People v. Houser
2020 COA 128. No. 17CA0972. Criminal Procedure—Postconviction Remedies—Patronizing a Prostituted Child—Unconstitutionally Vague—Ineffective Assistance of Counsel.
August 27, 2020
Defendant was convicted of patronizing a prostituted child, 16-year-old A.J., after responding to her advertisement on Craigslist in which she identified herself as a 20-year-old “playmate.” A Court of Appeals division affirmed defendant’s conviction. Defendant then filed a Crim. P. 35(c) motion for postconviction relief challenging the constitutionality of his conviction and sentence and alleging ineffective assistance of counsel. The postconviction court rejected the motion without a hearing.
On appeal, defendant argued that the patronizing a prostituted child statute is unconstitutionally vague because it defines “prostitution by a child” to include certain actions performed by a child, but not by the defendant, so it is unclear how a defendant can conform his or her behavior to avoid criminal liability. CRS § 18-7-406(1)(a) requires that the defendant perform one of the prohibited acts with a child, and its plain language makes clear that the child’s actions alone do not constitute an offense. Therefore, the statute is not unconstitutionally vague.
Defendant also argued that the trial court erred in denying his request for a hearing on his ineffective assistance of counsel claims. He contended that his counsel was ineffective by failing to raise four arguments that were not established by precedent at the time. Denial of a claim of ineffective assistance of counsel without a hearing is justified where the existing record establishes that a defendant’s allegations, even if proven true, would fail to establish either constitutionally deficient performance or prejudice. An attorney cannot be deemed ineffective for not raising novel arguments that are unsupported by then-existing precedent. Here, as a matter of law, defendant’s counsel was not ineffective for failing to raise novel arguments.
Defendant also contended that he is entitled to a hearing on his claim that his counsel was ineffective by offering a theory of defense that admitted his guilt without his consent. Defense counsel admitted that defendant agreed to pay A.J. for her time, but argued he did not pay her for sex; rather, counsel asserted that defendant paid A.J. because he knew her pimp was nearby and he feared for his safety if she walked out his door without cash. Counsel’s defense did not, as a matter of law, admit defendant’s guilt. Thus, defendant was not entitled to a hearing on this issue.
Defendant further contended that he is entitled to a hearing on his claim that his trial counsel was ineffective for failing to sufficiently challenge A.J.’s out-of-court identification of him and to file a motion to suppress the search warrant for his home premised on that identification. Here, there was conflicting evidence as to whether the detective showed A.J. a single photo or six photos. This allegation, if true, could support a claim that defendant’s counsel’s conduct was deficient for failing to challenge a potentially improper out-of-court identification based on a prosecutor’s reputation. Accordingly, defendant is entitled to a hearing on the merits of this claim.
Defendant further argued that he is entitled to a hearing on his claim that his counsel was ineffective for failing to challenge the prosecution’s alleged outrageous conduct. Defendant contended that he was prejudiced because his second attorney failed to argue that the prosecution’s conduct in allegedly pressuring his first attorney to withdraw from the case after investigating him for witness tampering was outrageous. This allegation, if true, would provide a basis for an ineffective assistance claim.
The denial of the Crim. P. 35(c) motion was affirmed except as to defendant’s right to a hearing on his claims that his counsel was ineffective for (1) not challenging A.J.’s out-of-court identification of defendant and the search warrant resting on such identification, and (2) not challenging the prosecution’s alleged outrageous conduct. The case was remanded for a hearing on those claims.
Criminal Procedure, Postconviction Remedies, Patronizing a Prostituted Child, Unconstitutionally Vague, Ineffective Assistance of Counsel