ANÁLISIS DEL TENOR DOCUMENTAL

Defendant had four different counsel throughout his case (his second counsel committed suicide; the third counsel had a mental health breakdown during the middle of trial, which caused a mistrial). There was at least a two and a half year delay between indictment and trial, which included eight rescheduled trial dates. The case was on interlocutory appeal for a portion of this time, and there were delays due to the lawyer changes.

Constitutional speedy trial begins at filing of charges or with arrest. Defendant has the burden of proving it has been denied. The determination is based on a balancing of four factors: length of delay; reasons for delay; defendant's assertion or demand for a speedy trial; and prejudice to the defendant. This appeal follows the U.S. Supreme Court case of Vermont v. Brilion, 129 S.Ct. 1283 (2009), where the court held that delays caused by defendant's counsel are attributable to the defendant for constitutional speedy trial purposes. The court reminds us that where the delay is necessary to provide the defendant with effective assistance of counsel, the court should conduct an inquiry to see if any counsel is available that can conduct the trial within the statutorily proscribed time and the record should show that the delay was necessary to protect the right to effective assistance of counsel. See People ex rel. Gallagher v. District Court, 933 P.2d 583, 588 (Colo. 1997). If the length of the delay (first factor) is presumptively prejudicial (suggested to be approaching one year) then the other factors are considered, but the burden of proof is still with the defendant. The court goes through a very fact-specific analysis addressing such issues as whether to attribute an interlocutory appeal to the defense. The defendant argues that it was the courts error that led to it. The Court of Appeals notes that it was the defendant erroneously convincing the court to make that error that led to the appeal, thus it is attributable to the defendant. The court also spends time discussing the complexity of the case and how that impacts what is a reasonable speedy trial. There are many more individual instances which are analyzed before the court concludes under the totality of the circumstances there has not been a violation.

The COA rationale hinges on the issue of prejudice, and defendant’s inability to demonstrate prejudice under the facts of this case.

M. CHANGE OF VENUE

People v. Nevarez-Zambrano, 222 P.3d 329 (Colo. Jan. 11, 2010)

Defendant was charged with Criminal Impersonation. Defendant worked and earned wages in Yuma County. He allegedly used a fictitious SSN to obtain employment in Yuma County. Defendant utilized Amalia’s Tax Service in Weld County to file his tax forms. The trial court granted a motion to change venue to the 13th Judicial District, concluding that the filing of the tax forms was not an act in furtherance of the Criminal Impersonation.

The SC agrees and finds that the Defendant would have ―fully completed‖ the alleged crime prior to the filing of any tax returns. Therefore, the defendant’s act of filing tax returns from a Greeley tax preparer could not constitute an act in furtherance of the crime. Thus, no nexus between criminal act and Weld County.

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IV.

COUNSEL

A. DISQUALIFICATION OF DISTRICT ATTORNEY

People v. Perez, 238 P.3d 665(Colo. Sept. 13, 2010)

The DA’s Office received over $90,000 in compensation from the Department of Corrections for the costs of prosecuting defendant. There were some irregularities with the funding arrangement, and the County Commissioners had not approved the funding. Trial court held that the DA had a ―financial interest‖ in the prosecution of defendant and disqualified the DA. The SC overruled. The SC concluded that the trial court focused exclusively on the financial interest aspect to the exclusion of considering whether ―that[financial interest] would render it unlikely that the defendant would receive a fair trial.‖ Therefore, a DA or her office’s financial interest is a statutorily authorized basis for disqualification only if the financial interest would render it unlikely that the defendant would receive a fair trial. Because there is no evidence that the funding arrangement in this case would render it unlikely that Perez would receive a fair trial, the court reversed the trial court's disqualification order.

B. DEFENDANT’S RIGHT TO COUNSEL OR SELF-REPRESENTATION

People v. Brante, 232 P.3d 204 (Colo. App. 2009) cert. denied, 2010 WL 2489372 (Colo.

2010)

The Sixth Amendment right to counsel does not require that a pro se defendant who voluntarily absents himself from his criminal trial be appointed counsel during his absence.

C. CONFLICTS OF INTEREST/COUNSEL OF CHOICE

People v. Samuels, 228 P.3d 229 (Colo. App. 2009) cert. denied, 2010 WL 1267362 (Colo.

2010)

A conflict of interest under the Rules of Professional Conduct does not necessarily equate with a violation of a defendant's right to effective assistance; of counsel. Defense counsel does not have a conflict of interest where he represented a prosecution witness in unrelated cases and his representations of that witness ended before his representation of the defendant began.

People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009)

In order to demonstrate a violation of her Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected her lawyer's performance. Follows Cuyler v. Sullivan, 446 U.S. 335 (1980). A defendant has a right to be present at every critical stage of her criminal trial. Here: Where the defendant's privately-retained attorneys met with the court and

the prosecutors in the defendant's absence, disclosed client confidences, and concealed the disclosure from the defendant, the defendant's Sixth Amendment rights to conflict-free counsel and counsel of her choice were violated.

People v. Curren, 228 P.3d 253 (Colo. App. 2009) cert. denied, 2010 WL 1436207 (Colo.

2010)

Defendant alleged that counsel told him to flee to Mexico before trial; counsel denied any such action. The issue was summarily resolved, and the defendant proceeded to trial with counsel. Defendant did not testify at trial. In a later 35(c) motion, defendant alleged that counsel had an actual conflict of interest and should have withdrawn from the case. The 35(c) court found that (1) counsel had not advised the defendant to abscond, but (2) the allegation alone created an actual conflict of interest. The court held that counsel should have withdrawn, and ordered a new trial. The Court of Appeals affirmed, holding there was evidence in the record to support the conclusion that trial counsel had an actual conflict of interest, and that the defendant could have been adversely affected (the court reasoned that counsel may not have called the defendant to testify because he feared the defendant's allegations might be revealed to the jury).

D. INEFFECTIVE ASSISTANCE OF COUNSEL

People v. Brown, __P.3d__, 2010 WL 726038 (Colo. App. March 4, 2010) cert. denied, 2010

WL 3529295 (Colo. 2010)

In claiming ineffective assistance of counsel based on counsel's failure to perfect an appeal, the requisite prejudice differs from the prejudice required in most other ineffectiveness claims because a defendant need only demonstrate that (1) counsel's performance caused a forfeiture of the defendant's right to appeal, and (2) the defendant could have and would have pursued the appeal. The defendant need not establish any likelihood' of success on appeal.

Under the fugitive disentitlement doctrine, an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. Here: After sentencing, the defendant was granted bond pending appeal. He fled shortly after counsel filed a notice of appeal, thereby forfeiting his right to appeal.

Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473 (2010)

Counsel provides constitutionally deficient representation under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), if she fails to advise her non-citizen client whether a plea of guilty carries the risk of deportation. More precisely, where deportation is the clear consequence of pleading guilty, counsel has a duty to advise the defendant of that fact; where the deportation consequences of a plea are unclear, counsel must advise the defendant that pleading guilty may carry adverse immigration consequences. The court did not extend its holding to other collateral consequences of pleading guilty, finding that deportation has unique consequences and is intimately related to the criminal process. And the court did not address whether petitioner is entitled to relief, which depends on whether he can show prejudice, an issue the lower courts can address on remand

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People v. Brown, __P.3d__, 2010 WL 726038 (Colo. App. March 4, 2010) cert. denied, 2010

WL 3529295 (Colo. 2010)

Defendant fled while on an appeal bond. Defendant’s counsel withdrew and never perfected his appeal. The defendant claimed ineffective assistance of counsel for the failure to perfect an appeal, which he believes he would have won.

A defendant claiming ineffective assistance must show that counsel’s performance was deficient and that the poor performance caused him prejudice. The COA concluded it was defendant’s flight, not counsel’s performance, that impaired his ability to appeal.

E. WHEN RIGHT TO COUNSEL APPLIES- WAIVER

People v. Vickery, 229 P.3d 278 (Colo. 2010)

Defendant was in custody on charges in one jurisdiction, and was interviewed by officers investigating a different offense in another jurisdiction. He was represented by counsel on Case #1. Defendant was given a Miranda advisement on Case #2, signed a waiver, and then proceeded to discuss both offenses, volunteering information about Case #1. The trial court suppressed the defendant's statements, finding that defendant's waiver was knowing, voluntary, and intelligent, but was insufficient to waive defendant's Sixth Amendment right to counsel. Held: A knowing, voluntary, and intelligent Miranda waiver is sufficient to waive both a defendant's Fifth and Sixth Amendment rights to counsel. Citing Montejo v. Louisiana, 129 S.Ct. 2079, 2090, 2092 (2009).

People v. Broder, 222 P.3d 331 (Colo. Jan. 11, 2010)

Defendant was an Erie police officer transporting an 18-year old female prisoner to jail. He purportedly made unwanted sexual advances toward her during transport. After the victim reported, Greeley Police arrested Defendant and initiated an interrogation. Following the Miranda advisement, Defendant asked to speak to his lieutenant about getting ―coverage‖ for him. The detective and Defendant engaged in a vague discussion for several minutes, but the detective eventually asked if he wanted to contact his lieutenant about ―coverage for counsel.‖ Defendant agreed that was his concern, then stated ―I’ll talk to you.‖ Defendant reiterated this two more times. He then signed the Miranda waiver. The trial court suppressed Defendant’s statements, after finding that he had invoked his right to counsel and such request was not honored.

The SC overruled and held that Defendants statements about counsel were ambiguous; therefore, the detective was permitted to ask additional questions to clarify Defendant’s ambiguous

statements. It is only in those situations in which the defendant’s statement about the right to counsel are unambiguous that the police must cease all questioning. A statement is ambiguous when it gives rise to opposing inferences. The SC also focused on the fact that Defendant here was a police officer who potentially faced civil or administrative matters, and his vague