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 August 19, 2021
2021COA112
No. 18CA1934, People v. Jennings — Judges — Code of Judicial Conduct — Disqualification — Actual Bias
In this case, the defendant pleaded guilty to a felony drug
offense. She appeals the judgment of conviction on various
grounds, including that the trial court exhibited actual bias. A
division of the court of appeals holds, as a matter of first
impression, that a guilty plea does not waive review of a claim that
the trial court was disqualified due to actual bias. The division
concludes, however, that the record does not show the trial court
was actually biased. Because the division also concludes that the
defendant’s guilty plea precludes review of her other challenges, the
judgment is affirmed. COLORADO COURT OF APPEALS 2021COA112
Court of Appeals No. 18CA1934 Adams County District Court No. 16CR3637 Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Amber Leigh Jennings,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE NAVARRO Brown and Vogt*, JJ., concur
Announced August 19, 2021
Philip J. Weiser, Attorney General, Daniel Rheiner, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Laura E. H. Harvell, Alternate Defense Counsel, Grand Junction, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 Defendant, Amber Leigh Jennings, appeals the judgment of
conviction entered on her guilty plea to possession of a controlled
substance with intent to manufacture or distribute. Among other
contentions, she argues that the trial court demonstrated actual
bias in the proceedings prior to her guilty plea. A guilty plea,
however, generally waives appellate review of issues that arose prior
to the plea. So we must decide whether a claim that the trial court
was actually biased is an exception to that general rule. We
conclude that it is. Still, we are not persuaded that the record
shows the court was actually biased. Because we also conclude
that Jennings’s guilty plea precludes review of her other challenges
to her conviction, we affirm.
I. Background
¶2 Following a traffic stop and search of her vehicle, Jennings
was charged with eleven counts related to possession of illicit drugs
and firearms, as well as possession of a weapon by a previous
offender.
¶3 After Jennings fired her first retained attorney, the trial court
allowed him to withdraw and accepted Jennings’s newly retained
attorney as a substitute. Jennings later filed a pro se motion to
1 dismiss her second retained attorney. At first, the trial court took
no action on the motion except to issue a written order explaining
that Jennings could fire her second retained attorney at any time
but the court would not appoint counsel or continue the trial date.
The court reasoned that Jennings had “successfully avoided trials
in these matters for nearly two years by discharging her previous
court appointed attorney and failures to appear” and, thus, if
Jennings discharged her second retained attorney, “she will either
have to hire substitute counsel who can be prepared to try this case
o[n] the date scheduled, or she will have to proceed as her own
counsel.”
¶4 At a hearing approximately three weeks after Jennings filed
her motion to dismiss her second retained attorney, however, the
trial court noted that it had mistakenly believed her first retained
attorney had been appointed. The court allowed her second
retained attorney to withdraw and appointed the public defender’s
office to represent Jennings. A public defender then entered his
appearance.
¶5 A month later, Jennings asked for appointment of alternate
defense counsel to replace the public defender due to a “conflict”
2 with him. In a written order, the court said it was “convinced that
even if another attorney were to be appointed, the same issues
would occur.” The court denied Jennings’s motion “[a]t this point”
but noted that it would address the matter at an upcoming motions
hearing. At that hearing, however, counsel for the parties revealed,
in Jennings’s presence, that they had reached a tentative
disposition and requested a short continuance. The court thus
vacated the hearing without addressing the motion for alternate
defense counsel.
¶6 At an ensuing providency hearing, Jennings pleaded guilty to
possession of methamphetamine with intent to manufacture or
distribute. Before doing so, she confirmed that no one had forced
her to plead guilty, and she expressed no concerns with her
attorney. The court advised her that, by pleading guilty, she would
waive various rights, including the right to appeal. She said she
understood, and the court accepted her guilty plea.
II. Appellate Review Following a Guilty Plea
¶7 Jennings raises three claims: (1) the trial court’s refusal to
immediately appoint the public defender after Jennings moved to
dismiss her second retained attorney “constituted a denial of
3 counsel of choice” because it forced her to keep her second retained
attorney for nearly a month; (2) the court erred by denying her
request for alternate defense counsel to replace the public defender
without holding a hearing as per People v. Bergerud, 223 P.3d 686
(Colo. 2010); and (3) the court exhibited actual bias against her.
We conclude that Jennings’s guilty plea precludes review of the first
two issues but not the third.
A. General Principles
¶8 A guilty plea is an admission of all the elements of a criminal
charge. Neuhaus v. People, 2012 CO 65, ¶ 8. A “guilty plea
represents a break in the chain of events which has preceded it in
the criminal process,” after which a defendant may not raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. Id.
(quoting Tollett v. Henderson, 411 U.S. 258, 266-67 (1973)).
Therefore, a defendant must plead not guilty and go to trial to
preserve appellate review of challenges to pretrial proceedings. Id.
¶9 But, while a guilty plea generally waives appellate review of
issues that arose prior to the plea, “exceptions exist to this general
rule.” People v. McMurtry, 122 P.3d 237, 240 (Colo. 2005). “One
4 such exception” is a challenge to the trial court’s subject matter
jurisdiction, which may be raised at any time. Id. Another
exception applies where double jeopardy principles preclude the
prosecution from haling the defendant into court on the charge.
See Patton v. People, 35 P.3d 124, 128 (Colo. 2001).
¶ 10 The question becomes, then, whether Jennings’s appellate
challenges fall within an exception to the rule precluding review.
B. Application to Jennings’s Case
1. Right to Counsel of Choice and to Appointment of Alternate Defense Counsel
¶ 11 We turn first to Jennings’s contention that the trial court
violated her constitutional right to counsel of choice by not
immediately appointing the public defenders’ office when she moved
to dismiss her second retained attorney. This alleged error arose
prior to Jennings’s guilty plea, and she does not contend that it is
jurisdictional. Instead, Jennings argues that this challenge was not
waived by her guilty plea because, unlike the statutory speedy trial
claim at issue in McMurtry, her challenge concerns an important
constitutional right, the improper denial of which constitutes
structural error. See McMurtry, 122 P.3d at 242 (concluding that a
5 guilty plea precludes review of an alleged deprivation of the
statutory right to speedy trial, in part because this right may be
waived).
¶ 12 Jennings is correct that the erroneous deprivation of the right
to counsel of choice qualifies as structural error. See United States
v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Even fundamental
rights can be waived, however, regardless of whether the
deprivation thereof would otherwise constitute structural error.
Stackhouse v. People, 2015 CO 48, ¶ 8.
¶ 13 “By pleading guilty, a defendant waives a number of important
constitutional rights,” including some that could lead to structural
error if erroneously denied (e.g., the rights to trial by jury and a
public trial). Patton, 35 P.3d at 128; cf. Sullivan v. Louisiana, 508
U.S. 275, 281-82 (1993) (erroneous deprivation of the right to trial
by jury constitutes structural error); Stackhouse, ¶ 7 (same as to
right to public trial). In other words, a guilty plea waives
fundamental Sixth Amendment rights, among others, unless the
claim relates directly to the adequacy of the guilty plea (i.e., whether
it was knowing, voluntary, and intelligent). People v. Stovall, 2012
COA 7M, ¶ 16.
6 ¶ 14 As a result, a defendant’s guilty plea precludes review of a
claim that they were denied the right to counsel of choice when the
claim does not relate directly to the adequacy of the plea. See
People v. Isham, 923 P.2d 190, 194-95 (Colo. App. 1995) (“[T]he trial
court’s erroneous disqualification of counsel here does not require
that defendant’s guilty plea be vacated, absent evidence that the
plea was involuntary or unintelligently made.”); see also United
States v. Montemayor, 815 F. App’x 406, 409 (11th Cir. 2020)
(holding that the defendant’s guilty plea waived his challenge to
whether the district court properly disqualified his previous
counsel). Jennings did not challenge the adequacy of her guilty
plea in the trial court, nor does she do so on appeal. Thus, she
waived her independent claim that the court denied her right to
counsel of choice.
¶ 15 The same goes for Jennings’s claim that the trial court should
have appointed alternate defense counsel when an alleged conflict
arose with the public defender, her third attorney. Jennings argues
that, because alternate defense counsel was not appointed, she was
forced to proceed with conflicted counsel. But a defendant’s right to
conflict-free counsel is a subset of the right to effective assistance of
7 counsel, see People v. Curren, 228 P.3d 253, 258 (Colo. App. 2009),
and a guilty plea waives review of an ineffective assistance of
counsel claim unless it relates directly to the adequacy of the plea
itself, see Stovall, ¶¶ 16-17; see also State v. Villegas, 908 N.W.2d
198, 215 n.19 (Wis. Ct. App. 2018) (collecting cases supporting this
proposition). To reiterate, Jennings does not contend that her
guilty plea was invalid in that it was not knowingly, intelligently,
and voluntarily made. Therefore, by pleading guilty, she waived her
stand-alone claim that the court erred by not replacing her allegedly
conflicted counsel. See People v. Canales, 408 N.E.2d 299, 302 (Ill.
App. Ct. 1980); State v. LaRue, 619 N.W.2d 395, 397-98 (Iowa
2000).
¶ 16 Given all this, we will not resolve Jennings’s claims about her
counsel. See People v. Butler, 251 P.3d 519, 520 (Colo. App. 2010).
2. Alleged Bias of the Tribunal
¶ 17 We reach a different conclusion as to Jennings’s claim that the
trial court was actually biased. Answering a novel question in
Colorado, we conclude that her guilty plea did not waive her claim
of actual bias.
8 ¶ 18 Basic to our system of justice is the principle that a judge
must be free of all taint of bias and partiality. People v. Mentzer,
2020 COA 91, ¶ 5. But there is a difference between a judge who
has the appearance of impropriety and a judge who has actual bias.
See People in Interest of A.G., 262 P.3d 646, 650-51 (Colo. 2011).
¶ 19 Regarding the former, the Code of Judicial Conduct requires a
judge to recuse “in any proceeding in which the judge’s impartiality
might reasonably be questioned.” Id. at 650 (quoting C.J.C.
2.11(A)). Even though a judge who appears to be partial may, in
fact, be able to act impartially, “the judge is disqualified nonetheless
because a reasonable observer might have doubts about the judge’s
impartiality.” Id. The purpose behind disqualifying a judge who
has the appearance of partiality is to protect public confidence in
the judiciary. See id.; People v. Gallegos, 251 P.3d 1056, 1063
(Colo. 2011). The litigants to a case, however, may waive
disqualification based on the appearance of impropriety. A.G., 262
P.3d at 650; C.J.C. 2.11(C).
¶ 20 Actual bias is different; it is bias “that in all probability will
prevent [a judge] from dealing fairly with a party.” A.G., 262 P.3d at
650 (quoting People v. Julien, 47 P.3d 1194, 1197 (Colo. 2002))
9 (alteration in original). A claim of actual bias focuses on the
subjective motivations of the judge. Id. at 651. The Code of
Judicial Conduct requires disqualification when a judge “has a
personal bias or prejudice concerning a party or a party’s
lawyer . . . .” C.J.C. 2.11(A)(1). Additionally, under section 16-6-
201(1)(d), C.R.S. 2020, and Crim. P. 21(b)(1)(IV), a judge shall be
disqualified if the judge is “in any way interested or prejudiced with
respect to the case, the parties, or counsel.” Mentzer, ¶ 6 (citations
omitted). Unlike disqualification based on the appearance of
impropriety, the provisions requiring disqualification in cases of
actual bias are intended to ensure that litigants receive a fair and
impartial trial. A.G., 262 P.3d at 651.
¶ 21 “Consequently, there is no provision to waive disqualification
when actual bias is the concern.” Id.; see C.J.C. 2.11(C) (“A judge
subject to disqualification under this Rule, other than for bias or
prejudice under paragraph (A)(1), . . . may ask the parties and their
lawyers to consider, outside the presence of the judge and court
personnel, whether to waive disqualification.”) (emphasis added).
Because disqualification based on actual bias cannot be waived, a
claim of actual bias may be reviewed on appeal even where the
10 parties did not properly raise the issue in the trial court. See, e.g.,
People v. Dobler, 2015 COA 25, ¶ 7.
¶ 22 In light of the above principles, the question remains whether
a valid guilty plea waives a claim of actual bias that arose prior to
the plea. The parties do not cite, and we have not found, conclusive
Colorado authority on this issue. As a result, we look to other
jurisdictions for guidance. See Julien, 47 P.3d at 1198 (considering
federal precedent applying judicial disqualification provisions
similar to Colorado’s).
¶ 23 The United States Code provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). A federal judge “shall also
disqualify himself . . . [w]here he has a personal bias or prejudice
concerning a party . . . .” § 455(b)(1). As in Colorado, federal law
distinguishes between the appearance of partiality and actual bias
with respect to whether disqualification can be waived: “No justice,
judge, or magistrate judge shall accept from the parties to the
proceeding a waiver of any ground for disqualification enumerated
in subsection (b). Where the ground for disqualification arises only
11 under subsection (a), waiver may be accepted . . . .” § 455(e). That
is, while this federal statute permits waiver of disqualification based
on an appearance of impropriety, it does not permit waiver of
disqualification based on actual bias.
¶ 24 Applying these provisions, the Tenth Circuit has held that a
guilty plea waives an appearance of impropriety claim under section
455(a) but not a claim of bias under section 455(b). United States v.
Gipson, 835 F.2d 1323, 1324-25 (10th Cir. 1988). The court
reasoned that “[i]f a party can waive recusal, it would follow that
denial of recusal is a pretrial defect which is sublimated within a
guilty plea and thereafter unavailable as an issue for appeal.” Id. at
1325. In contrast, the court concluded that the provision
precluding waiver of recusal based on actual bias “creates what is
tantamount to a ‘jurisdictional limitation’ on the authority of a
judge to participate in a given case.” Id.
¶ 25 The Seventh Circuit has also recognized that “[a] charge of
actual bias is not waived when a defendant pleads guilty.” United
States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989); cf. O’Connor v.
State, 789 N.E.2d 504, 510 (Ind. Ct. App. 2003) (declining to reach
the defendant’s constitutional claims because he pleaded guilty but
12 still addressing his claim that the trial court demonstrated bias
against him). We have found no authority holding that a guilty plea
waives a claim that a judge was disqualified due to actual bias or
prejudice concerning a party.
¶ 26 Given the Colorado authorities providing that a claim of actual
judicial bias cannot be waived, as well as the authorities from other
jurisdictions applying similar provisions in the guilty plea context,
we are convinced that a guilty plea does not waive review of an
actual bias claim even if the claim arose prior to the plea. So, we
turn to the merits of Jennings’s claim.
III. Jennings’s Actual Bias Claim
¶ 27 We examine the disqualification question de novo. Julien, 47
P.3d at 1197.
¶ 28 To reiterate, actual bias is bias that in all probability will
prevent a judge from dealing fairly with a party. A.G., 262 P.3d at
650. “[A] defendant asserting bias on the part of a trial judge must
establish that the judge had a substantial bent of mind against him
or her.” People v. Drake, 748 P.2d 1237, 1249 (Colo. 1988). The
record must establish such bias clearly; mere speculative
statements and conclusions are not enough. Id.
13 ¶ 29 Jennings first argues that the judge was biased against her
because the judge repeatedly declined to reduce her $250,000
bond. But a judge’s prior rulings, even if erroneous, do not alone
indicate partiality. See People v. Schupper, 2014 COA 80M, ¶ 58
(recognizing that “rulings of a judge, although erroneous, numerous
and continuous, are not sufficient in themselves to show bias or
prejudice”) (citation omitted); People v. Schupper, 124 P.3d 856,
859-60 (Colo. App. 2005) (explaining that the trial court’s rulings,
“whether rightly or wrongly decided,” are not pertinent to recusal
issues), aff’d, 157 P.3d 616 (Colo. 2007); see also Liteky v. United
States, 510 U.S. 540, 555 (1994). Furthermore, the judge here did
not act arbitrarily and without offering a reason. Instead, the judge
denied the motions due to Jennings’s prior failures to appear.
¶ 30 Jennings next contends that the judge exhibited bias
warranting recusal when he expressed displeasure with her second
retained attorney. When allowing that attorney to withdraw, the
judge remarked,
I’m not happy with the way you’ve handled this, [second retained attorney]. Because I’ve not heard from you in two months. Even though [Jennings has] written a letter, we’ve gotten nothing from you. And, quite frankly,
14 when I saw you enter in this case I knew there were going to be issues because there are almost always issues with you.
I’m sorry to say it but that’s just the view from the Judge. And maybe that’s something that you can take out of this Court and use, but I doubt that you will.
Generally, however, a judge’s “demonstration of prejudice against
the lawyer for the defendant does not require recusal.” Brewster v.
Dist. Ct., 811 P.2d 812, 814 (Colo. 1991). That is, although conflict
between the judge and counsel may sometimes warrant
disqualification, it is necessary only where the judge’s manifestation
of hostility or ill will toward an attorney indicates the absence of
impartiality required for a fair trial. Id.; see Bocian v. Owners Ins.
Co., 2020 COA 98, ¶ 24. For instance, in Brewster — a case on
which Jennings relies — the trial judge held defense attorneys in
contempt based on unsupported allegations and then capriciously
denied the prosecution’s motion to dismiss the charge against the
defendant. See 811 P.2d at 814. The supreme court decided that
those circumstances were so troubling as to warrant the judge’s
disqualification. See id.
15 ¶ 31 The record here reflects nothing so egregious. The judge
criticized Jennings’s second retained attorney in passing as he was
leaving the case. This brief reproach, while ungenerous, did not
reflect such intense hostility as to require recusal. Cf. Drake, 748
P.2d at 1249 (concluding that, while the record revealed the trial
court’s rude comments to defense counsel and irritation with
defense witnesses, the record as a whole did not establish that bent
of mind warranting a finding of bias against the defendant). And
Jennings points to nothing in the record supporting her claim that
the judge transferred his displeasure with her second retained
attorney to her. Cf. Parsons v. Allstate Ins. Co., 165 P.3d 809, 819
(Colo. App. 2006) (“[M]ere opinions or conclusions that the judge is
biased are insufficient.”). While Jennings highlights the judge’s
frustration with her repeated attempts to change lawyers — an
issue to which we will turn next — this frustration plainly related to
Jennings’s decisions, not her second retained attorney’s.
¶ 32 Last, Jennings contends that the trial judge demonstrated
actual bias against her when appointing the public defender’s office
after allowing her second retained attorney to withdraw. The judge
noted that Jennings faced “very serious charges” (including level 1
16 and 2 drug felonies), and the judge said, “She’s a very difficult
client. And so somebody needs to see her between now and Friday
[her next scheduled court appearance]. This is not your ordinary
client. . . . She’s already fired two private counsel . . . .” Jennings
maintains that the judge’s comments were “inappropriate and
unnecessary.” Even if so, the comments fell short of requiring
recusal. They were rooted in the events of the proceedings —
Jennings had indeed fired two private attorneys over the course of
six months and she faced serious charges.
[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
Dobler, ¶ 25 (quoting Liteky, 510 U.S. at 555); see People in Interest
of S.G., 91 P.3d 443, 448 (Colo. App. 2004). In our view, the judge’s
comments were relatively mild; they did not reflect a deep-seated
antagonism toward Jennings that rendered the proceedings
inexorably unfair. See also Smith v. Dist. Ct., 629 P.2d 1055, 1057
(Colo. 1981) (“Prejudice must be distinguished from the sort of
17 personal opinions that as a matter of course arise during a judge’s
hearing of a cause.”).
¶ 33 In sum, we do not perceive actual bias or prejudice on the trial
judge’s part.
IV. Conclusion
¶ 34 The judgment is affirmed.
JUDGE BROWN and JUDGE VOGT concur.