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 November 29, 2018
2018COA168
No. 16CA1165, People v. Lancaster — Criminal Procedure — Appearance of Counsel — Termination of Representation; Attorneys and Clients — Ineffective Assistance of Counsel
A criminal defendant and his trial counsel executed a fee
agreement providing that the representation of counsel terminates
at the conclusion of trial. Following trial, trial counsel informed
defendant that he would not represent him on appeal, but trial
counsel did not move to withdraw from the representation.
Defendant did not thereafter timely file a notice of direct appeal.
In this opinion, the division addresses an issue of first
impression: whether trial counsel’s failure to perfect the defendant’s
appeal constituted ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668 (1984), such that defendant is entitled
to file his direct appeal out of time. The division concludes that, under People v. Baker, 104 P.3d 893 (Colo. 2005), trial counsel’s
representation of a criminal defendant terminates only as provided
under Crim. P. 44(e), notwithstanding the fee agreement, and,
therefore, trial counsel’s duty to perfect the defendant’s appeal is
not discharged until the representation terminates pursuant to
Crim. P. 44(e). COLORADO COURT OF APPEALS 2018COA168
Court of Appeals No. 16CA1165 Jefferson County District Court No. 06CR1949 Honorable Todd L. Vriesman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Larry Gene Lancaster,
Defendant-Appellant.
ORDER REVERSED
Division I Opinion by JUDGE WELLING Taubman and Bernard, JJ., concur
Announced November 29, 2018
Cynthia H. Coffman, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Larry Gene Lancaster, contends that the district
court erroneously denied his Crim. P. 35(c) motion alleging that his
trial counsel was ineffective for failing to perfect his appeal. We
agree and, therefore, reverse the district court’s order denying
Lancaster’s Crim. P. 35(c) motion and order that Lancaster is
entitled to file his direct appeal out of time.
I. Background
¶2 In 2006, Lancaster was arrested after a teenage boy reported
that Lancaster had provided him with marijuana and alcohol and
initiated sexual contact. A second teenage boy later came forward
with similar allegations. Lancaster was charged with sexual assault
on a child (two counts), bribing a witness or victim (two counts),
sexual assault, unlawful sexual contact, and contributing to the
delinquency of a minor.
¶3 In May 2007, Lancaster went to trial. He was represented at
trial by Steven Newell. Newell and Lancaster executed a fee
agreement detailing the scope of Newell’s representation. The
termination provision of that fee agreement provided as follows:
Under Colorado Court rules, representation is terminated at the conclusion of trial court proceedings, which essentially is after a
1 finding of not guilty or a sentencing, unless otherwise directed by the Court or by agreement between you and Newell Vonachen and Weeks to represent you beyond that point.
¶4 The jury ultimately found Lancaster guilty on six of the seven
counts. In October 2007, he received an indeterminate sentence of
fourteen years to life. In December 2007, Lancaster filed a motion
requesting additional presentence confinement credit. In that
motion, Lancaster described himself as pro se. Neither he nor
Newell filed a notice of appeal.
¶5 In September 2010, Lancaster filed a pro se Crim. P. 35(c)
motion alleging that his trial counsel had been constitutionally
ineffective by failing to file a notice of appeal. In his motion,
Lancaster requested the appointment of postconviction counsel.
The district court appointed the public defender to represent him in
the postconviction proceedings.
¶6 Neither the public defender nor the district court took any
action on Lancaster’s Crim. P. 35(c) motion for more than five years.
In February 2016, sixty-four months after Lancaster’s original
motion was filed, postconviction counsel filed a supplemental Crim.
P. 35(c) motion. In the supplemental motion, Lancaster renewed
2 the ineffective assistance of trial counsel claim from his September
2010 motion and added five additional claims. The district court
ruled that the additional claims were time barred, but it held an
evidentiary hearing on Lancaster’s first claim — that his trial
counsel’s failure to perfect his appeal deprived him of
constitutionally effective trial counsel. As reflected in the district
court’s subsequent order, Lancaster based his claim on “ABA
recommended standards regarding criminal justice practice,” not
“Crim. P. 44 or . . . case law regarding ineffective assistance of
counsel.”
¶7 Newell and Lancaster testified at the hearing. In a four-page
order issued on May 26, 2016, the district court found that
Lancaster had met with Newell after his conviction but before
sentencing and stated his desire to appeal his conviction. The
district court also found that Newell met with Lancaster three times
after trial, during which time Newell “made clear, in writing and
verbally, that he would not act as [Lancaster’s] attorney for an
appeal.” Based on its conclusion that Newell’s representation
terminated before the alleged ineffective assistance occurred, the
3 district court denied Lancaster’s ineffective assistance of trial
counsel claim.
¶8 This appeal followed.
II. Analysis
¶9 On appeal, Lancaster relies on People v. Baker, 104 P.3d 893
(Colo. 2005), contending that Newell was constitutionally ineffective
in failing to file a notice of appeal on his behalf. The People respond
that Lancaster’s ineffective assistance claim must fail because
Newell’s attorney-client relationship with Lancaster terminated
pursuant to the undisputed terms of the fee agreement after
Lancaster was sentenced on October 1, 2007. In addition, the
People contend that Baker is distinguishable. We are unpersuaded
by either of the People’s contentions and conclude that Newell’s
failure to either file a notice of appeal on Lancaster’s behalf or
withdraw pursuant to Crim. P. 44(d) and secure the appointment of
the public defender to represent Lancaster on direct appeal
constituted ineffective assistance of trial counsel under Strickland v.
Washington, 466 U.S. 668 (1984).
4 A. Law
1. Ineffective Assistance on Appeal
¶ 10 The Sixth Amendment of the United States Constitution and
article II, section 16 of the Colorado Constitution guarantee the
effective assistance of counsel. Strickland, 466 U.S. at 686; Lanari
v. People, 827 P.2d 495, 500 (Colo. 1992). Claims of ineffective
assistance of counsel are governed by the test set forth in
Strickland. Under this test, a defendant must show that (1)
counsel’s representation “fell below an objective standard of
reasonableness” and (2) counsel’s deficient performance prejudiced
the defendant. Strickland, 466 U.S. at 688, 694.
¶ 11 Where a defendant’s claim is that trial counsel failed to perfect
an appeal, we do not analyze the merits of the defendant’s appellate
claims. See People v. Long, 126 P.3d 284, 286-87 (Colo. App. 2005).
Rather, a defendant who shows that counsel performed deficiently
in failing to perfect the defendant’s appeal will have established
both prongs of the Strickland test. Id. In Colorado, “the right to
direct appeal of a criminal conviction is fundamental,” Peterson v.
People, 113 P.3d 706, 708 (Colo. 2005), and “a lawyer who
disregards specific instructions from the defendant to file a notice of
5 appeal acts in a manner that is professionally unreasonable,” Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000). In such cases, “[t]he
prejudice resulting from the failure to file a notice of appeal is not in
the outcome of the proceeding itself, but in the forfeiture of the
proceeding itself.” Long, 126 P.3d at 286-87 (citing Flores-Ortega,
528 U.S. at 483).
2. Baker
¶ 12 The Baker court determined that good cause existed under
C.A.R. 26(b) to permit the defendant to pursue an untimely direct
appeal because trial counsel’s failure to perfect the defendant’s
appeal constituted ineffective assistance of counsel under
Strickland. 104 P.3d at 898. Baker warrants close examination.
¶ 13 Baker was convicted of multiple felony offenses. After
sentencing, he prepared a handwritten notice of appeal, which he
showed to his trial counsel. Baker and his counsel agreed that
counsel would not represent Baker on appeal, but counsel offered
to type and submit Baker’s notice of appeal “as a courtesy.” Id. at
895. But counsel ultimately failed to file the notice of appeal in the
correct court, and Baker’s appeal was thus not perfected. Id.
6 ¶ 14 Two years later, after Baker learned that the notice of appeal
had been incorrectly filed in the district court, he filed a new notice
of appeal. This court issued an order directing Baker to show cause
why the notice of appeal should not be dismissed for lack of
jurisdiction due to its untimeliness. Baker argued in response that
dismissal of his appeal would be unfairly prejudicial, as the failure
to file a timely notice of appeal was caused by the ineffective
assistance of his trial counsel, who had failed to perfect his direct
appeal. A division of this court dismissed his appeal as untimely.
Id.
¶ 15 Baker then petitioned the supreme court for relief pursuant to
C.A.R. 21. The supreme court issued a rule to show cause why his
appeal should not be accepted and ultimately concluded that the
court of appeals abused its discretion in rejecting Baker’s appeal. It
held that, notwithstanding counsel’s agreement with Baker that he
would not represent him on appeal, Crim. P. 44(e) dictated that
counsel’s responsibilities to his client did not end at sentencing. Id.
at 896. Crim. P. 44(e) provides as follows:
(1) Unless otherwise directed by the trial court or extended by an agreement between counsel and a defendant, counsel’s
7 representation of a defendant, whether retained or appointed, shall terminate at the conclusion of trial court proceedings and after a final determination of restitution. Trial court proceedings shall conclude at the point in time:
(I) When dismissal is granted by the court and no timely appeal has been filed;
(II) When an order enters granting a deferred prosecution, deferred sentence, or probation;
(III) After a sentence to incarceration is imposed upon conviction when no motion has been timely filed pursuant to Crim. P. 35(b) or such motion so filed is ruled on; or
(IV) When a notice of appeal is filed by the defendant.
¶ 16 In Baker, trial court proceedings had not concluded within the
meaning of subsection (I), (II), or (III) when the then-applicable
forty-five-day period for Baker to file a notice of appeal under C.A.R.
4(b) expired.1 Nor had appellate counsel been appointed. The
supreme court held that Baker’s trial counsel had, therefore,
provided constitutionally ineffective assistance under Strickland in
failing to properly file Baker’s notice of appeal. The supreme court
1In 2011, the rule was amended to allow forty-nine days. Rule Change 2011(19), Colorado Appellate Rules (Amended and Adopted by the Court En Banc, Dec. 14, 2011), https://perma.cc/KLV3- S9CE.
8 considered trial counsel’s ineffective assistance “as a factor
contributing to a finding of good cause” for permitting Baker to
pursue an untimely direct appeal. Id. at 897.
B. Reversal Is Required Under Baker
¶ 17 On appeal, the People contend that Newell’s failure to file a
notice of appeal on Lancaster’s behalf was not ineffective assistance
because Newell’s representation of him terminated when Lancaster
was sentenced on October 1, 2007. The People, in arguing that the
attorney-client relationship terminated before the alleged ineffective
assistance occurred, rely on the termination provision of the fee
agreement as well as Lancaster’s testimony describing his
understanding of when Newell’s representation of him ended. In
light of Baker, however, we conclude that Newell’s representation of
Lancaster did not terminate when the People contend, but instead,
as prescribed by Crim. P. 44(e), continued through the deadline for
filing a notice of appeal.
1. The Termination of Newell’s Attorney-Client Relationship with Lancaster is Controlled by Crim. P. 44(e), Not the Fee Agreement
¶ 18 In Baker, the supreme court held that, notwithstanding an
agreement between a defendant and trial counsel providing that
9 counsel would not represent the defendant on appeal, Crim. P. 44(e)
dictates when the representation terminates. See Baker, 104 P.3d
at 896 (“Even though counsel may have mistakenly believed that
because he had not agreed to represent Baker on appeal, his
responsibilities to his client ended at sentencing, . . . Crim. P. 44(e)
provides otherwise.”). Termination of representation pursuant to
Crim. P. 44(e) requires the occurrence of an event set forth in
subsections (I) through (IV) unless “otherwise directed by the trial
court or extended by an agreement between counsel and a
defendant.” (Emphasis added.) Crim. P. 44(e) does not, however,
contemplate any exception in cases where counsel and the
defendant have agreed to terminate the representation at an earlier
date — as in Baker and this case. To terminate representation
earlier requires leave of the court. See Crim. P. 44(d)(1).2
2 If Newell did not wish to file a notice of appeal on Lancaster’s behalf, Newell could have discharged his duty to Lancaster by timely moving to withdraw (for instance, at sentencing) and requesting the appointment of the public defender to represent Lancaster on appeal, as Lancaster automatically qualified for the services of the public defender by virtue of his custodial status following sentencing. Ronquillo v. People, 2017 CO 99, ¶ 34.
10 ¶ 19 In their brief on appeal, the People do not discuss Crim. P. 44.
Instead, the People argue that Lancaster’s testimony establishes
that Newell’s representation of him terminated in accordance with
the fee agreement. Specifically, they point to Lancaster’s testimony
at his Crim. P. 35(c) hearing in which he stated that, having met
with Newell prior to his sentencing hearing, he understood that
Newell would provide him no further assistance. But we disagree
that the attorney-client relationship terminated based upon
Lancaster’s subjective understanding.3
¶ 20 In support of their position, the People cite to People v.
Bennett, 810 P.2d 661, 664 (Colo. 1991) — a civil case — for the
proposition that counsel’s duty to a client continues “until the client
clearly understands, or reasonably should understand, that the
relationship is no longer to be depended upon.” This is not the
applicable standard in a criminal case, however. Were it the
standard, Crim. P. 44 subsections (d) (withdrawal of counsel) and
(e) (termination of representation) would be rendered superfluous.
3 We note that, although not raised by either party on appeal, the record shows that the district court did not discharge its duty at sentencing, pursuant to Crim. P. 44(e)(2), to “inform the defendant when representation shall terminate.”
11 See Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992,
995 (Colo. 2003) (interpretations that render statutory provisions
superfluous should be avoided); see also People v. Bueno, 2018 CO
4, ¶ 18 (rules of criminal procedure are construed employing the
same interpretive rules applicable to statutory construction). Yet
the People, in their appellate brief, do not attempt to reconcile their
position with Crim. P. 44. However, we conclude that Crim. P. 44(e)
is dispositive on the issue of when Newell’s representation of
Lancaster terminated.
2. Baker Is Not Meaningfully Distinguishable
¶ 21 The People contend that Baker is distinguishable, in any
event. They contend that Baker was “[b]ased on” the fact that
Baker’s trial counsel agreed to submit his notice of appeal but then
failed to do so. They argue that, because Newell never agreed to
submit Lancaster’s notice of appeal, there was no detrimental
reliance and, therefore, Baker is inapposite. While we agree that
Lancaster’s situation is different from Baker in this way, we
disagree that trial counsel’s agreement in this regard was material
to the holding in Baker.
12 ¶ 22 Trial counsel’s agreement to submit the notice of appeal was
immaterial to the outcome in Baker. Our supreme court held that
trial counsel was obligated to ensure that Baker’s appeal was
perfected because he was counsel of record when the period for
filing a notice of appeal under C.A.R. 4(b) expired. 104 P.3d at 896.
A careful reading of Baker makes clear that its holding in no way
hinged on Baker’s counsel’s agreement to file the notice of appeal as
a courtesy. Instead, the supreme court explained that trial counsel
remained Baker’s counsel of record because appellate counsel had
not been appointed, trial counsel had not moved to withdraw, and
the representation had not terminated pursuant to Crim. P. 44(e).
See id. at 896-97. Trial counsel’s agreement to type and submit
Baker’s notice of appeal was immaterial to the holding because the
court concluded that counsel had a duty to ensure that Baker’s
appeal was perfected. See id.
¶ 23 Baker is not, therefore, meaningfully distinguishable based on
the fact that Newell did not offer to submit Lancaster’s notice of
appeal. Instead, because he remained Lancaster’s counsel of record
until he withdrew or the representation terminated — neither of
which happened before the period for Lancaster to file a notice of
13 appeal under C.A.R. 4(b) expired — Newell, knowing that Lancaster
wanted to appeal, had a duty to ensure that Lancaster’s appeal was
perfected. See id.
3. Newell’s Failure to File Lancaster’s Notice of Appeal Was Ineffective Assistance of Counsel
¶ 24 Newell’s failure to file a notice of appeal on Lancaster’s behalf
without having been granted leave to withdraw amounted to
constitutionally ineffective assistance of counsel under Strickland.
Both prongs of the Strickland test are satisfied because Lancaster
has shown that Newell disregarded specific instructions to file a
notice of appeal. See Long, 126 P.3d at 286-87.
¶ 25 We review the district court’s factual findings for abuse of
discretion, but review de novo the application of law to those factual
findings. Carmichael v. People, 206 P.3d 800, 807-08 (Colo. 2009).
¶ 26 The district court held an evidentiary hearing on Lancaster’s
Rule 35(c) petition at which it heard testimony from both Newell
and Lancaster. Based on this testimony, the district court found
that Lancaster had communicated to Newell his desire to appeal.
Indeed, the record establishes that Lancaster wanted to appeal and
that Newell understood that desire. Furthermore, based on the
14 discussion in Part II.B.2 of this opinion, Newell had a duty following
sentencing to ensure that Lancaster’s appeal was perfected. For
these reasons, we conclude that Lancaster has established
ineffective assistance of counsel. See Baker, 104 P.3d at 897; Long,
126 P.3d at 287; see also People v. Houser, 2013 COA 11, ¶ 42 n.5
(noting that counsel’s “failure to perfect an appeal for a defendant
who desired to appeal would be per se unreasonable”). Accordingly,
we reverse the district court’s order denying Lancaster’s
postconviction motion alleging ineffective assistance of counsel.
C. Lancaster Is Entitled to Pursue His Direct Appeal Out of Time
¶ 27 Because the ineffective assistance of trial counsel deprived
Lancaster of his right to direct appeal of his conviction, we conclude
that he is entitled to pursue a direct appeal out of time. See
Peguero v. United States, 526 U.S. 23, 28 (1999) (“[W]hen counsel
fails to file a requested appeal, a defendant is entitled to . . . an
appeal without showing that his appeal would likely have had
merit.”); People v. Hill, 296 P.3d 121, 125 (Colo. App. 2011) (the
remedy for a defendant whose counsel failed to perfect an appeal is
reinstatement of the defendant’s right to an appeal); Long, 126 P.3d
at 287 (same). Pursuant to C.A.R. 4(b), Lancaster has forty-nine
15 days from the issuance of our mandate in which to file his direct
appeal. People v. Boespflug, 107 P.3d 1118, 1121 (Colo. App.
2004).
D. Lancaster’s Other Claims
¶ 28 Because we conclude that trial counsel’s failure to perfect
Lancaster’s appeal was ineffective assistance under Strickland
entitling Lancaster to pursue a direct appeal, we need not and do
not reach his additional claim in which he contends that the
postconviction court erroneously denied the claims brought in his
supplemental Crim. P. 35(c) motion as time barred.
III. Conclusion
¶ 29 For these reasons, we reverse the postconviction court’s order
denying Lancaster’s Crim. P. 35(c) motion. Based on this
disposition, Lancaster may file his notice of direct appeal in this
court within forty-nine days from issuance of the mandate, as
provided by C.A.R. 4(b).
JUDGE TAUBMAN and JUDGE BERNARD concur.