v. Wardell

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
March 26, 2020

2020COA47

No. 17CA1060, People v. Wardell — Criminal Procedure —
Presence of the Defendant — Postconviction Remedies

A division of the court of appeals considers whether a

defendant has a constitutional right or right by rule to be present in

person at a Crim. P. 35(c) evidentiary hearing. The division

concludes that a defendant does not have such a right. Rather,

whether to grant a defendant’s request to be present in person at a

postconviction hearing is an issue within the postconviction court’s

discretion. In this case, the division concludes that the

postconviction court did not abuse its discretion in denying

defendant’s request to be physically present because defendant was

in federal prison out of state and defendant had agreed to testify

telephonically.
COLORADO COURT OF APPEALS 2020COA47

Court of Appeals No. 17CA1060
Larimer County District Court No. 94CR776
Honorable Gregory M. Lammons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wendel Robert Wardell, Jr.,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE ROMÁN
Dunn and Rothenberg*, JJ., concur

Announced March 26, 2020

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Wendel Robert Wardell, Jr., asserts that he had

the right to appear at a Crim. P. 35(c) postconviction hearing, that

he sufficiently established ineffective assistance of counsel, and

that his plea in this case was involuntary. Deciding an issue of first

impression in Colorado, we conclude that a defendant does not

have a right to appear in person at a Crim. P. 35(c) evidentiary

hearing. Rather, whether a defendant may appear in person is

subject to the postconviction court’s discretion. In this case, we

conclude that the postconviction court did not abuse its discretion

when it denied defendant’s request to be present in person at the

Crim. P. 35(c) evidentiary hearing. We also reject defendant’s

substantive Rule 35(c) claims. Thus, we affirm.

I. Background

¶2 This case comes to us with a tortuous procedural history. In

1994, defendant pled guilty to one count of fraud by check and was

sentenced to eighteen months in prison. Subsequently, he

appealed the denial of a pre-plea motion to dismiss the case, which

was affirmed by another division of this court in People v. Wardell,

(Colo. App. No. 95CA0049, Apr. 18, 1996) (not published pursuant

to C.A.R. 35(f)).

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¶3 In 1996, defendant filed a pro se motion for appointment of

counsel for the purpose of pursuing a Crim. P. 35(c) motion based

upon alleged ineffective assistance of his plea counsel and appellate

counsel. The postconviction court denied the motion, finding no

meritorious claim for relief under Crim. P. 35(c). Defendant

appealed that ruling, and a division of this court affirmed in People

v. Wardell, (Colo. App. No. 96CA1274, Mar. 19, 1998) (not

published pursuant to C.A.R. 35(f)).

¶4 In 1998, defendant, again acting pro se, filed a Crim. P. 35(c)

motion based upon the following allegations: (1) defendant had been

denied the effective assistance of his plea counsel; (2) he had been

denied the effective assistance of his second appellate counsel; and

(3) his guilty plea was involuntary as a result of the ineffective

assistance of his plea counsel. The postconviction court denied the

motion without a hearing, finding that the basis for that motion was

the same as that which had been raised by prior motions and

denied by the court.

¶5 In 2000, another division of this court affirmed in part,

reversed in part, and remanded the case with instructions based on

the trial court’s failure to appoint postconviction counsel or hold an

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 evidentiary hearing. People v. Wardell, slip op. at 9 (Colo. App. No.

99CA1040, Oct. 12, 2000) (not published pursuant to C.A.R. 35(f)).

The division instructed the postconviction court “to appoint counsel

to represent defendant at an evidentiary hearing to determine: (1)

whether defendant’s plea counsel provided ineffective assistance by

threatening to withdraw if defendant did not plead guilty; and (2)

whether counsel’s alleged threats rendered defendant’s guilty plea

involuntary.” Id. The division also instructed the court on remand

to “enter findings of fact and conclusions of law with respect to

these two issues.” Id.

¶6 The postconviction court issued an order again denying

defendant’s Rule 35(c) motion without an evidentiary hearing.

Instead, the postconviction court relied on appointed counsel’s

written representation that defendant lacked a meritorious claim.

On appeal, a division of this court found that the postconviction

court erred and remanded the case for an evidentiary hearing in

accordance with the instructions from the 2000 Wardell decision.

See People v. Wardell, (Colo. App. No. 13CA0926, Aug. 20, 2015)

(not published pursuant to C.A.R. 35(f)).

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¶7 Back on remand, prior to the evidentiary hearing, defendant

requested that the postconviction court issue a writ to bring him

from federal prison in South Carolina to the hearing.1 The

postconviction court denied defendant’s request.

¶8 The postconviction court then held an evidentiary hearing and

allowed defendant to present postconviction claims from two cases

— this case and 92CR995 — because defendant’s motions relied on

the same or similar factual arguments; namely, that defendant was

coerced into pleading guilty in this case and that, as a result, his

plea was not voluntary.2

¶9 At the hearing, defendant appeared and testified telephonically

and was represented in person by counsel. The only evidence

presented to the postconviction court was defendant’s testimony.

1 To writ the defendant in this case, the postconviction court would
have issued an order requiring that defendant be transported from
federal prison in South Carolina to the hearing in Colorado.
2 In 92CR995, defendant pled guilty to theft by check in exchange

for deferred judgment and sentence. When defendant pled guilty in
this case, he confessed the motion to revoke deferred judgment and
sentencing. Therefore, defendant’s claims of coercion affect both
this case and 92CR995.

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¶ 10 In separate orders, the postconviction court denied all of

defendant’s postconviction claims in this case and in 92CR995.

Defendant now appeals.3

II. Analysis

¶ 11 Defendant contends the postconviction court erred by denying

his request to appear in person at the evidentiary hearing. To

address defendant’s claim, we must first consider whether a

defendant has a right to be present in person at such a hearing.

A. Does Defendant Have a Right to be Present in Person at a
Postconviction Hearing?

¶ 12 We hold that in Colorado a defendant does not have a right to

be present in person at a Crim. P. 35(c) hearing. This is true

whether analyzed as a constitutional right or right by rule.

¶ 13 “Both the United States Constitution and the Colorado

Constitution ‘guarantee the right of a criminal defendant to be

present at all critical stages of the prosecution.’” Zoll v. People,

2018 CO 70, ¶ 19 (quoting People v. White, 870 P.2d 424, 458 (Colo.

1994)). However, the right to presence is not absolute, nor does

3Defendant appeals both orders. We resolve the companion case in
a separate opinion, People v. Wardell, (Colo. App. No. 17CA1059,
Mar. 26, 2020) (not published pursuant to C.A.R. 35(e)).
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 every criminal proceeding constitute a “critical stage.” See id. at

¶ 20.

¶ 14 Indeed, “[c]onstitutional guaranties protected by [article II,

section 16 of the Colorado Constitution] relate to trial and not to

proceedings thereafter unless a new trial is granted.” Agnes v.

People, 104 Colo. 527, 538, 93 P.2d 891, 896 (1939) (emphasis

added); see Colo. Const. art. II, § 16 (“In criminal prosecutions the

accused shall have the right to appear and defend in person and by

counsel . . . .”); see also 15 Robert J. Dieter, Colorado Practice

Series, Criminal Practice and Procedure § 16.41, Westlaw (2d ed.

database updated Oct. 2019) (“The right to be present encompasses

all trial-related proceedings . . . . This extends from jury selection

through sentencing, but does not extend to post-trial matters . . . .”)

(footnotes omitted).

¶ 15 Federal courts have repeatedly held that the right to be

present under the United States Constitution does not apply to

postconviction proceedings analogous to Crim. P. 35(c) hearings.

See United States v. Hayman, 342 U.S. 205, 222-23 (1952) (“Unlike

the criminal trial where the guilt of the defendant is in issue and his

presence is required by the Sixth Amendment, a proceeding under

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 [28 U.S.C. § 2255 (2018)] is an independent and collateral

inquiry . . . . Whether the prisoner should be produced depends

upon the issues raised by the particular case.”); United States v.

Bergman, 746 F.3d 1128, 1130 (10th Cir. 2014); see also Bucci v.

United States, 662 F.3d 18, 32 (1st Cir. 2011). Accordingly,

defendant did not have a constitutional right to be present at his

Crim. P. 35(c) hearing.

¶ 16 Nor does a defendant have a right by rule to appear in person

at a postconviction hearing. Crim. P. 43, which enumerates stages

of the criminal process at which a defendant must be physically

present, does not include a Rule 35(c) hearing.4 Similarly, Rule

35(c) does not address a defendant’s presence at an evidentiary

hearing. Rather, Crim. P. 35(c)(3)(V) reads, in relevant part: “If the

court does not deny the motion . . . the court shall grant a prompt

hearing on the motion . . . . At the hearing, the court shall take

whatever evidence is necessary for the disposition of the motion.”

4 Crim. P. 43(a) requires that the defendant “be present at the
preliminary hearing, at the arraignment, at the time of the plea, at
every stage of the trial including the impaneling of the jury and the
return of the verdict, and at the imposition of sentence, except as
otherwise provided by this rule.”
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 This language says nothing about how the evidence must be

presented.

¶ 17 Because there is no constitutional or rule-based requirement

that a defendant be present in person at a Crim. P. 35(c)

postconviction hearing, we conclude that whether to grant a

defendant’s request to be present at a postconviction hearing is

within the postconviction court’s discretion.

B. Did the Postconviction Court Abuse its Discretion?

¶ 18 We consider next whether the postconviction court abused its

discretion by denying defendant’s request to be present in person at

the evidentiary hearing.

1. Standard of Review and Applicable Law

¶ 19 Generally, “a proceeding under Crim. P. 35(c) is governed by

equitable principles.” People v. Turman, 659 P.2d 1368, 1370 (Colo.

1983). “[A] trial court is obligated to administer justice, control the

decorum of the courtroom, and make sure that cases are decided

on appropriate grounds.” People v. Finney, 2012 COA 38, ¶ 64

(concluding that a postconviction court correctly limited the time in

which a defendant could present his case during a Crim. P. 35(c)

hearing), aff’d, 2014 CO 38. “To achieve these ends, courts have

8
 broad discretion to control the ‘mode and extent of the presentation

of evidence.’” Id. (quoting People v. Cole, 654 P.2d 830, 832 (Colo.

1982)).

¶ 20 We review a postconviction court’s denial of a defendant’s

request to be present at a Crim. P. 35(c) evidentiary hearing for an

abuse of discretion. See Bucci, 662 F.3d at 32 (“Whether the

petitioner should be present at his § 2255 hearing ‘depends upon

the issues raised by the particular case,’ and is a matter left to the

district court’s sound discretion.”) (citations omitted); see also

Teffeteller v. Dugger, 676 So. 2d 369, 371 (Fla. 1996) (“[I]t is within

the [postconviction] court’s discretion to determine whether or not a

prisoner should be present at a postconviction relief hearing . . . .”).

“To constitute an abuse of discretion, the postconviction court’s

decision must be shown to be manifestly arbitrary, unreasonable,

or unfair.” People v. Hardin, 2016 COA 175, ¶ 30.

¶ 21 “[W]e review nonconstitutional trial errors that were preserved

by objection for harmless error.” Hagos v. People, 2012 CO 63,

¶ 12. “[W]e reverse if the error ‘substantially influenced the verdict

or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin

v. People, 715 P.2d 338, 342 (Colo. 1986)).

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 2. Discussion

¶ 22 Under the circumstances here, we discern no abuse of

discretion in the postconviction court’s denial of defendant’s request

to be physically present at the postconviction hearing. Defendant

was located in federal prison in South Carolina. “The expectation of

an applicant’s presence [at a postconviction proceeding] is not

applicable if the applicant is confined in another state and cannot

be removed to the court in which the application is pending without

undue expense or delay.” IV ABA Standards for Criminal Justice

§ 22-4.6 cmt. (2d ed. 1980)); see also Turman, 659 P.2d at 1370

(“We have often looked to the American Bar Association Standards

for Criminal Justice for guidance in the area of postconviction

remedies.”).

¶ 23 Further, the postconviction court attempted to secure

defendant’s testimony via video conference, which proved

impossible due to technological deficiencies in Larimer County. The

postconviction court, the federal prison, and counsel agreed that a

telephonic conference was possible. At a status hearing, defense

counsel told the postconviction court that she had advised

defendant she was opposed to him testifying via telephone.

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 However, over counsel’s objection, defendant instructed counsel to

accept the telephonic hearing. In response, the postconviction

court stated: “Well, it is not ideal, but I guess it’s certainly

something – I’m certainly willing to accept that waiver if he has any

right beyond a telephone conference.” Because the postconviction

court attempted to secure video conferencing and defendant

accepted the telephonic conference, the postconviction court did not

abuse its discretion in this case.

¶ 24 Defendant also argues that the hearing was unfairly

prejudicial because the postconviction court could not see his body

language or demeanor.5 However, the postconviction court rested

its credibility conclusions on the disparity between the substance of

defendant’s testimony and the factual record.

¶ 25 Thus, under the particular facts of this case, we conclude the

postconviction court properly exercised its discretion by denying

defendant’s request to appear in person. Having concluded that

5 Defendant points out that the telephone connection cut out at the
close of the hearing. But, our examination of the record leads us to
conclude that defendant had sufficient opportunity to present
testimony, and at the time of the lost connection, he had concluded
his testimony, defense counsel had finished closing argument, and
the People were in the middle of their closing.
11
 there was no error in conducting the hearing without defendant

being present in person, we turn to whether the court’s substantive

rulings are correct.

C. Defendant’s Postconviction Claims

¶ 26 Defendant argues that the postconviction court erred by (1)

denying his ineffective assistance claims and (2) rejecting his claim

that his plea was involuntary. We discern no error.

1. Ineffective Assistance of Counsel

a. Standard of Review and Applicable Law

¶ 27 A claim of ineffective assistance of counsel presents mixed

questions of fact and law. Dunlap v. People, 173 P.3d 1054, 1063

(Colo. 2007). Where the evidence in the record supports the

findings and holding of the postconviction court that presided over

an evidentiary hearing, the judgment will not be disturbed on

review. Id. at 1062.

¶ 28 A criminal defendant has a constitutional right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687

(1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). When

evaluating the effectiveness of counsel, we use the two-prong test

set forth in Strickland. See Hagos, ¶ 17. This test requires a

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 defendant to establish (1) that counsel’s performance was deficient

and (2) that the deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687. Unless both showings are made, a

defendant has not proved that he was denied effective assistance of

counsel. Id.

¶ 29 Counsel’s performance is deficient when the representation

falls below “an objective standard of reasonableness.” Id. at 688. A

strong presumption exists that counsel provided adequate

assistance and exercised reasonable professional judgment with

regard to significant decisions. People v. Hickey, 914 P.2d 377, 379

(Colo. App. 1995). Thus, the defendant must overcome a strong

presumption that counsel’s challenged action may have been sound

strategy. People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007)

(citing Strickland, 466 U.S. at 689). To overcome this presumption,

the defendant must establish that his counsel made one or more

errors that were so flagrant that they more likely resulted from

neglect or ignorance rather than from informed professional

deliberation. Strickland, 466 U.S. at 690.

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 b. Discussion

¶ 30 The postconviction court made detailed factual findings in its

order denying defendant’s Crim. P. 35(c) motion.

¶ 31 First, the postconviction court found that defendant’s

testimony at the evidentiary hearing was not credible because it

was refuted by the record. Specifically, the postconviction court

rejected defendant’s testimony regarding a “lengthy colloquy” with

the sentencing court as not credible because there was no record of

such a conversation in the transcripts.6 For similar reasons, the

postconviction court found not credible defendant’s testimony about

a letter he wrote to the court because defendant’s testimony

regarding the contents of the letter did not match what was read to

the sentencing court. The court found that “[d]efendant’s testimony

did not exhibit minor lapses in memory; it evidenced purposeful

efforts to deceive the [c]ourt, which only escalated after the

sentencing transcript was not located and, again, after the

[d]efendant learned the contents of the court records.”

6 After the Crim. P. 35(c) hearing, the postconviction court located
the transcripts from the sentencing hearing, where both the plea
colloquy and sentence determination took place.
14
¶ 32 Second, the postconviction court found, with record support,

that plea counsel was adequately prepared, interviewed potential

witnesses, and filed motions to suppress and to obtain an out-of-

state witness. The postconviction court further found that, during

the plea colloquy, plea counsel told the sentencing court that he

had no reason to believe there had been “any acts of coercion” used

against defendant. The court also found that plea counsel properly

advised defendant about the charges he faced and the possible

consequences of a plea, including that he faced a habitual offender

charge and up to a life sentence if convicted at trial. The court

rejected defendant’s testimony that plea counsel threatened him.

¶ 33 Third, the postconviction court found from the record of the

plea colloquy that defendant had told the sentencing court, under

oath, that (1) he understood the plea agreement and the court’s

questionnaire; (2) there were no threats or acts of coercion used

against him to force him to enter into the plea agreement; and (3)

he was entering into the plea freely and voluntarily. Defendant also

initialed and signed the sentencing court’s questionnaire and

wanted the court to rely on the truth of those statements.

Defendant told the sentencing court that the plea was in his best

15
 interest, and the postconviction court found that the plea was

favorable to defendant.

¶ 34 Because the postconviction court’s findings of fact and

conclusions of law sufficiently provided the basis of its ruling —

namely, that defendant failed to present evidence that would justify

relief or satisfy the deficiency prong of Strickland— we affirm the

postconviction court’s orders. See Dunlap, 173 P.3d at 1061; People

v. Breaman, 939 P.2d 1348, 1352 (Colo. 1997).

¶ 35 We turn next to defendant’s claim that the court erred by

finding that his plea was voluntary.

2. Voluntariness of Plea

a. Standard of Review and Applicable Law

¶ 36 A claim asserting that a guilty plea was involuntary presents a

mixed question of law and fact. People v. Corson, 2016 CO 33,

¶ 25. “We consider the totality of the circumstances to determine

whether the guilty plea was entered knowingly, voluntarily, and

intelligently.” Id. (quoting Sanchez-Martinez v. People, 250 P.3d

1248, 1257 (Colo. 2011)). We review the postconviction court’s legal

conclusions de novo but defer to the postconviction court’s factual

findings if they are supported by the record. Id.

16
¶ 37 “A guilty plea must represent ‘a voluntary and intelligent

choice among the alternative courses of action open to the

defendant’ and must be the product of ‘a free and rational choice.’”

Id. at ¶ 27 (quoting People v. Kyler, 991 P.2d 810, 816 (Colo. 1999)).

“[A] defendant who seeks to set aside a conviction based on a guilty

plea must make a prima facie showing that the plea was

unconstitutional.” Sanchez-Martinez, 250 P.3d at 1255.

b. Discussion

¶ 38 As relevant here, the postconviction court found the following:

 The court’s and counsel’s advisements to defendant were not

coercive in nature because they were proper advisements

about the circumstances of the case and the consequences of

defendant’s plea.

 Defendant signed the sentencing court’s questionnaire about

the plea to the 1994 charge that indicated he was not coerced

or threatened, and the sentencing court relied on the truth of

those statements during the plea colloquy.

 Defendant represented under oath at the sentencing hearing

that he was aware of the charges against him, their elements,

and the potential sentence.

17
  Defendant discussed the plea with counsel on multiple

occasions.

 Defendant’s allegations that he was threatened with the

prospect of proceeding pro se were not credible and were

belied by the record that reflected defendant’s ability to voice

grievances against counsel and seek appointment of new

counsel throughout the years.

¶ 39 We discern no error in the postconviction court’s findings of

fact or its legal conclusions. Because the record supports its

findings that defendant’s guilty plea was not coerced or involuntary,

and that defendant’s testimony at the evidentiary hearing was

factually refuted, we affirm.

III. Conclusion

¶ 40 The order is affirmed.

JUDGE DUNN and JUDGE ROTHENBERG concur.

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