v. Jennings

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
August 19, 2021

2021COA112

No. 18CA1934, People v. Jennings — Judges — Code of Judicial
Conduct — Disqualification — Actual Bias

In this case, the defendant pleaded guilty to a felony drug

offense. She appeals the judgment of conviction on various

grounds, including that the trial court exhibited actual bias. A

division of the court of appeals holds, as a matter of first

impression, that a guilty plea does not waive review of a claim that

the trial court was disqualified due to actual bias. The division

concludes, however, that the record does not show the trial court

was actually biased. Because the division also concludes that the

defendant’s guilty plea precludes review of her other challenges, the

judgment is affirmed.
COLORADO COURT OF APPEALS 2021COA112

Court of Appeals No. 18CA1934
Adams County District Court No. 16CR3637
Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Amber Leigh Jennings,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE NAVARRO
Brown and Vogt*, JJ., concur

Announced August 19, 2021

Philip J. Weiser, Attorney General, Daniel Rheiner, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Laura E. H. Harvell, Alternate Defense Counsel, Grand Junction, 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. 2020.
¶1 Defendant, Amber Leigh Jennings, appeals the judgment of

conviction entered on her guilty plea to possession of a controlled

substance with intent to manufacture or distribute. Among other

contentions, she argues that the trial court demonstrated actual

bias in the proceedings prior to her guilty plea. A guilty plea,

however, generally waives appellate review of issues that arose prior

to the plea. So we must decide whether a claim that the trial court

was actually biased is an exception to that general rule. We

conclude that it is. Still, we are not persuaded that the record

shows the court was actually biased. Because we also conclude

that Jennings’s guilty plea precludes review of her other challenges

to her conviction, we affirm.

I. Background

¶2 Following a traffic stop and search of her vehicle, Jennings

was charged with eleven counts related to possession of illicit drugs

and firearms, as well as possession of a weapon by a previous

offender.

¶3 After Jennings fired her first retained attorney, the trial court

allowed him to withdraw and accepted Jennings’s newly retained

attorney as a substitute. Jennings later filed a pro se motion to

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 dismiss her second retained attorney. At first, the trial court took

no action on the motion except to issue a written order explaining

that Jennings could fire her second retained attorney at any time

but the court would not appoint counsel or continue the trial date.

The court reasoned that Jennings had “successfully avoided trials

in these matters for nearly two years by discharging her previous

court appointed attorney and failures to appear” and, thus, if

Jennings discharged her second retained attorney, “she will either

have to hire substitute counsel who can be prepared to try this case

o[n] the date scheduled, or she will have to proceed as her own

counsel.”

¶4 At a hearing approximately three weeks after Jennings filed

her motion to dismiss her second retained attorney, however, the

trial court noted that it had mistakenly believed her first retained

attorney had been appointed. The court allowed her second

retained attorney to withdraw and appointed the public defender’s

office to represent Jennings. A public defender then entered his

appearance.

¶5 A month later, Jennings asked for appointment of alternate

defense counsel to replace the public defender due to a “conflict”

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 with him. In a written order, the court said it was “convinced that

even if another attorney were to be appointed, the same issues

would occur.” The court denied Jennings’s motion “[a]t this point”

but noted that it would address the matter at an upcoming motions

hearing. At that hearing, however, counsel for the parties revealed,

in Jennings’s presence, that they had reached a tentative

disposition and requested a short continuance. The court thus

vacated the hearing without addressing the motion for alternate

defense counsel.

¶6 At an ensuing providency hearing, Jennings pleaded guilty to

possession of methamphetamine with intent to manufacture or

distribute. Before doing so, she confirmed that no one had forced

her to plead guilty, and she expressed no concerns with her

attorney. The court advised her that, by pleading guilty, she would

waive various rights, including the right to appeal. She said she

understood, and the court accepted her guilty plea.

II. Appellate Review Following a Guilty Plea

¶7 Jennings raises three claims: (1) the trial court’s refusal to

immediately appoint the public defender after Jennings moved to

dismiss her second retained attorney “constituted a denial of

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 counsel of choice” because it forced her to keep her second retained

attorney for nearly a month; (2) the court erred by denying her

request for alternate defense counsel to replace the public defender

without holding a hearing as per People v. Bergerud, 223 P.3d 686

(Colo. 2010); and (3) the court exhibited actual bias against her.

We conclude that Jennings’s guilty plea precludes review of the first

two issues but not the third.

A. General Principles

¶8 A guilty plea is an admission of all the elements of a criminal

charge. Neuhaus v. People, 2012 CO 65, ¶ 8. A “guilty plea

represents a break in the chain of events which has preceded it in

the criminal process,” after which a defendant may not raise

independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea. Id.

(quoting Tollett v. Henderson, 411 U.S. 258, 266-67 (1973)).

Therefore, a defendant must plead not guilty and go to trial to

preserve appellate review of challenges to pretrial proceedings. Id.

¶9 But, while a guilty plea generally waives appellate review of

issues that arose prior to the plea, “exceptions exist to this general

rule.” People v. McMurtry, 122 P.3d 237, 240 (Colo. 2005). “One

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 such exception” is a challenge to the trial court’s subject matter

jurisdiction, which may be raised at any time. Id. Another

exception applies where double jeopardy principles preclude the

prosecution from haling the defendant into court on the charge.

See Patton v. People, 35 P.3d 124, 128 (Colo. 2001).

¶ 10 The question becomes, then, whether Jennings’s appellate

challenges fall within an exception to the rule precluding review.

B. Application to Jennings’s Case

1. Right to Counsel of Choice and to Appointment of
Alternate Defense Counsel

¶ 11 We turn first to Jennings’s contention that the trial court

violated her constitutional right to counsel of choice by not

immediately appointing the public defenders’ office when she moved

to dismiss her second retained attorney. This alleged error arose

prior to Jennings’s guilty plea, and she does not contend that it is

jurisdictional. Instead, Jennings argues that this challenge was not

waived by her guilty plea because, unlike the statutory speedy trial

claim at issue in McMurtry, her challenge concerns an important

constitutional right, the improper denial of which constitutes

structural error. See McMurtry, 122 P.3d at 242 (concluding that a

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 guilty plea precludes review of an alleged deprivation of the

statutory right to speedy trial, in part because this right may be

waived).

¶ 12 Jennings is correct that the erroneous deprivation of the right

to counsel of choice qualifies as structural error. See United States

v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Even fundamental

rights can be waived, however, regardless of whether the

deprivation thereof would otherwise constitute structural error.

Stackhouse v. People, 2015 CO 48, ¶ 8.

¶ 13 “By pleading guilty, a defendant waives a number of important

constitutional rights,” including some that could lead to structural

error if erroneously denied (e.g., the rights to trial by jury and a

public trial). Patton, 35 P.3d at 128; cf. Sullivan v. Louisiana, 508

U.S. 275, 281-82 (1993) (erroneous deprivation of the right to trial

by jury constitutes structural error); Stackhouse, ¶ 7 (same as to

right to public trial). In other words, a guilty plea waives

fundamental Sixth Amendment rights, among others, unless the

claim relates directly to the adequacy of the guilty plea (i.e., whether

it was knowing, voluntary, and intelligent). People v. Stovall, 2012

COA 7M, ¶ 16.

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¶ 14 As a result, a defendant’s guilty plea precludes review of a

claim that they were denied the right to counsel of choice when the

claim does not relate directly to the adequacy of the plea. See

People v. Isham, 923 P.2d 190, 194-95 (Colo. App. 1995) (“[T]he trial

court’s erroneous disqualification of counsel here does not require

that defendant’s guilty plea be vacated, absent evidence that the

plea was involuntary or unintelligently made.”); see also United

States v. Montemayor, 815 F. App’x 406, 409 (11th Cir. 2020)

(holding that the defendant’s guilty plea waived his challenge to

whether the district court properly disqualified his previous

counsel). Jennings did not challenge the adequacy of her guilty

plea in the trial court, nor does she do so on appeal. Thus, she

waived her independent claim that the court denied her right to

counsel of choice.

¶ 15 The same goes for Jennings’s claim that the trial court should

have appointed alternate defense counsel when an alleged conflict

arose with the public defender, her third attorney. Jennings argues

that, because alternate defense counsel was not appointed, she was

forced to proceed with conflicted counsel. But a defendant’s right to

conflict-free counsel is a subset of the right to effective assistance of

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 counsel, see People v. Curren, 228 P.3d 253, 258 (Colo. App. 2009),

and a guilty plea waives review of an ineffective assistance of

counsel claim unless it relates directly to the adequacy of the plea

itself, see Stovall, ¶¶ 16-17; see also State v. Villegas, 908 N.W.2d

198, 215 n.19 (Wis. Ct. App. 2018) (collecting cases supporting this

proposition). To reiterate, Jennings does not contend that her

guilty plea was invalid in that it was not knowingly, intelligently,

and voluntarily made. Therefore, by pleading guilty, she waived her

stand-alone claim that the court erred by not replacing her allegedly

conflicted counsel. See People v. Canales, 408 N.E.2d 299, 302 (Ill.

App. Ct. 1980); State v. LaRue, 619 N.W.2d 395, 397-98 (Iowa

2000).

¶ 16 Given all this, we will not resolve Jennings’s claims about her

counsel. See People v. Butler, 251 P.3d 519, 520 (Colo. App. 2010).

2. Alleged Bias of the Tribunal

¶ 17 We reach a different conclusion as to Jennings’s claim that the

trial court was actually biased. Answering a novel question in

Colorado, we conclude that her guilty plea did not waive her claim

of actual bias.

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¶ 18 Basic to our system of justice is the principle that a judge

must be free of all taint of bias and partiality. People v. Mentzer,

2020 COA 91, ¶ 5. But there is a difference between a judge who

has the appearance of impropriety and a judge who has actual bias.

See People in Interest of A.G., 262 P.3d 646, 650-51 (Colo. 2011).

¶ 19 Regarding the former, the Code of Judicial Conduct requires a

judge to recuse “in any proceeding in which the judge’s impartiality

might reasonably be questioned.” Id. at 650 (quoting C.J.C.

2.11(A)). Even though a judge who appears to be partial may, in

fact, be able to act impartially, “the judge is disqualified nonetheless

because a reasonable observer might have doubts about the judge’s

impartiality.” Id. The purpose behind disqualifying a judge who

has the appearance of partiality is to protect public confidence in

the judiciary. See id.; People v. Gallegos, 251 P.3d 1056, 1063

(Colo. 2011). The litigants to a case, however, may waive

disqualification based on the appearance of impropriety. A.G., 262

P.3d at 650; C.J.C. 2.11(C).

¶ 20 Actual bias is different; it is bias “that in all probability will

prevent [a judge] from dealing fairly with a party.” A.G., 262 P.3d at

650 (quoting People v. Julien, 47 P.3d 1194, 1197 (Colo. 2002))

9
 (alteration in original). A claim of actual bias focuses on the

subjective motivations of the judge. Id. at 651. The Code of

Judicial Conduct requires disqualification when a judge “has a

personal bias or prejudice concerning a party or a party’s

lawyer . . . .” C.J.C. 2.11(A)(1). Additionally, under section 16-6-

201(1)(d), C.R.S. 2020, and Crim. P. 21(b)(1)(IV), a judge shall be

disqualified if the judge is “in any way interested or prejudiced with

respect to the case, the parties, or counsel.” Mentzer, ¶ 6 (citations

omitted). Unlike disqualification based on the appearance of

impropriety, the provisions requiring disqualification in cases of

actual bias are intended to ensure that litigants receive a fair and

impartial trial. A.G., 262 P.3d at 651.

¶ 21 “Consequently, there is no provision to waive disqualification

when actual bias is the concern.” Id.; see C.J.C. 2.11(C) (“A judge

subject to disqualification under this Rule, other than for bias or

prejudice under paragraph (A)(1), . . . may ask the parties and their

lawyers to consider, outside the presence of the judge and court

personnel, whether to waive disqualification.”) (emphasis added).

Because disqualification based on actual bias cannot be waived, a

claim of actual bias may be reviewed on appeal even where the

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 parties did not properly raise the issue in the trial court. See, e.g.,

People v. Dobler, 2015 COA 25, ¶ 7.

¶ 22 In light of the above principles, the question remains whether

a valid guilty plea waives a claim of actual bias that arose prior to

the plea. The parties do not cite, and we have not found, conclusive

Colorado authority on this issue. As a result, we look to other

jurisdictions for guidance. See Julien, 47 P.3d at 1198 (considering

federal precedent applying judicial disqualification provisions

similar to Colorado’s).

¶ 23 The United States Code provides that “[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a). A federal judge “shall also

disqualify himself . . . [w]here he has a personal bias or prejudice

concerning a party . . . .” § 455(b)(1). As in Colorado, federal law

distinguishes between the appearance of partiality and actual bias

with respect to whether disqualification can be waived: “No justice,

judge, or magistrate judge shall accept from the parties to the

proceeding a waiver of any ground for disqualification enumerated

in subsection (b). Where the ground for disqualification arises only

11
 under subsection (a), waiver may be accepted . . . .” § 455(e). That

is, while this federal statute permits waiver of disqualification based

on an appearance of impropriety, it does not permit waiver of

disqualification based on actual bias.

¶ 24 Applying these provisions, the Tenth Circuit has held that a

guilty plea waives an appearance of impropriety claim under section

455(a) but not a claim of bias under section 455(b). United States v.

Gipson, 835 F.2d 1323, 1324-25 (10th Cir. 1988). The court

reasoned that “[i]f a party can waive recusal, it would follow that

denial of recusal is a pretrial defect which is sublimated within a

guilty plea and thereafter unavailable as an issue for appeal.” Id. at

1325. In contrast, the court concluded that the provision

precluding waiver of recusal based on actual bias “creates what is

tantamount to a ‘jurisdictional limitation’ on the authority of a

judge to participate in a given case.” Id.

¶ 25 The Seventh Circuit has also recognized that “[a] charge of

actual bias is not waived when a defendant pleads guilty.” United

States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989); cf. O’Connor v.

State, 789 N.E.2d 504, 510 (Ind. Ct. App. 2003) (declining to reach

the defendant’s constitutional claims because he pleaded guilty but

12
 still addressing his claim that the trial court demonstrated bias

against him). We have found no authority holding that a guilty plea

waives a claim that a judge was disqualified due to actual bias or

prejudice concerning a party.

¶ 26 Given the Colorado authorities providing that a claim of actual

judicial bias cannot be waived, as well as the authorities from other

jurisdictions applying similar provisions in the guilty plea context,

we are convinced that a guilty plea does not waive review of an

actual bias claim even if the claim arose prior to the plea. So, we

turn to the merits of Jennings’s claim.

III. Jennings’s Actual Bias Claim

¶ 27 We examine the disqualification question de novo. Julien, 47

P.3d at 1197.

¶ 28 To reiterate, actual bias is bias that in all probability will

prevent a judge from dealing fairly with a party. A.G., 262 P.3d at

650. “[A] defendant asserting bias on the part of a trial judge must

establish that the judge had a substantial bent of mind against him

or her.” People v. Drake, 748 P.2d 1237, 1249 (Colo. 1988). The

record must establish such bias clearly; mere speculative

statements and conclusions are not enough. Id.

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¶ 29 Jennings first argues that the judge was biased against her

because the judge repeatedly declined to reduce her $250,000

bond. But a judge’s prior rulings, even if erroneous, do not alone

indicate partiality. See People v. Schupper, 2014 COA 80M, ¶ 58

(recognizing that “rulings of a judge, although erroneous, numerous

and continuous, are not sufficient in themselves to show bias or

prejudice”) (citation omitted); People v. Schupper, 124 P.3d 856,

859-60 (Colo. App. 2005) (explaining that the trial court’s rulings,

“whether rightly or wrongly decided,” are not pertinent to recusal

issues), aff’d, 157 P.3d 616 (Colo. 2007); see also Liteky v. United

States, 510 U.S. 540, 555 (1994). Furthermore, the judge here did

not act arbitrarily and without offering a reason. Instead, the judge

denied the motions due to Jennings’s prior failures to appear.

¶ 30 Jennings next contends that the judge exhibited bias

warranting recusal when he expressed displeasure with her second

retained attorney. When allowing that attorney to withdraw, the

judge remarked,

I’m not happy with the way you’ve handled
this, [second retained attorney]. Because I’ve
not heard from you in two months. Even
though [Jennings has] written a letter, we’ve
gotten nothing from you. And, quite frankly,

14
 when I saw you enter in this case I knew there
were going to be issues because there are
almost always issues with you.

I’m sorry to say it but that’s just the view from
the Judge. And maybe that’s something that
you can take out of this Court and use, but I
doubt that you will.

Generally, however, a judge’s “demonstration of prejudice against

the lawyer for the defendant does not require recusal.” Brewster v.

Dist. Ct., 811 P.2d 812, 814 (Colo. 1991). That is, although conflict

between the judge and counsel may sometimes warrant

disqualification, it is necessary only where the judge’s manifestation

of hostility or ill will toward an attorney indicates the absence of

impartiality required for a fair trial. Id.; see Bocian v. Owners Ins.

Co., 2020 COA 98, ¶ 24. For instance, in Brewster — a case on

which Jennings relies — the trial judge held defense attorneys in

contempt based on unsupported allegations and then capriciously

denied the prosecution’s motion to dismiss the charge against the

defendant. See 811 P.2d at 814. The supreme court decided that

those circumstances were so troubling as to warrant the judge’s

disqualification. See id.

15
¶ 31 The record here reflects nothing so egregious. The judge

criticized Jennings’s second retained attorney in passing as he was

leaving the case. This brief reproach, while ungenerous, did not

reflect such intense hostility as to require recusal. Cf. Drake, 748

P.2d at 1249 (concluding that, while the record revealed the trial

court’s rude comments to defense counsel and irritation with

defense witnesses, the record as a whole did not establish that bent

of mind warranting a finding of bias against the defendant). And

Jennings points to nothing in the record supporting her claim that

the judge transferred his displeasure with her second retained

attorney to her. Cf. Parsons v. Allstate Ins. Co., 165 P.3d 809, 819

(Colo. App. 2006) (“[M]ere opinions or conclusions that the judge is

biased are insufficient.”). While Jennings highlights the judge’s

frustration with her repeated attempts to change lawyers — an

issue to which we will turn next — this frustration plainly related to

Jennings’s decisions, not her second retained attorney’s.

¶ 32 Last, Jennings contends that the trial judge demonstrated

actual bias against her when appointing the public defender’s office

after allowing her second retained attorney to withdraw. The judge

noted that Jennings faced “very serious charges” (including level 1

16
and 2 drug felonies), and the judge said, “She’s a very difficult

client. And so somebody needs to see her between now and Friday

[her next scheduled court appearance]. This is not your ordinary

client. . . . She’s already fired two private counsel . . . .” Jennings

maintains that the judge’s comments were “inappropriate and

unnecessary.” Even if so, the comments fell short of requiring

recusal. They were rooted in the events of the proceedings —

Jennings had indeed fired two private attorneys over the course of

six months and she faced serious charges.

[O]pinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of prior
proceedings, do not constitute a basis for a
bias or partiality motion unless they display a
deep-seated favoritism or antagonism that
would make fair judgment impossible.

Dobler, ¶ 25 (quoting Liteky, 510 U.S. at 555); see People in Interest

of S.G., 91 P.3d 443, 448 (Colo. App. 2004). In our view, the judge’s

comments were relatively mild; they did not reflect a deep-seated

antagonism toward Jennings that rendered the proceedings

inexorably unfair. See also Smith v. Dist. Ct., 629 P.2d 1055, 1057

(Colo. 1981) (“Prejudice must be distinguished from the sort of

17
 personal opinions that as a matter of course arise during a judge’s

hearing of a cause.”).

¶ 33 In sum, we do not perceive actual bias or prejudice on the trial

judge’s part.

IV. Conclusion

¶ 34 The judgment is affirmed.

JUDGE BROWN and JUDGE VOGT concur.

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