People v. Johnson.

2022 COA 2. No. 19CA1713.  Ineffective Assistance of Counsel—Sixth Amendment—Right to Forgo a Defense.

January 6, 2022

Defendant was charged with felony escape from jail. He instructed his counsel not to mount a defense. Counsel requested, and was granted, a closed session with the court during which the court received assurances from defendant that he made his decision voluntarily and knowingly and with counsel’s advice about the consequences of his decision. Trial proceeded, and defendant’s counsel did not participate in voir dire, give an opening statement, or cross-examine witnesses. Defendant was found guilty of escape. He moved for postconviction relief under Crim. P. 35(c), alleging that trial counsel provided ineffective assistance. The postconviction court denied the motion.

On appeal, defendant argued that his trial counsel provided ineffective assistance by failing to subject the prosecution’s case to meaningful adversarial testing. The decision to forgo a defense or to sit quietly while the prosecution makes its case is personal and, absent competency issues, one a defendant can elect to make. Here, the postconviction court properly denied defendant’s ineffective assistance of counsel claim because (1) there was no suggestion that defendant was incompetent, and his decision to forgo a defense was voluntary and knowing; and (2) he explicitly and unambiguously instructed trial counsel not to mount a defense.

The order was affirmed.