v. Lancaster

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 29, 2018

2018COA168

No. 16CA1165, People v. Lancaster — Criminal Procedure —
Appearance of Counsel — Termination of Representation;
Attorneys and Clients — Ineffective Assistance of Counsel

A criminal defendant and his trial counsel executed a fee

agreement providing that the representation of counsel terminates

at the conclusion of trial. Following trial, trial counsel informed

defendant that he would not represent him on appeal, but trial

counsel did not move to withdraw from the representation.

Defendant did not thereafter timely file a notice of direct appeal.

In this opinion, the division addresses an issue of first

impression: whether trial counsel’s failure to perfect the defendant’s

appeal constituted ineffective assistance of counsel under Strickland

v. Washington, 466 U.S. 668 (1984), such that defendant is entitled

to file his direct appeal out of time. The division concludes that,
under People v. Baker, 104 P.3d 893 (Colo. 2005), trial counsel’s

representation of a criminal defendant terminates only as provided

under Crim. P. 44(e), notwithstanding the fee agreement, and,

therefore, trial counsel’s duty to perfect the defendant’s appeal is

not discharged until the representation terminates pursuant to

Crim. P. 44(e).
COLORADO COURT OF APPEALS 2018COA168

Court of Appeals No. 16CA1165
Jefferson County District Court No. 06CR1949
Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry Gene Lancaster,

Defendant-Appellant.

ORDER REVERSED

Division I
Opinion by JUDGE WELLING
Taubman and Bernard, JJ., concur

Announced November 29, 2018

Cynthia H. Coffman, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado,
for Defendant-Appellant
¶1 Defendant, Larry Gene Lancaster, contends that the district

court erroneously denied his Crim. P. 35(c) motion alleging that his

trial counsel was ineffective for failing to perfect his appeal. We

agree and, therefore, reverse the district court’s order denying

Lancaster’s Crim. P. 35(c) motion and order that Lancaster is

entitled to file his direct appeal out of time.

I. Background

¶2 In 2006, Lancaster was arrested after a teenage boy reported

that Lancaster had provided him with marijuana and alcohol and

initiated sexual contact. A second teenage boy later came forward

with similar allegations. Lancaster was charged with sexual assault

on a child (two counts), bribing a witness or victim (two counts),

sexual assault, unlawful sexual contact, and contributing to the

delinquency of a minor.

¶3 In May 2007, Lancaster went to trial. He was represented at

trial by Steven Newell. Newell and Lancaster executed a fee

agreement detailing the scope of Newell’s representation. The

termination provision of that fee agreement provided as follows:

Under Colorado Court rules, representation is
terminated at the conclusion of trial court
proceedings, which essentially is after a

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 finding of not guilty or a sentencing, unless
otherwise directed by the Court or by
agreement between you and Newell Vonachen
and Weeks to represent you beyond that point.

¶4 The jury ultimately found Lancaster guilty on six of the seven

counts. In October 2007, he received an indeterminate sentence of

fourteen years to life. In December 2007, Lancaster filed a motion

requesting additional presentence confinement credit. In that

motion, Lancaster described himself as pro se. Neither he nor

Newell filed a notice of appeal.

¶5 In September 2010, Lancaster filed a pro se Crim. P. 35(c)

motion alleging that his trial counsel had been constitutionally

ineffective by failing to file a notice of appeal. In his motion,

Lancaster requested the appointment of postconviction counsel.

The district court appointed the public defender to represent him in

the postconviction proceedings.

¶6 Neither the public defender nor the district court took any

action on Lancaster’s Crim. P. 35(c) motion for more than five years.

In February 2016, sixty-four months after Lancaster’s original

motion was filed, postconviction counsel filed a supplemental Crim.

P. 35(c) motion. In the supplemental motion, Lancaster renewed

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 the ineffective assistance of trial counsel claim from his September

2010 motion and added five additional claims. The district court

ruled that the additional claims were time barred, but it held an

evidentiary hearing on Lancaster’s first claim — that his trial

counsel’s failure to perfect his appeal deprived him of

constitutionally effective trial counsel. As reflected in the district

court’s subsequent order, Lancaster based his claim on “ABA

recommended standards regarding criminal justice practice,” not

“Crim. P. 44 or . . . case law regarding ineffective assistance of

counsel.”

¶7 Newell and Lancaster testified at the hearing. In a four-page

order issued on May 26, 2016, the district court found that

Lancaster had met with Newell after his conviction but before

sentencing and stated his desire to appeal his conviction. The

district court also found that Newell met with Lancaster three times

after trial, during which time Newell “made clear, in writing and

verbally, that he would not act as [Lancaster’s] attorney for an

appeal.” Based on its conclusion that Newell’s representation

terminated before the alleged ineffective assistance occurred, the

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 district court denied Lancaster’s ineffective assistance of trial

counsel claim.

¶8 This appeal followed.

II. Analysis

¶9 On appeal, Lancaster relies on People v. Baker, 104 P.3d 893

(Colo. 2005), contending that Newell was constitutionally ineffective

in failing to file a notice of appeal on his behalf. The People respond

that Lancaster’s ineffective assistance claim must fail because

Newell’s attorney-client relationship with Lancaster terminated

pursuant to the undisputed terms of the fee agreement after

Lancaster was sentenced on October 1, 2007. In addition, the

People contend that Baker is distinguishable. We are unpersuaded

by either of the People’s contentions and conclude that Newell’s

failure to either file a notice of appeal on Lancaster’s behalf or

withdraw pursuant to Crim. P. 44(d) and secure the appointment of

the public defender to represent Lancaster on direct appeal

constituted ineffective assistance of trial counsel under Strickland v.

Washington, 466 U.S. 668 (1984).

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 A. Law

1. Ineffective Assistance on Appeal

¶ 10 The Sixth Amendment of the United States Constitution and

article II, section 16 of the Colorado Constitution guarantee the

effective assistance of counsel. Strickland, 466 U.S. at 686; Lanari

v. People, 827 P.2d 495, 500 (Colo. 1992). Claims of ineffective

assistance of counsel are governed by the test set forth in

Strickland. Under this test, a defendant must show that (1)

counsel’s representation “fell below an objective standard of

reasonableness” and (2) counsel’s deficient performance prejudiced

the defendant. Strickland, 466 U.S. at 688, 694.

¶ 11 Where a defendant’s claim is that trial counsel failed to perfect

an appeal, we do not analyze the merits of the defendant’s appellate

claims. See People v. Long, 126 P.3d 284, 286-87 (Colo. App. 2005).

Rather, a defendant who shows that counsel performed deficiently

in failing to perfect the defendant’s appeal will have established

both prongs of the Strickland test. Id. In Colorado, “the right to

direct appeal of a criminal conviction is fundamental,” Peterson v.

People, 113 P.3d 706, 708 (Colo. 2005), and “a lawyer who

disregards specific instructions from the defendant to file a notice of

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 appeal acts in a manner that is professionally unreasonable,” Roe v.

Flores-Ortega, 528 U.S. 470, 477 (2000). In such cases, “[t]he

prejudice resulting from the failure to file a notice of appeal is not in

the outcome of the proceeding itself, but in the forfeiture of the

proceeding itself.” Long, 126 P.3d at 286-87 (citing Flores-Ortega,

528 U.S. at 483).

2. Baker

¶ 12 The Baker court determined that good cause existed under

C.A.R. 26(b) to permit the defendant to pursue an untimely direct

appeal because trial counsel’s failure to perfect the defendant’s

appeal constituted ineffective assistance of counsel under

Strickland. 104 P.3d at 898. Baker warrants close examination.

¶ 13 Baker was convicted of multiple felony offenses. After

sentencing, he prepared a handwritten notice of appeal, which he

showed to his trial counsel. Baker and his counsel agreed that

counsel would not represent Baker on appeal, but counsel offered

to type and submit Baker’s notice of appeal “as a courtesy.” Id. at

895. But counsel ultimately failed to file the notice of appeal in the

correct court, and Baker’s appeal was thus not perfected. Id.

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¶ 14 Two years later, after Baker learned that the notice of appeal

had been incorrectly filed in the district court, he filed a new notice

of appeal. This court issued an order directing Baker to show cause

why the notice of appeal should not be dismissed for lack of

jurisdiction due to its untimeliness. Baker argued in response that

dismissal of his appeal would be unfairly prejudicial, as the failure

to file a timely notice of appeal was caused by the ineffective

assistance of his trial counsel, who had failed to perfect his direct

appeal. A division of this court dismissed his appeal as untimely.

Id.

¶ 15 Baker then petitioned the supreme court for relief pursuant to

C.A.R. 21. The supreme court issued a rule to show cause why his

appeal should not be accepted and ultimately concluded that the

court of appeals abused its discretion in rejecting Baker’s appeal. It

held that, notwithstanding counsel’s agreement with Baker that he

would not represent him on appeal, Crim. P. 44(e) dictated that

counsel’s responsibilities to his client did not end at sentencing. Id.

at 896. Crim. P. 44(e) provides as follows:

(1) Unless otherwise directed by the trial
court or extended by an agreement between
counsel and a defendant, counsel’s

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 representation of a defendant, whether
retained or appointed, shall terminate at the
conclusion of trial court proceedings and after
a final determination of restitution. Trial court
proceedings shall conclude at the point in
time:

(I) When dismissal is granted by the court
and no timely appeal has been filed;

(II) When an order enters granting a deferred
prosecution, deferred sentence, or probation;

(III) After a sentence to incarceration is
imposed upon conviction when no motion has
been timely filed pursuant to Crim. P. 35(b) or
such motion so filed is ruled on; or

(IV) When a notice of appeal is filed by the
defendant.

¶ 16 In Baker, trial court proceedings had not concluded within the

meaning of subsection (I), (II), or (III) when the then-applicable

forty-five-day period for Baker to file a notice of appeal under C.A.R.

4(b) expired.1 Nor had appellate counsel been appointed. The

supreme court held that Baker’s trial counsel had, therefore,

provided constitutionally ineffective assistance under Strickland in

failing to properly file Baker’s notice of appeal. The supreme court

1In 2011, the rule was amended to allow forty-nine days. Rule
Change 2011(19), Colorado Appellate Rules (Amended and Adopted
by the Court En Banc, Dec. 14, 2011), https://perma.cc/KLV3-
S9CE.

8
 considered trial counsel’s ineffective assistance “as a factor

contributing to a finding of good cause” for permitting Baker to

pursue an untimely direct appeal. Id. at 897.

B. Reversal Is Required Under Baker

¶ 17 On appeal, the People contend that Newell’s failure to file a

notice of appeal on Lancaster’s behalf was not ineffective assistance

because Newell’s representation of him terminated when Lancaster

was sentenced on October 1, 2007. The People, in arguing that the

attorney-client relationship terminated before the alleged ineffective

assistance occurred, rely on the termination provision of the fee

agreement as well as Lancaster’s testimony describing his

understanding of when Newell’s representation of him ended. In

light of Baker, however, we conclude that Newell’s representation of

Lancaster did not terminate when the People contend, but instead,

as prescribed by Crim. P. 44(e), continued through the deadline for

filing a notice of appeal.

1. The Termination of Newell’s Attorney-Client Relationship with
Lancaster is Controlled by Crim. P. 44(e), Not the Fee
Agreement

¶ 18 In Baker, the supreme court held that, notwithstanding an

agreement between a defendant and trial counsel providing that

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counsel would not represent the defendant on appeal, Crim. P. 44(e)

dictates when the representation terminates. See Baker, 104 P.3d

at 896 (“Even though counsel may have mistakenly believed that

because he had not agreed to represent Baker on appeal, his

responsibilities to his client ended at sentencing, . . . Crim. P. 44(e)

provides otherwise.”). Termination of representation pursuant to

Crim. P. 44(e) requires the occurrence of an event set forth in

subsections (I) through (IV) unless “otherwise directed by the trial

court or extended by an agreement between counsel and a

defendant.” (Emphasis added.) Crim. P. 44(e) does not, however,

contemplate any exception in cases where counsel and the

defendant have agreed to terminate the representation at an earlier

date — as in Baker and this case. To terminate representation

earlier requires leave of the court. See Crim. P. 44(d)(1).2

2 If Newell did not wish to file a notice of appeal on Lancaster’s
behalf, Newell could have discharged his duty to Lancaster by
timely moving to withdraw (for instance, at sentencing) and
requesting the appointment of the public defender to represent
Lancaster on appeal, as Lancaster automatically qualified for the
services of the public defender by virtue of his custodial status
following sentencing. Ronquillo v. People, 2017 CO 99, ¶ 34.

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¶ 19 In their brief on appeal, the People do not discuss Crim. P. 44.

Instead, the People argue that Lancaster’s testimony establishes

that Newell’s representation of him terminated in accordance with

the fee agreement. Specifically, they point to Lancaster’s testimony

at his Crim. P. 35(c) hearing in which he stated that, having met

with Newell prior to his sentencing hearing, he understood that

Newell would provide him no further assistance. But we disagree

that the attorney-client relationship terminated based upon

Lancaster’s subjective understanding.3

¶ 20 In support of their position, the People cite to People v.

Bennett, 810 P.2d 661, 664 (Colo. 1991) — a civil case — for the

proposition that counsel’s duty to a client continues “until the client

clearly understands, or reasonably should understand, that the

relationship is no longer to be depended upon.” This is not the

applicable standard in a criminal case, however. Were it the

standard, Crim. P. 44 subsections (d) (withdrawal of counsel) and

(e) (termination of representation) would be rendered superfluous.

3 We note that, although not raised by either party on appeal, the
record shows that the district court did not discharge its duty at
sentencing, pursuant to Crim. P. 44(e)(2), to “inform the defendant
when representation shall terminate.”

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 See Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992,

995 (Colo. 2003) (interpretations that render statutory provisions

superfluous should be avoided); see also People v. Bueno, 2018 CO

4, ¶ 18 (rules of criminal procedure are construed employing the

same interpretive rules applicable to statutory construction). Yet

the People, in their appellate brief, do not attempt to reconcile their

position with Crim. P. 44. However, we conclude that Crim. P. 44(e)

is dispositive on the issue of when Newell’s representation of

Lancaster terminated.

2. Baker Is Not Meaningfully Distinguishable

¶ 21 The People contend that Baker is distinguishable, in any

event. They contend that Baker was “[b]ased on” the fact that

Baker’s trial counsel agreed to submit his notice of appeal but then

failed to do so. They argue that, because Newell never agreed to

submit Lancaster’s notice of appeal, there was no detrimental

reliance and, therefore, Baker is inapposite. While we agree that

Lancaster’s situation is different from Baker in this way, we

disagree that trial counsel’s agreement in this regard was material

to the holding in Baker.

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¶ 22 Trial counsel’s agreement to submit the notice of appeal was

immaterial to the outcome in Baker. Our supreme court held that

trial counsel was obligated to ensure that Baker’s appeal was

perfected because he was counsel of record when the period for

filing a notice of appeal under C.A.R. 4(b) expired. 104 P.3d at 896.

A careful reading of Baker makes clear that its holding in no way

hinged on Baker’s counsel’s agreement to file the notice of appeal as

a courtesy. Instead, the supreme court explained that trial counsel

remained Baker’s counsel of record because appellate counsel had

not been appointed, trial counsel had not moved to withdraw, and

the representation had not terminated pursuant to Crim. P. 44(e).

See id. at 896-97. Trial counsel’s agreement to type and submit

Baker’s notice of appeal was immaterial to the holding because the

court concluded that counsel had a duty to ensure that Baker’s

appeal was perfected. See id.

¶ 23 Baker is not, therefore, meaningfully distinguishable based on

the fact that Newell did not offer to submit Lancaster’s notice of

appeal. Instead, because he remained Lancaster’s counsel of record

until he withdrew or the representation terminated — neither of

which happened before the period for Lancaster to file a notice of

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 appeal under C.A.R. 4(b) expired — Newell, knowing that Lancaster

wanted to appeal, had a duty to ensure that Lancaster’s appeal was

perfected. See id.

3. Newell’s Failure to File Lancaster’s Notice of Appeal Was
Ineffective Assistance of Counsel

¶ 24 Newell’s failure to file a notice of appeal on Lancaster’s behalf

without having been granted leave to withdraw amounted to

constitutionally ineffective assistance of counsel under Strickland.

Both prongs of the Strickland test are satisfied because Lancaster

has shown that Newell disregarded specific instructions to file a

notice of appeal. See Long, 126 P.3d at 286-87.

¶ 25 We review the district court’s factual findings for abuse of

discretion, but review de novo the application of law to those factual

findings. Carmichael v. People, 206 P.3d 800, 807-08 (Colo. 2009).

¶ 26 The district court held an evidentiary hearing on Lancaster’s

Rule 35(c) petition at which it heard testimony from both Newell

and Lancaster. Based on this testimony, the district court found

that Lancaster had communicated to Newell his desire to appeal.

Indeed, the record establishes that Lancaster wanted to appeal and

that Newell understood that desire. Furthermore, based on the

14
 discussion in Part II.B.2 of this opinion, Newell had a duty following

sentencing to ensure that Lancaster’s appeal was perfected. For

these reasons, we conclude that Lancaster has established

ineffective assistance of counsel. See Baker, 104 P.3d at 897; Long,

126 P.3d at 287; see also People v. Houser, 2013 COA 11, ¶ 42 n.5

(noting that counsel’s “failure to perfect an appeal for a defendant

who desired to appeal would be per se unreasonable”). Accordingly,

we reverse the district court’s order denying Lancaster’s

postconviction motion alleging ineffective assistance of counsel.

C. Lancaster Is Entitled to Pursue His Direct Appeal Out of Time

¶ 27 Because the ineffective assistance of trial counsel deprived

Lancaster of his right to direct appeal of his conviction, we conclude

that he is entitled to pursue a direct appeal out of time. See

Peguero v. United States, 526 U.S. 23, 28 (1999) (“[W]hen counsel

fails to file a requested appeal, a defendant is entitled to . . . an

appeal without showing that his appeal would likely have had

merit.”); People v. Hill, 296 P.3d 121, 125 (Colo. App. 2011) (the

remedy for a defendant whose counsel failed to perfect an appeal is

reinstatement of the defendant’s right to an appeal); Long, 126 P.3d

at 287 (same). Pursuant to C.A.R. 4(b), Lancaster has forty-nine

15
 days from the issuance of our mandate in which to file his direct

appeal. People v. Boespflug, 107 P.3d 1118, 1121 (Colo. App.

2004).

D. Lancaster’s Other Claims

¶ 28 Because we conclude that trial counsel’s failure to perfect

Lancaster’s appeal was ineffective assistance under Strickland

entitling Lancaster to pursue a direct appeal, we need not and do

not reach his additional claim in which he contends that the

postconviction court erroneously denied the claims brought in his

supplemental Crim. P. 35(c) motion as time barred.

III. Conclusion

¶ 29 For these reasons, we reverse the postconviction court’s order

denying Lancaster’s Crim. P. 35(c) motion. Based on this

disposition, Lancaster may file his notice of direct appeal in this

court within forty-nine days from issuance of the mandate, as

provided by C.A.R. 4(b).

JUDGE TAUBMAN and JUDGE BERNARD concur.

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