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 26, 2020
2020COA47
No. 17CA1060, People v. Wardell — Criminal Procedure — Presence of the Defendant — Postconviction Remedies
A division of the court of appeals considers whether a
defendant has a constitutional right or right by rule to be present in
person at a Crim. P. 35(c) evidentiary hearing. The division
concludes that a defendant does not have such a right. Rather,
whether to grant a defendant’s request to be present in person at a
postconviction hearing is an issue within the postconviction court’s
discretion. In this case, the division concludes that the
postconviction court did not abuse its discretion in denying
defendant’s request to be physically present because defendant was
in federal prison out of state and defendant had agreed to testify
telephonically. COLORADO COURT OF APPEALS 2020COA47
Court of Appeals No. 17CA1060 Larimer County District Court No. 94CR776 Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wendel Robert Wardell, Jr.,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE ROMÁN Dunn and Rothenberg*, JJ., concur
Announced March 26, 2020
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Victor T. Owens, Alternate Defense Counsel, Parker, 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. 2019. ¶1 Defendant, Wendel Robert Wardell, Jr., asserts that he had
the right to appear at a Crim. P. 35(c) postconviction hearing, that
he sufficiently established ineffective assistance of counsel, and
that his plea in this case was involuntary. Deciding an issue of first
impression in Colorado, we conclude that a defendant does not
have a right to appear in person at a Crim. P. 35(c) evidentiary
hearing. Rather, whether a defendant may appear in person is
subject to the postconviction court’s discretion. In this case, we
conclude that the postconviction court did not abuse its discretion
when it denied defendant’s request to be present in person at the
Crim. P. 35(c) evidentiary hearing. We also reject defendant’s
substantive Rule 35(c) claims. Thus, we affirm.
I. Background
¶2 This case comes to us with a tortuous procedural history. In
1994, defendant pled guilty to one count of fraud by check and was
sentenced to eighteen months in prison. Subsequently, he
appealed the denial of a pre-plea motion to dismiss the case, which
was affirmed by another division of this court in People v. Wardell,
(Colo. App. No. 95CA0049, Apr. 18, 1996) (not published pursuant
to C.A.R. 35(f)).
1 ¶3 In 1996, defendant filed a pro se motion for appointment of
counsel for the purpose of pursuing a Crim. P. 35(c) motion based
upon alleged ineffective assistance of his plea counsel and appellate
counsel. The postconviction court denied the motion, finding no
meritorious claim for relief under Crim. P. 35(c). Defendant
appealed that ruling, and a division of this court affirmed in People
v. Wardell, (Colo. App. No. 96CA1274, Mar. 19, 1998) (not
published pursuant to C.A.R. 35(f)).
¶4 In 1998, defendant, again acting pro se, filed a Crim. P. 35(c)
motion based upon the following allegations: (1) defendant had been
denied the effective assistance of his plea counsel; (2) he had been
denied the effective assistance of his second appellate counsel; and
(3) his guilty plea was involuntary as a result of the ineffective
assistance of his plea counsel. The postconviction court denied the
motion without a hearing, finding that the basis for that motion was
the same as that which had been raised by prior motions and
denied by the court.
¶5 In 2000, another division of this court affirmed in part,
reversed in part, and remanded the case with instructions based on
the trial court’s failure to appoint postconviction counsel or hold an
2 evidentiary hearing. People v. Wardell, slip op. at 9 (Colo. App. No.
99CA1040, Oct. 12, 2000) (not published pursuant to C.A.R. 35(f)).
The division instructed the postconviction court “to appoint counsel
to represent defendant at an evidentiary hearing to determine: (1)
whether defendant’s plea counsel provided ineffective assistance by
threatening to withdraw if defendant did not plead guilty; and (2)
whether counsel’s alleged threats rendered defendant’s guilty plea
involuntary.” Id. The division also instructed the court on remand
to “enter findings of fact and conclusions of law with respect to
these two issues.” Id.
¶6 The postconviction court issued an order again denying
defendant’s Rule 35(c) motion without an evidentiary hearing.
Instead, the postconviction court relied on appointed counsel’s
written representation that defendant lacked a meritorious claim.
On appeal, a division of this court found that the postconviction
court erred and remanded the case for an evidentiary hearing in
accordance with the instructions from the 2000 Wardell decision.
See People v. Wardell, (Colo. App. No. 13CA0926, Aug. 20, 2015)
(not published pursuant to C.A.R. 35(f)).
3 ¶7 Back on remand, prior to the evidentiary hearing, defendant
requested that the postconviction court issue a writ to bring him
from federal prison in South Carolina to the hearing.1 The
postconviction court denied defendant’s request.
¶8 The postconviction court then held an evidentiary hearing and
allowed defendant to present postconviction claims from two cases
— this case and 92CR995 — because defendant’s motions relied on
the same or similar factual arguments; namely, that defendant was
coerced into pleading guilty in this case and that, as a result, his
plea was not voluntary.2
¶9 At the hearing, defendant appeared and testified telephonically
and was represented in person by counsel. The only evidence
presented to the postconviction court was defendant’s testimony.
1 To writ the defendant in this case, the postconviction court would have issued an order requiring that defendant be transported from federal prison in South Carolina to the hearing in Colorado. 2 In 92CR995, defendant pled guilty to theft by check in exchange
for deferred judgment and sentence. When defendant pled guilty in this case, he confessed the motion to revoke deferred judgment and sentencing. Therefore, defendant’s claims of coercion affect both this case and 92CR995.
4 ¶ 10 In separate orders, the postconviction court denied all of
defendant’s postconviction claims in this case and in 92CR995.
Defendant now appeals.3
II. Analysis
¶ 11 Defendant contends the postconviction court erred by denying
his request to appear in person at the evidentiary hearing. To
address defendant’s claim, we must first consider whether a
defendant has a right to be present in person at such a hearing.
A. Does Defendant Have a Right to be Present in Person at a Postconviction Hearing?
¶ 12 We hold that in Colorado a defendant does not have a right to
be present in person at a Crim. P. 35(c) hearing. This is true
whether analyzed as a constitutional right or right by rule.
¶ 13 “Both the United States Constitution and the Colorado
Constitution ‘guarantee the right of a criminal defendant to be
present at all critical stages of the prosecution.’” Zoll v. People,
2018 CO 70, ¶ 19 (quoting People v. White, 870 P.2d 424, 458 (Colo.
1994)). However, the right to presence is not absolute, nor does
3Defendant appeals both orders. We resolve the companion case in a separate opinion, People v. Wardell, (Colo. App. No. 17CA1059, Mar. 26, 2020) (not published pursuant to C.A.R. 35(e)). 5 every criminal proceeding constitute a “critical stage.” See id. at
¶ 20.
¶ 14 Indeed, “[c]onstitutional guaranties protected by [article II,
section 16 of the Colorado Constitution] relate to trial and not to
proceedings thereafter unless a new trial is granted.” Agnes v.
People, 104 Colo. 527, 538, 93 P.2d 891, 896 (1939) (emphasis
added); see Colo. Const. art. II, § 16 (“In criminal prosecutions the
accused shall have the right to appear and defend in person and by
counsel . . . .”); see also 15 Robert J. Dieter, Colorado Practice
Series, Criminal Practice and Procedure § 16.41, Westlaw (2d ed.
database updated Oct. 2019) (“The right to be present encompasses
all trial-related proceedings . . . . This extends from jury selection
through sentencing, but does not extend to post-trial matters . . . .”)
(footnotes omitted).
¶ 15 Federal courts have repeatedly held that the right to be
present under the United States Constitution does not apply to
postconviction proceedings analogous to Crim. P. 35(c) hearings.
See United States v. Hayman, 342 U.S. 205, 222-23 (1952) (“Unlike
the criminal trial where the guilt of the defendant is in issue and his
presence is required by the Sixth Amendment, a proceeding under
6 [28 U.S.C. § 2255 (2018)] is an independent and collateral
inquiry . . . . Whether the prisoner should be produced depends
upon the issues raised by the particular case.”); United States v.
Bergman, 746 F.3d 1128, 1130 (10th Cir. 2014); see also Bucci v.
United States, 662 F.3d 18, 32 (1st Cir. 2011). Accordingly,
defendant did not have a constitutional right to be present at his
Crim. P. 35(c) hearing.
¶ 16 Nor does a defendant have a right by rule to appear in person
at a postconviction hearing. Crim. P. 43, which enumerates stages
of the criminal process at which a defendant must be physically
present, does not include a Rule 35(c) hearing.4 Similarly, Rule
35(c) does not address a defendant’s presence at an evidentiary
hearing. Rather, Crim. P. 35(c)(3)(V) reads, in relevant part: “If the
court does not deny the motion . . . the court shall grant a prompt
hearing on the motion . . . . At the hearing, the court shall take
whatever evidence is necessary for the disposition of the motion.”
4 Crim. P. 43(a) requires that the defendant “be present at the preliminary hearing, at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” 7 This language says nothing about how the evidence must be
presented.
¶ 17 Because there is no constitutional or rule-based requirement
that a defendant be present in person at a Crim. P. 35(c)
postconviction hearing, we conclude that whether to grant a
defendant’s request to be present at a postconviction hearing is
within the postconviction court’s discretion.
B. Did the Postconviction Court Abuse its Discretion?
¶ 18 We consider next whether the postconviction court abused its
discretion by denying defendant’s request to be present in person at
the evidentiary hearing.
1. Standard of Review and Applicable Law
¶ 19 Generally, “a proceeding under Crim. P. 35(c) is governed by
equitable principles.” People v. Turman, 659 P.2d 1368, 1370 (Colo.
1983). “[A] trial court is obligated to administer justice, control the
decorum of the courtroom, and make sure that cases are decided
on appropriate grounds.” People v. Finney, 2012 COA 38, ¶ 64
(concluding that a postconviction court correctly limited the time in
which a defendant could present his case during a Crim. P. 35(c)
hearing), aff’d, 2014 CO 38. “To achieve these ends, courts have
8 broad discretion to control the ‘mode and extent of the presentation
of evidence.’” Id. (quoting People v. Cole, 654 P.2d 830, 832 (Colo.
1982)).
¶ 20 We review a postconviction court’s denial of a defendant’s
request to be present at a Crim. P. 35(c) evidentiary hearing for an
abuse of discretion. See Bucci, 662 F.3d at 32 (“Whether the
petitioner should be present at his § 2255 hearing ‘depends upon
the issues raised by the particular case,’ and is a matter left to the
district court’s sound discretion.”) (citations omitted); see also
Teffeteller v. Dugger, 676 So. 2d 369, 371 (Fla. 1996) (“[I]t is within
the [postconviction] court’s discretion to determine whether or not a
prisoner should be present at a postconviction relief hearing . . . .”).
“To constitute an abuse of discretion, the postconviction court’s
decision must be shown to be manifestly arbitrary, unreasonable,
or unfair.” People v. Hardin, 2016 COA 175, ¶ 30.
¶ 21 “[W]e review nonconstitutional trial errors that were preserved
by objection for harmless error.” Hagos v. People, 2012 CO 63,
¶ 12. “[W]e reverse if the error ‘substantially influenced the verdict
or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin
v. People, 715 P.2d 338, 342 (Colo. 1986)).
9 2. Discussion
¶ 22 Under the circumstances here, we discern no abuse of
discretion in the postconviction court’s denial of defendant’s request
to be physically present at the postconviction hearing. Defendant
was located in federal prison in South Carolina. “The expectation of
an applicant’s presence [at a postconviction proceeding] is not
applicable if the applicant is confined in another state and cannot
be removed to the court in which the application is pending without
undue expense or delay.” IV ABA Standards for Criminal Justice
§ 22-4.6 cmt. (2d ed. 1980)); see also Turman, 659 P.2d at 1370
(“We have often looked to the American Bar Association Standards
for Criminal Justice for guidance in the area of postconviction
remedies.”).
¶ 23 Further, the postconviction court attempted to secure
defendant’s testimony via video conference, which proved
impossible due to technological deficiencies in Larimer County. The
postconviction court, the federal prison, and counsel agreed that a
telephonic conference was possible. At a status hearing, defense
counsel told the postconviction court that she had advised
defendant she was opposed to him testifying via telephone.
10 However, over counsel’s objection, defendant instructed counsel to
accept the telephonic hearing. In response, the postconviction
court stated: “Well, it is not ideal, but I guess it’s certainly
something – I’m certainly willing to accept that waiver if he has any
right beyond a telephone conference.” Because the postconviction
court attempted to secure video conferencing and defendant
accepted the telephonic conference, the postconviction court did not
abuse its discretion in this case.
¶ 24 Defendant also argues that the hearing was unfairly
prejudicial because the postconviction court could not see his body
language or demeanor.5 However, the postconviction court rested
its credibility conclusions on the disparity between the substance of
defendant’s testimony and the factual record.
¶ 25 Thus, under the particular facts of this case, we conclude the
postconviction court properly exercised its discretion by denying
defendant’s request to appear in person. Having concluded that
5 Defendant points out that the telephone connection cut out at the close of the hearing. But, our examination of the record leads us to conclude that defendant had sufficient opportunity to present testimony, and at the time of the lost connection, he had concluded his testimony, defense counsel had finished closing argument, and the People were in the middle of their closing. 11 there was no error in conducting the hearing without defendant
being present in person, we turn to whether the court’s substantive
rulings are correct.
C. Defendant’s Postconviction Claims
¶ 26 Defendant argues that the postconviction court erred by (1)
denying his ineffective assistance claims and (2) rejecting his claim
that his plea was involuntary. We discern no error.
1. Ineffective Assistance of Counsel
a. Standard of Review and Applicable Law
¶ 27 A claim of ineffective assistance of counsel presents mixed
questions of fact and law. Dunlap v. People, 173 P.3d 1054, 1063
(Colo. 2007). Where the evidence in the record supports the
findings and holding of the postconviction court that presided over
an evidentiary hearing, the judgment will not be disturbed on
review. Id. at 1062.
¶ 28 A criminal defendant has a constitutional right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). When
evaluating the effectiveness of counsel, we use the two-prong test
set forth in Strickland. See Hagos, ¶ 17. This test requires a
12 defendant to establish (1) that counsel’s performance was deficient
and (2) that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. Unless both showings are made, a
defendant has not proved that he was denied effective assistance of
counsel. Id.
¶ 29 Counsel’s performance is deficient when the representation
falls below “an objective standard of reasonableness.” Id. at 688. A
strong presumption exists that counsel provided adequate
assistance and exercised reasonable professional judgment with
regard to significant decisions. People v. Hickey, 914 P.2d 377, 379
(Colo. App. 1995). Thus, the defendant must overcome a strong
presumption that counsel’s challenged action may have been sound
strategy. People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007)
(citing Strickland, 466 U.S. at 689). To overcome this presumption,
the defendant must establish that his counsel made one or more
errors that were so flagrant that they more likely resulted from
neglect or ignorance rather than from informed professional
deliberation. Strickland, 466 U.S. at 690.
13 b. Discussion
¶ 30 The postconviction court made detailed factual findings in its
order denying defendant’s Crim. P. 35(c) motion.
¶ 31 First, the postconviction court found that defendant’s
testimony at the evidentiary hearing was not credible because it
was refuted by the record. Specifically, the postconviction court
rejected defendant’s testimony regarding a “lengthy colloquy” with
the sentencing court as not credible because there was no record of
such a conversation in the transcripts.6 For similar reasons, the
postconviction court found not credible defendant’s testimony about
a letter he wrote to the court because defendant’s testimony
regarding the contents of the letter did not match what was read to
the sentencing court. The court found that “[d]efendant’s testimony
did not exhibit minor lapses in memory; it evidenced purposeful
efforts to deceive the [c]ourt, which only escalated after the
sentencing transcript was not located and, again, after the
[d]efendant learned the contents of the court records.”
6 After the Crim. P. 35(c) hearing, the postconviction court located the transcripts from the sentencing hearing, where both the plea colloquy and sentence determination took place. 14 ¶ 32 Second, the postconviction court found, with record support,
that plea counsel was adequately prepared, interviewed potential
witnesses, and filed motions to suppress and to obtain an out-of-
state witness. The postconviction court further found that, during
the plea colloquy, plea counsel told the sentencing court that he
had no reason to believe there had been “any acts of coercion” used
against defendant. The court also found that plea counsel properly
advised defendant about the charges he faced and the possible
consequences of a plea, including that he faced a habitual offender
charge and up to a life sentence if convicted at trial. The court
rejected defendant’s testimony that plea counsel threatened him.
¶ 33 Third, the postconviction court found from the record of the
plea colloquy that defendant had told the sentencing court, under
oath, that (1) he understood the plea agreement and the court’s
questionnaire; (2) there were no threats or acts of coercion used
against him to force him to enter into the plea agreement; and (3)
he was entering into the plea freely and voluntarily. Defendant also
initialed and signed the sentencing court’s questionnaire and
wanted the court to rely on the truth of those statements.
Defendant told the sentencing court that the plea was in his best
15 interest, and the postconviction court found that the plea was
favorable to defendant.
¶ 34 Because the postconviction court’s findings of fact and
conclusions of law sufficiently provided the basis of its ruling —
namely, that defendant failed to present evidence that would justify
relief or satisfy the deficiency prong of Strickland— we affirm the
postconviction court’s orders. See Dunlap, 173 P.3d at 1061; People
v. Breaman, 939 P.2d 1348, 1352 (Colo. 1997).
¶ 35 We turn next to defendant’s claim that the court erred by
finding that his plea was voluntary.
2. Voluntariness of Plea
¶ 36 A claim asserting that a guilty plea was involuntary presents a
mixed question of law and fact. People v. Corson, 2016 CO 33,
¶ 25. “We consider the totality of the circumstances to determine
whether the guilty plea was entered knowingly, voluntarily, and
intelligently.” Id. (quoting Sanchez-Martinez v. People, 250 P.3d
1248, 1257 (Colo. 2011)). We review the postconviction court’s legal
conclusions de novo but defer to the postconviction court’s factual
findings if they are supported by the record. Id.
16 ¶ 37 “A guilty plea must represent ‘a voluntary and intelligent
choice among the alternative courses of action open to the
defendant’ and must be the product of ‘a free and rational choice.’”
Id. at ¶ 27 (quoting People v. Kyler, 991 P.2d 810, 816 (Colo. 1999)).
“[A] defendant who seeks to set aside a conviction based on a guilty
plea must make a prima facie showing that the plea was
unconstitutional.” Sanchez-Martinez, 250 P.3d at 1255.
b. Discussion
¶ 38 As relevant here, the postconviction court found the following:
The court’s and counsel’s advisements to defendant were not
coercive in nature because they were proper advisements
about the circumstances of the case and the consequences of
defendant’s plea.
Defendant signed the sentencing court’s questionnaire about
the plea to the 1994 charge that indicated he was not coerced
or threatened, and the sentencing court relied on the truth of
those statements during the plea colloquy.
Defendant represented under oath at the sentencing hearing
that he was aware of the charges against him, their elements,
and the potential sentence.
17 Defendant discussed the plea with counsel on multiple
occasions.
Defendant’s allegations that he was threatened with the
prospect of proceeding pro se were not credible and were
belied by the record that reflected defendant’s ability to voice
grievances against counsel and seek appointment of new
counsel throughout the years.
¶ 39 We discern no error in the postconviction court’s findings of
fact or its legal conclusions. Because the record supports its
findings that defendant’s guilty plea was not coerced or involuntary,
and that defendant’s testimony at the evidentiary hearing was
factually refuted, we affirm.
III. Conclusion
¶ 40 The order is affirmed.
JUDGE DUNN and JUDGE ROTHENBERG concur.