requested the maximum sentence. On the other hand,
13 Palermo’s mother said that the victim’s mother told her that the
victim was a “willing participant” in having sex with Palermo. The
court responded that it was “not going to entertain anything that is
placing blame” on the victim.
¶ 29 Before Palermo addressed the court, the court indicated that it
would put “some limitation” on Palermo’s statements by “not
allow[ing] [Palermo] to use [his statements] as an opportunity to
further victimize the family or . . . place any blame on the victim.”
¶ 30 Palermo said that he was angry because the way that the
victim and her family “portrayed the situation” was “false” and “not
true.” Palermo said that he didn’t physically attack the victim or
force himself on her and that they had a consensual relationship.
Thus, he requested the minimum sentence in the range.
B. Applicable Law and Standard of Review
¶ 31 We will uphold a sentence if it is (1) within the range required
by law; (2) based on appropriate considerations as reflected in the
record; and (3) factually supported by the circumstances of the
case. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990).
¶ 32 We review a sentencing decision for an abuse of discretion.
See People v. Torrez, 2013 COA 37, ¶ 71. A district court has broad
14 discretion in sentencing when, as here, it imposes a sentence within
the statutory range. People v. Rice, 606 P.2d 1300, 1302-03 (Colo.
1980). In exercising its discretion, the court should consider,
among other things, the nature of the offense; the offender’s
character, rehabilitative potential, and criminal history; any
aggravating or mitigating circumstances; and the protection of the
public. Torrez, ¶ 73. However, the court may find certain factors
more compelling than others and may conclude that “the
circumstances of the crime alone” justify a harsh sentence. Id. at
¶ 74.
¶ 33 We won’t reverse a sentencing decision unless the court
imposed a sentence that is manifestly arbitrary, unreasonable, or
unfair or is based on an erroneous construction of the law.
People v. Herrera, 2014 COA 20, ¶ 16.
C. Analysis
¶ 34 As applicable here, the mandatory sentencing range for second
degree assault with a deadly weapon is five to sixteen years.
§ 18-3-203(2)(b); § 18-1.3-406(2)(a)(I)(A), (2)(a)(II)(C), C.R.S. 2025
(defining second degree assault with a deadly weapon as a crime of
violence); § 18-1.3-401(1)(a)(V.5)(A), (8)(a)(I), (10)(a), (10)(b)(XII),
15 C.R.S. 2025 (outlining the presumptive sentencing range for class 4
felonies and aggravated sentencing ranges for crimes of violence
and extraordinary risk crimes).
¶ 35 Although the court sentenced Palermo within the statutory
range, he contends that the court improperly considered statements
from the victim and her mother that Palermo forced himself on the
victim while precluding Palermo and his mother from introducing
rebuttal information about the victim’s consent.
¶ 36 But, as indicated in the record, the court explicitly
acknowledged testimony from Palermo’s mother that the victim’s
mother had previously said that the victim consented to a sexual
relationship with Palermo. And the court permitted Palermo to
point out discrepancies in the victim’s account of events, his
perception that he and the victim had a consensual relationship,
and his position that he didn’t physically attack or force himself on
the victim. Additionally, the court noted that it had reviewed the
presentence investigation report and the sex offense-specific
evaluation, both of which provided Palermo’s version of events,
including his assertion that his relationship with the victim was
consensual. The record thus refutes Palermo’s assertion that he
16 and his mother were precluded from introducing evidence of
consent at the sentencing hearing. And Palermo fails to explain
how the court otherwise relied on inaccurate information in
imposing his sentence.
¶ 37 After considering all of the above information, the court
indicated it had concerns about Palermo’s four prior felony
convictions, including a prior conviction for a sexual offense
involving a minor, and lack of accountability for his actions in this
case. Palermo doesn’t challenge the appropriateness of these other
sentencing considerations. See Torrez, ¶ 73. In any event, the
court wasn’t required to discuss each factor relevant to its decision;
it was only required to provide a reasonable explanation for its
sentencing decision. See id. at ¶ 74; see also People v. Myers, 45
P.3d 756, 757 (Colo. App. 2001) (“The fact that a sentencing court
finds aggravating factors to be more compelling than mitigating
factors does not constitute an abuse of discretion or indicate that
the trial court failed to consider evidence of mitigation.”).
¶ 38 Because Palermo’s sentence falls within the statutory range,
was based on appropriate considerations, and is supported by the
17 circumstances of the case, we won’t substitute our judgment for
that of the district court. See Fuller, 791 P.2d at 708.
V. Disposition
¶ 39 The sentence is affirmed.
JUDGE TOW and JUDGE LUM concur.