People v. Rogers.
2026 COA 79. No. 24CA1533. Sixth Amendment—Right to Counsel—Ineffective Assistance of Counsel—Presumption of Prejudice.
November 5, 2026
Rogers was charged with three counts of distributing drugs to a minor and two counts of sexual assault. Following three court-ordered competency evaluations that all resulted in determinations of competency, the district court appointed Reisch to represent Rogers. Less than two weeks later, Reisch moved for a determination of competency. Noting that three evaluators had found Rogers competent, the court made a preliminary finding of competency. Reisch objected under CRS § 16-8.5-103(2), and the court ordered a fourth competency evaluation. Shortly thereafter, Reisch moved to withdraw based on irreconcilable differences and Rogers’s desire to discharge him. The court held a third competency review hearing, at which Reich appeared on Rogers’s behalf. Neither party objected to the fourth evaluation, and the district court again entered a determination of competency. The court then conducted hearing under People v. Bergerud, 223 P.3d 686, 694 (Colo. 2010), and found that Rogers and Reisch had a total communication breakdown. The court appointed Rogers a fourth lawyer, who represented Rogers through trial and sentencing, and did not raise any concern about Rogers’s competency. A jury acquitted Rogers of the drug charges but convicted him of the sexual assault charges.
On appeal, Rogers contended that the court denied his right to counsel at the third competency review hearing, which was a critical stage, asserting that Reisch was unable to advocate for him while the motion to withdraw was pending. A competency hearing, including a review hearing where the court enters a final determination of competency, is a critical stage of the proceeding. But absent one of the circumstances identified in United States v. Cronic, 466 U.S. 648, 658 (1984), the claim must be construed as an ineffective assistance of counsel claim governed by Strickland v. Washington, 466 U.S. 668, 686 (1984). Under Cronic, in very limited circumstances, a Sixth Amendment claim gives rise to presumed prejudice which, as relevant here, is presumed when there is a complete denial of counsel, when counsel fails to subject the prosecution’s case to meaningful adversarial testing, or when even fully competent counsel could not provide effective assistance. Rogers maintained that he is entitled to reversal of his convictions without a showing of actual prejudice because Reisch’s failure to object to the fourth competency evaluation rendered the competency process nonadversarial under Cronic. To show the lack of meaningful adversarial testing of the competency finding, Rogers had to show that defense counsel failed to oppose the prosecution throughout the competency proceedings as a whole. First, a pending motion to withdraw does not alone establish a denial of counsel. Second, this case does not involve one of the narrow circumstances where Cronic’s presumption of prejudice applies. Here, the Bergerud hearing does not suggest that Reisch was not acting as Rogers’s advocate on the competency issue. Rather, Rogers’s complaint regarding the competency hearing amounts to a claim that Reisch provided ineffective assistance by not objecting to the fourth evaluation. Because the claim is cognizable as an ineffective assistance of counsel claim rather than a claim that Rogers was constructively denied counsel under Cronic, it should be raised in a postconviction motion.
The appeal was dismissed.