People v. Houser
2020 COA 76. No. 17CA0972. Criminal Procedure—Patronizing a Prostituted Child—Unconstitutionally Vague—Ineffective Assistance of Counsel—Hearing.
May 7, 2020
Defendant paid 16-year-old A.J. $240 to engage in sexual acts with him. He was charged with patronizing a prostituted child. Defendant filed a pretrial notice of intent to assert an affirmative defense under CRS § 18-1-503.5 that he reasonably believed A.J. was at least 18 years old. Following a hearing, the trial court prohibited defendant from arguing at trial that he believed A.J. was at least 18. A jury found defendant guilty as charged. The trial court sentenced him to a jail term and sex offender intensive supervised probation for an indeterminate term of 10 years to life.
Six years later, defendant failed to comply with his probation terms and the trial court resentenced him to two years to life in the custody of the Department of Corrections. A division of the Court of Appeals affirmed defendant’s conviction (Houser I). Defendant then filed a Crim. P. 35(c) motion challenging the constitutionality of his conviction and sentence, and alleging ineffective assistance of counsel. The postconviction court denied defendant’s motion without a hearing, finding that Houser I precluded defendant’s constitutional arguments and even if defendant could present such arguments, they fail on the merits. It also held that defendant failed to establish prejudice and deficient performance and therefore is not entitled to a hearing on his ineffective assistance of counsel claims.
On appeal, defendant argued that the offense of patronizing a prostituted child is unconstitutionally vague because it includes certain actions performed by a child. CRS § 18-7-406(1)(a) requires that a defendant perform one of the prohibited acts with a child, and the statute’s plain language makes clear that the child’s actions alone do not constitute an offense. Therefore, CRS § 18-7-406(1) is not void for vagueness and defendant was not entitled to a hearing on this claim.
Defendant next contended that the postconviction court erred in denying his request for a hearing on his ineffective assistance of counsel claims. Defendant contended that his counsel was ineffective by failing to raise four arguments that were not established by precedent at the time: (1) that CRS § 18-7-407 is unconstitutional; (2) that defendant’s sentence under the Colorado Sex Offender Lifetime Supervision Act is unconstitutional; (3) that CRS § 18-7-406(1) is void for vagueness; and (4) that CRS § 18-7-406(1) violates equal protection. As a matter of law, defendant’s counsel was not ineffective for failing to raise these novel arguments. Therefore, the postconviction court did not err in denying these claims without a hearing.
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. However, defendant’s counsel’s theory of defense did not, as a matter of law, admit his guilt.
Defendant also argued that he is entitled to a hearing on his claim that his trial counsel was ineffective for failing to (1) sufficiently challenge A.J.’s out-of-court identification of him, and (2) file a motion to suppress the search warrant for his home premised on that identification. Defendant contended that he was prejudiced because his counsel did not call the detective to testify whether he showed A.J. a single photo, which may have been impermissibly suggestive and could have invalidated the search warrant, or six photographs, as the prosecution contended. Because this allegation, if true, could support a claim that his counsel’s conduct was deficient for failing to challenge a potentially improper out-of-court identification based on a prosecutor’s reputation, defendant is entitled to a hearing on the merits of this claim.
Defendant further contended 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” in investigating defendant’s first attorney for alleged witness intimidation of A.J. This allegation, if true, would provide a basis for an ineffective assistance of counsel 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 not challenging A.J.’s out-of-court identification and the search warrant resting on such identification, and not challenging the prosecution’s alleged outrageous conduct. The case was remanded to the postconviction court for a hearing on these claims.