People v. Palermo.
2026 COA 12. No. 24CA0131. Court-Appointed Counsel—Request for Substitute Counsel—Bergerud Hearing.
March 12, 2026
Palermo was charged with stalking, harassment, sexual assault on a child by one in a position of trust, and sexual assault. He pleaded guilty to harassment and an amended count of second degree assault in exchange for dismissal of these charges. Following a plea hearing, the district court accepted Palermo’s guilty plea. Two months later, Palermo filed a motion asserting that he had a conflict with his court-appointed counsel and stated that she coerced him into accepting an inappropriate plea agreement. The court held a hearing pursuant to People v. Bergerud, 223 P.3d 686, 694–95 (Colo. 2010), and determined that there was no conflict between Palermo and his counsel, and it explained to Palermo that he could either continue with his court-appointed counsel or proceed without counsel. Palermo opted to continue with counsel for sentencing. During the sentencing hearing, the court noted Palermo’s previous sexual offense involving a minor and sentenced him to 15 years in prison for second degree assault and a concurrent four-month jail term for harassment.
On appeal, Palermo argued that his sentence should be reversed because the district court erred by having the same judge preside over the Bergerud hearing and the sentencing hearing. However, Bergerud doesn’t require that a different judge hear a defendant’s request for substitute counsel, and Palermo raised no other reasons that the assigned judge might have been biased. Therefore, it wasn’t error for the assigned judge to preside over the Bergerud hearing.
Palermo also contended that the district court erred by not advising him that he risked waiving his attorney-client privilege during the Bergerud hearing. But a client may impliedly waive the attorney-client privilege by requesting new counsel because the court must investigate the nature of the attorney-client dispute. The court thus didn’t err by not advising Palermo of this waiver.
Palermo further asserted that the district court erred by sentencing him without making sure he understood and agreed to the plea, because the written plea agreement indicated he was pleading guilty to second degree assault with a deadly weapon but cited the statute for sexual assault, and these crimes have different sentencing ranges. A defendant challenging their guilty plea on grounds that the plea agreement was entered into unknowingly or unintelligently, or that plea counsel provided ineffective assistance, implicates the constitutionality of their conviction. A defendant who raises such constitutional challenge after sentencing must file a Crim. P. 35(c) motion to withdraw the plea. Here, Palermo’s challenge to his sentence was fundamentally a challenge to the constitutional validity of his guilty plea, but Palermo did not file a Rule 35(c) motion. Therefore, the matter was not properly before the court of appeals, and the court declined to consider it further.
Palermo also contended that the district court erred by relying on insufficient and inaccurate information in imposing his sentence. However, Palermo was not precluded from introducing evidence of the victim’s consent at the sentencing hearing, and he failed to explain how the court otherwise relied on inaccurate information in imposing his sentence. Further, Palermo’s sentence was within the statutory range, was based on appropriate considerations, and was supported by the case circumstances. Accordingly, the district court did not abuse its discretion in sentencing Palermo.
The sentence was affirmed.