People v. Nozolino.
2023 COA 39. No. 20CA2167. Postconviction Remedies—Postconviction Counsel—Crim. P. 35(c)(3)(IV) and (V).
May 4, 2023
A jury found Nozolino guilty of first-degree murder and 13 counts of attempted first-degree murder. The judgment of conviction was affirmed on direct appeal. Nozolino filed a Crim. P. 35(c) motion for postconviction relief asserting 13 claims of ineffective assistance of counsel and newly discovered evidence, and he requested appointment of counsel. In an August 2020 order, the postconviction court denied most of Nozolino’s claims and appointed counsel to represent him on the surviving claims. The public defender then moved to withdraw as counsel due to a conflict of interest and requested appointment of alternate defense counsel (ADC). The prosecution asked the court to deny the surviving claims and the motion in its entirety, without a hearing. The postconviction court granted the public defender’s motion to withdraw but said it would address an ADC appointment after it considered the prosecution’s submittal. The postconviction court then ordered Nozolino to file a pro se response to the prosecution’s submission. Nozolino filed a response and again requested appointment of counsel, and the prosecution filed a reply to Nozolino’s pro se response. In a November 2020 order, the postconviction court denied the claims that were not denied in its August 2020 order and vacated its order appointing counsel on those claims.
On appeal, Nozolino argued, and the People conceded, that the postconviction court did not comply with Crim. P. 35(c)(3)(V)’s procedures in resolving the claims not initially denied in the August 2020 order. If a pro se defendant’s postconviction motion contains at least one claim that is not ripe for summary denial and also requests the appointment of counsel, Crim. P. 35(c)(3)(IV) and (V) require the postconviction court to serve the entire postconviction motion on the prosecutor and public defender’s office, giving the public defender’s office the opportunity to further investigate the claims and add any claims that have arguable merit. Further, this service must be done without first disposing of any claims that the postconviction court determines on initial review do not have arguable merit. Here, the postconviction court did not summarily deny Nozolino’s motion pursuant to Crim. P. 35(c)(3)(IV), so it erred by not providing a complete copy of the motion to ADC.
The orders were reversed and the case was remanded for the postconviction court to forward Nozolino’s Crim. P. 35(c) motion to ADC and to conduct further proceedings under Crim. P. 35(c)(3)(V).