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People v. Smith.

2022 COA 56. No. 19CA2359. Crim. P. 35(c)—Postconviction Counsel—Waiver of Pro Se Claims—Ineffective Assistance of Counsel.

May 26, 2022

Defendant was convicted of sexual assault on a child—position of trust—pattern of abuse; three counts of sexual assault on a child—position of trust; and four counts of promotion of obscenity to a minor. A Court of Appeals division affirmed his convictions in a 2015 unpublished decision. In 2018, defendant filed a pro se Crim. P. 35(c) motion asserting 12 claims related to ineffective assistance of counsel, newly discovered evidence, and prosecutorial misconduct. The postconviction court appointed counsel, who then filed a supplemental Crim. P. 35(c) motion that expanded on three of defendant’s original claims and clarified that he challenged only the effectiveness of his prior trial counsel. The court denied the claims in a written order without a hearing, and it found, in a footnote, that the remaining issues raised in defendant’s pro se petition were waived because counsel had not reasserted them in the supplemental motion and the prosecution had not responded to them.

On appeal, defendant argued that the postconviction court erred in finding that he waived his pro se claims by not reasserting them in counsel’s supplemental motion. Here, the supplemental motion does not indicate an intent to waive or abandon the remaining pro se claims, so the court erred.

Defendant also argued that the postconviction court erroneously denied without a hearing his claim that trial counsel was ineffective in failing to make a record of the trial court’s ex parte communications with the jury. Defendant raised this issue on direct appeal, and a Court of Appeals division held that counsel’s affirmative acquiescence invited any error and defendant had waived the right to object. Further, the record does not support the allegation that ex parte communications occurred; defendant failed to explain how juror affidavits would have assisted in resolving the issue; and the Court rejected defendant’s contention that had the error been properly preserved, his conviction would have been reversed. Therefore, the postconviction court did not err.

Defendant further argued that the postconviction court erroneously denied without a hearing his claim that trial counsel was ineffective by failing to consult an independent expert to assist in preparing for cross-examination of the prosecution’s generalized expert witness. Here, the prosecutor endorsed and presented generalized expert testimony on child sexual abuse. Defense counsel decided that an expert witness for the defense would not be necessary to prepare for cross-examination. The postconviction court did not err in denying this claim without a hearing because whether to consult an expert, and whether and how to conduct cross-examination, are strategic decisions made in counsel’s discretion.

The order was affirmed in part and reversed in part, and the case was remanded for the postconviction court to make further findings on the claims raised in the pro se motion.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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