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
May 26, 2022
2022COA56
No. 19CA2359, People v. Smith — Attorneys and Clients —
Ineffective Assistance of Counsel; Criminal Law —
Postconviction Remedies — Postconviction Counsel — Waiver
of Claims
As a matter of first impression in a criminal postconviction
proceeding under Crim. P. 35(c), a division of the Court of Appeals
holds, consistent with Dooly v. People, 2013 CO 34, that
postconviction counsel does not waive claims raised in a pro se
defendant’s postconviction motion by omitting them from a
supplemental motion. Applying this holding here, the division
concludes that postconviction counsel’s failure to reassert the
defendant’s pro se claims in her supplemental motion did not waive
those claims. Accordingly, the portion of the order finding a waiver
is reversed and the case is remanded for the trial court to make
findings on the remaining pro se claims.
COLORADO COURT OF APPEALS 2022COA56
Court of Appeals No. 19CA2359
Larimer County District Court No. 11CR1418
Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony Robert Smith,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE FREYRE
Fox and Gomez, JJ., concur
Announced May 26, 2022
Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Adrienne R. Teodorovic, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Anthony Robert Smith appeals the postconviction court’s order
denying his Crim. P. 35(c) motions without a hearing. He argues
that the court erroneously found his pro se claims waived when
appointed counsel omitted them from her supplemental
postconviction motion. He also asserts that his claims warranted a
hearing. As a matter of first impression, we hold that appointed
counsel does not waive claims in a pro se motion by omitting them
from a supplemental motion. Therefore, we remand the case for the
postconviction court to consider the issues raised in Smith’s pro se
Crim. P. 35(c) motion and to determine whether a hearing is
warranted. However, we discern no error in the court’s ruling on
Smith’s supplemental motion and affirm that portion of the order.
I. Background
¶2 S.F., an eight-year-old girl, left her home with her mother
amidst her parents’ divorce proceedings. They moved to Fort
Collins to stay with her aunt (A.W.), her aunt’s boyfriend (Smith),
and her cousin (H.W.), a nine-year-old girl. Shortly thereafter, S.F.
told her mother that she had seen Smith walk around the house
naked from the waist down. She also said Smith had taken off her
and H.W.’s pants and had “walked his fingers” up their legs towards
1
their private areas. He also made them watch pornography on the
internet.
¶3 After the police were contacted, S.F. underwent a short
interview and a forensic interview. She repeated what she had told
her mother. But in the forensic interview, she added that Smith
slapped her face to make her watch the pornography. S.F. also told
the interviewer that Smith had removed her pants and underwear,
rubbed his hand on the outside of her private area, and touched
S.F.’s and H.W.’s breasts.
¶4 Police executed a search warrant at Smith’s home. They
seized a video camera containing a deleted video. The video showed
S.F. and H.W. asking Smith to show them the pornography website
he was watching earlier. Smith ignored the girls for a while but
eventually loaded the website on his laptop and let the girls watch.
¶5 The prosecution charged Smith with one count of sexual
assault on a child-position of trust-pattern of sexual abuse, three
counts of sexual assault on a child-position of trust, and four
counts of promotion of obscenity to a minor. A jury convicted him
of all charges. A division of this court affirmed his convictions in
2
People v. Smith, (Colo. App. No. 14CA0085, Dec. 31, 2015) (not
published pursuant to C.A.R. 35(f)).
¶6 In 2018, Smith filed a pro se Crim. P. 35(c) motion asserting
twelve claims related to ineffective assistance of counsel, newly
discovered evidence, and prosecutorial misconduct. Smith asked
for court-appointed counsel and a hearing. The postconviction
court appointed counsel, who then filed a supplemental Crim. P.
35(c) motion that expanded on three of Smith’s original claims and
clarified that Smith challenged only the effectiveness of his prior
trial counsel.1 The prosecution filed a response and the court
issued a written order addressing and denying the claims raised in
counsel’s supplemental motion without a hearing.
¶7 In footnote one of its order, the postconviction court found the
remaining issues raised in Smith’s pro se petition waived because
counsel had not reasserted them in the supplemental motion and
the prosecution had not responded to them. In support, it cited
People v. Breaman, 939 P.2d 1348, 1351 (Colo. 1997)
1 Smith was represented by several different attorneys throughout
the trial court proceedings.
3
(court-appointed public defenders do not have a duty to prosecute
meritless postconviction claims).
II. Waiver
¶8 Smith contends that the postconviction court erred in finding
that he waived his pro se claims by not reasserting them in
counsel’s supplemental motion. Because the supplemental motion
does not evidence an intent to waive or abandon the remaining pro
se claims, we agree.
A. Standard of Review and Law
¶9 We review a postconviction court’s decision to deny a Crim. P.
35(c) motion without a hearing de novo. People v. Cali, 2020 CO 20,
¶ 14; People v. Castillo, 2022 COA 20, ¶ 15.
¶ 10 When asserting the ineffective assistance of trial or appellate
counsel, a defendant must show (1) “that counsel’s performance
was deficient” and (2) “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also People v. Valdez, 789 P.2d 406, 410 (Colo. 1990) (the test for
ineffective assistance of appellate counsel is whether counsel’s
performance was deficient and prejudiced the defendant). Courts
must indulge a strong presumption that counsel’s conduct falls
4
within the wide range of reasonable professional assistance and
make “every effort . . . to eliminate the distorting effects of
hindsight.” Strickland, 466 U.S. at 689.
¶ 11 A court may deny a Crim. P. 35(c) motion without a hearing
only if the motion, files, and record clearly establish that the
defendant’s allegations are without merit and do not warrant
postconviction relief. Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003). The motion may be denied without a hearing only if the
record establishes that the defendant’s allegations, even if true,
would fail to establish either the deficient performance or prejudice
prongs of the Strickland test. Id.
¶ 12 To establish deficient performance, a defendant must prove
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. “The prejudice
component requires the defendant to prove that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” People v.
Garcia, 815 P.2d 937, 941 (Colo. 1991) (quoting Strickland, 466
U.S. at 694).
5
¶ 13 As relevant here, Crim. P. 35(c)(3)(I) and (II) require a pro se
defendant to initiate the postconviction review process by filing a
timely and compliant pro se motion. If a defendant requests and
the court appoints counsel, then counsel may request additional
time to investigate and “add any claims” counsel believes have
merit. Crim. P. 35(c)(3)(V). While court-appointed counsel has no
duty to prosecute meritless postconviction relief claims, Breaman,
939 P.2d at 1351, counsel may not seek dismissal of a defendant’s
claims against the defendant’s wishes, regardless of counsel’s belief
in the claims’ merits. Dooly v. People, 2013 CO 34, ¶ 7. Indeed, “a
district court is not authorized to grant an attorney’s motion to
dismiss his client’s application for postconviction relief without his
client’s informed consent.” Id. at ¶ 10. Moreover, the
postconviction court has an independent obligation to make
findings of fact and conclusions of law regarding Crim. P. 35(c)
claims, “irrespective of [an] attorney’s conclusions or analysis.”
Breaman, 939 P.2d at 1352.
¶ 14 Because a defendant’s right to postconviction review is
statutory, “a waiver of the right need only be voluntary.” People v.
Wiedemer, 852 P.2d 424, 438 (Colo. 1993). A voluntary decision is
6
one made intentionally, freely, deliberately, and without coercion.
People v. Martinez, 70 P.3d 474, 478 (Colo. 2003); Cardman v.
People, 2019 CO 73, ¶ 21. And, “we must indulge ‘every reasonable
presumption against waiver,’” People v. Rediger, 2018 CO 32, ¶ 46
(citation omitted), even for a “nonfundamental right,” Phillips v.
People, 2019 CO 72, ¶ 21.
B. Analysis
¶ 15 We conclude that Smith did not waive his pro se claims for two
reasons. First, to the extent the postconviction court found a
waiver based on counsel’s failure to reassert the pro se claims in
her supplemental motion, we disagree. Counsel titled her motion
“Supplemental Motion For Post-Conviction Relief.” The plain
meaning of supplement is “to add or serve as a supplement to.”
Merriam-Webster Dictionary, https://perma.cc/GN3D-PF8T; see
also Black’s Law Dictionary 1395 (11th ed. 2019) (“Unlike an
amended pleading, a supplemental pleading merely adds to the
early pleading and does not replace it.”) (emphasis added). This
meaning is consistent with the plain language of Crim. P.
35(c)(3)(V), permitting court-appointed counsel to add claims to a
defendant’s pro se motion. Indeed, it would make little sense to
7
require counsel to reassert claims already made. Cf. People v.
Clark, 2015 COA 44, ¶ 111 (increasing judicial efficiency is an
important concern because doing so preserves a scarce public
resource). Therefore, we conclude that court-appointed counsel is
not required to reassert issues raised in a pro se motion in a
supplemental motion in order to preserve them for the
postconviction court’s ruling and this court’s review.
¶ 16 Second, the People have not identified, nor can we find, any
language in the supplemental motion that purports to abandon or
waive any issues raised in Smith’s pro se motion. To be sure,
counsel has no duty to pursue meritless claims; however, nothing
in the record shows that counsel considered Smith’s pro se claims
to be meritless or that she sought (or received) Smith’s informed
consent to waive any claims. And we must indulge every
presumption against waiver. Phillips, ¶¶ 16, 18, 22 (declining to
infer waiver from counsel’s behavior).
¶ 17 In Dooly, court-appointed counsel filed a motion to dismiss the
defendant’s pro se postconviction motion on the grounds that it had
no merit. Dooly, ¶ 1. The district court granted counsel’s motion,
and a division of this court affirmed. Id. On review, our supreme
8
court discussed the decisions counsel and the defendant may
make, recognizing that trial counsel is generally accepted as the
“captain of the ship” and that appellate counsel may decide which
issues to pursue on appeal. Id. at ¶ 7. But in the postconviction
context, the court found that “[t]o permit the denial of
postconviction relief for lack of merit under the guise of granting
[counsel’s] motion to dismiss his client’s application would be little
different from permitting the appointment of counsel to ‘serve as the
court’s fact-finder,’ precisely the procedure we rejected in
Breaman.” Id. at ¶ 10. And it held that neither counsel nor the
postconviction court may dismiss a defendant’s claims without
informed consent. Id.
¶ 18 Applying Dooly’s holding here, we conclude that footnote one is
analogous to a postconviction court’s dismissal of a defendant’s
claims and that it fails to satisfy a postconviction court’s
independent obligation to make findings of fact and conclusions of
law for each claim raised. See Breaman, 939 P.2d at 1352. Absent
evidence of Smith’s intent to waive his pro se claims, we reverse the
portion of the postconviction court’s order finding a waiver and
9
remand this case to the postconviction court for an independent
evaluation of Smith’s pro se claims.2
III. Remaining Claims
¶ 19 Smith next contends that the postconviction court erroneously
denied two of his claims without a hearing.3 He argues that trial
counsel was ineffective in failing to make a record of the trial court’s
ex parte communications with the jury and in failing to consult an
independent expert to assist in preparing for cross-examination of
the prosecution’s generalized expert witness. We address and reject
each contention.
A. Ex Parte Communication
¶ 20 Once the jury began deliberating, the trial court explained to
the parties that it would ask the clerk to speak with the jury around
5 p.m. to see whether it was close to reaching a verdict. Assuming
the jury was not close to a verdict, the court said it saw no reason
to keep the jury late. The court told counsel that it would need to
admonish the jury, and that it could do so either off the record
2 We express no opinion on the merits of Smith’s pro se claims.
3 Because Smith does not appeal the court’s ruling on his failure to
investigate a witness or cumulative error, we deem them
abandoned. See People v. Liggett, 2021 COA 51, ¶ 53.
10
without counsel present or in the courtroom with counsel present.
Defense counsel stated that she did not have a problem with the
court admonishing the jurors off the record.
¶ 21 During deliberations, the jury asked two questions. And at
6:04 p.m., the jury asked to view a video. After a brief discussion
with both counsel, the court offered to personally deliver a written
response to the jury. Defense counsel objected and said the court
should not speak with the jury without counsel present, but she
agreed the bailiff could deliver the response. Instead, the court
brought the jury into the courtroom to ascertain the status of
deliberations, and defense counsel expressed her concern about the
jurors feeling rushed. The court gave the following instructions:
THE COURT: I’ve received your question. I
have an answer to your question; however, I’m
afraid we cannot wait longer, and I don’t want
-- and I know you all wanted to reach a verdict
tonight, but bottom line is we can’t stay. And I
-- it would be inappropriate to say you’ve got
five minutes, because you’d be rushed. And I
want -- I think, all the parties want you to take
as much time as you need to reach a verdict.
So I’m sorry to say you’re going to have to
come back Monday morning, but -- you’re
going to have to come back Monday morning.
And so as you go home over the weekend, all
the same reminders: don’t talk to anybody,
don’t talk to each other.
11
And this becomes important at this stage,
because once you’ve started deliberating, it’s
easy to talk to each other. Don’t do that. You
can only talk when you’re all together in the
jury room.
Of course, again, don’t do any
investigation and don’t do any research. And
what I will do, I have other things scheduled
Monday morning. I’m not going to visit with
you. I’m going to instruct you that whenever
you get here, you can begin deliberating.
I would -- as you go back into the jury
room, you can -- I would say you can start at
8:30 or 9:00. I wouldn’t encourage any later
than that. I don’t know if you can reach an
immediate consensus, but I’d say 8:30 or 9:00,
and then we’ll go through, take as long as you
need to finish reaching your verdict, and we’ll
go through the procedure Monday morning
that we went through this afternoon.
(Emphasis added.)
¶ 22 On direct appeal, Smith raised the ex parte communication
issue, and a division of this court held that counsel’s affirmative
acquiescence invited any error and that Smith had waived the right
to object. Smith, No. 14CA0085, slip op. at 6-7.
¶ 23 The postconviction court denied Smith’s claim and found that,
even assuming counsel’s deficient performance, he had not shown
what post-verdict conversations with the jurors would have revealed
and, thus, he failed to establish prejudice.
12
¶ 24 We discern no error in the court’s ruling for four reasons.
First, we are not convinced that any ex parte communications
occurred. The record before us reveals that the court intended to
have the clerk speak with the jury at the end of the day, and it gave
counsel the choice of being present or absent when it admonished
and released the jury. It further shows that the jury asked two
questions and deliberated well beyond 5 p.m., but it does not reveal
any ex parte communications during this time. And when counsel
objected to the court personally delivering any messages to the jury
concerning its request to view the video, the court brought the jury
into the courtroom and released it in counsel’s presence.
¶ 25 Second, while Smith argues that juror affidavits “would have
assisted in resolving this issue,” he does not explain how they
would have assisted or what they would have said. Indeed,
postconviction counsel made no efforts to obtain the jurors’ contact
information to learn what their affidavits might have revealed. See
People v. Simpson, 69 P.3d 79, 80-81 (Colo. 2003) (defendant has
the burden of providing sufficient facts to warrant a hearing).
Moreover, given the constrictions of CRE 606(b), Smith has not
established how he would have obtained this information.
13
¶ 26 Third, we are not persuaded that the court’s alleged ex parte
communications constituted a persistent reminder to the jury that
they needed to reach a decision and may have led it to feel rushed,
thereby undermining confidence in the verdict, because the record
does not support this argument. Instead, the record shows that the
court twice instructed the jurors to take as much time as they
needed to reach a verdict, and, absent contrary evidence, we
presume the jurors followed the court’s instructions. See People v.
Salas, 2017 COA 63, ¶ 14. Moreover, in light of the overwhelming
evidence presented in this case, including the video, even assuming
deficient performance, we discern no prejudice. See Dunlap v.
People, 173 P.3d 1054, 1068 (Colo. 2007) (prejudice prong of the
Strickland analysis not established where there is overwhelming
evidence of defendant’s guilt).
¶ 27 Fourth, we reject Smith’s claim that if the error had been
properly preserved, his conviction would have been reversed on
direct appeal. While we agree that preserved ex parte
communications are typically reviewed for harmless error, they are
not entitled to automatic reversal. Key v. People, 865 P.2d 822, 826
(Colo. 1994). And even assuming an erroneous ex parte
14
communication occurred, the postconviction court noted, and we
agree, that the error would likely have been found harmless in light
of the trial court’s instruction to the jurors to take their time
reaching a verdict. Cf. People v. Urrutia, 893 P.2d 1338,1342-43
(Colo. App. 1994) (finding harmless error when the trial court did
not indicate that jurors were under any time limit to reach a
consensus or declare a deadlock); People v. Fell, 832 P.2d 1015,
1020 (Colo. App. 1991) (telling a prospective juror that they “will be
out of here” in approximately two and one-half days was not
coercive); Allen v. People, 660 P.2d 896, 898 (Colo. 1983)
(instruction that jury only had another fifteen minutes to deliberate
before a mistrial was declared was coercive).
¶ 28 Therefore, we discern no error in the postconviction court’s
denial of this claim without a hearing. See Ardolino, 69 P.3d at 77.
B. Expert Consultation
¶ 29 The prosecutor endorsed and presented generalized expert
testimony on child sexual abuse.4 Smith contends trial counsel
4Generalized experts provide general context to educate the jury in
complex cases and often know little or nothing about the case facts,
have never met the victim, and have not performed any case-related
analyses or examinations. People v. Cooper, 2021 CO 69, ¶¶ 49-53.
15
should have consulted an independent expert to assist her in
cross-examining the prosecution’s expert. We disagree for two
reasons.
¶ 30 First, whether to consult or retain an expert is a matter of
strategy. Davis v. People, 871 P.2d 769, 773 (Colo. 1994) (the
decision to interview or call a particular witness, if made in the
exercise of reasonable professional judgment, is a tactical decision
that does not amount to ineffective assistance); People v. Newmiller,
2014 COA 84, ¶ 48 (Where defense counsel’s decision not to call an
expert to testify “was strategic and adequately informed,” defendant
could not overcome “the ‘virtually unchallengeable’ presumption
that counsel’s decision was objectively reasonable.”) (citation
omitted); People v. Aguilar, 2012 COA 181, ¶ 12 (Defense counsel’s
decision not to hire an expert “was a matter of trial strategy” that
fell within “the wide range of professionally competent assistance”;
further, “[d]efendant’s assertion that an expert could have
contradicted the prosecution’s evidence was facially speculative.”);
People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001) (“[T]he
tactical decision not to call . . . an expert witness was within the
discretion of trial counsel and does not support defendant’s claim of
16
ineffective assistance of counsel.”). The record reveals that,
initially, Smith’s counsel sought state funds to finance the cost of
an expert. But approximately two weeks later, counsel withdrew
her motion and said, “[u]pon further review of the case, the
undersigned has determined that an expert witness for the defense
will not be necessary.” Thus, the record shows that counsel
informed herself of the facts of the case and made a tactical
decision not to use an expert’s assistance to prepare for
cross-examination.
¶ 31 Second, decisions concerning whether and how to conduct
cross-examination are strategic ones committed to counsel’s
discretion. See Arko v. People, 183 P.3d 555, 558 (Colo. 2008)
(decision to conduct cross-examination is a strategic decision by
counsel). And when evaluating counsel’s decisions, we must forgo
the use of hindsight, and give counsel’s actions a strong
presumption of falling within the wide range of reasonable
professional conduct. Strickland, 466 U.S. at 689.
¶ 32 Trial counsel’s cross-examination challenged the expert’s
veracity by revealing her limited experience in dealing with
nonabused children, her admission to relying on studies with
17
flawed methodologies, her concession that almost any child
behaviors can be consistent with sexual abuse, and the use of
effective hypotheticals. Smith does not explain what additional
information that a jury would have found persuasive could have
been gleaned from consulting an independent expert. And “[m]ere
disagreement as to trial strategy will not support a claim for
ineffective assistance of counsel.” Bradley, 25 P.3d at 1275. Given
the overwhelming evidence presented at trial, we conclude that the
outcome likely would not have changed. See Dunlap, 173 P.3d at
1068.
¶ 33 Accordingly, we discern no error in the postconviction court’s
decision to deny this claim without a hearing. See Ardolino, 69 P.3d
at 77.
IV. Conclusion
¶ 34 The order is affirmed in part and reversed in part and the case
is remanded for the postconviction court to make further findings
on the claims raised in the pro se motion.
JUDGE FOX and JUDGE GOMEZ concur.
18