PEOPLE v. VALDEZ

JUSTICE KIRSHBAUM delivered the Opinion of the Court.

Appellant Lloyd Louis Valdez (Valdez) filed a Crim. P. 35(c) motion for post-conviction relief in the trial court, asserting that he had been denied effective assistance of appellate counsel in seeking this court's certiorari review of a judgment of the Court of Appeals. The motion requested the trial court to "find . . . that meritorious grounds for review of his conviction exist" and to "grant him an additional period of time to perfect his writ of certiorari." The trial court denied the motion, and Valdez appealed. We affirm.

The appeal was initially filed in the Court of Appeals, and subsequently transferred to this court. See § 13-4-110, 6A C.R.S. (1987); C.A.R. 50.

I

On November 19, 1982, Valdez threatened to kill two prison guards with a pair of scissors at the Colorado Correctional Facility in Golden, Colorado. On March 14, 1983, Valdez was convicted by a Jefferson County District Court jury of the offense of first degree assault, in violation of section 18-3-202(1)(e), 8 C.R.S. (1978), and of five counts of habitual criminal charges, in violation of section 16-13-101, 8 C.R.S. (1978 and 1982 Supp.). The trial court imposed a sentence of life imprisonment, and Valdez appealed.

The Colorado Court of Appeals affirmed the judgment of the trial court on March 27, 1986. People v. Valdez, 725 P.2d 29 (Colo.App. 1986). Valdez timely filed a petition for rehearing with the Court of Appeals, which petition was denied. Valdez, by his attorney, then filed three motions for extension of time within which to file a petition for writ of certiorari with this court. All of the motions were granted. The third order extended the time for filing such petition to August 5, 1986, and contained the statement, "No further extensions."

The period of time requested by the three motions totaled 22 days.

On August 5, 1986, Valdez' appellate counsel filed a motion requesting one additional day within which to file the petition. On August 6, 1986, Valdez' appellate counsel filed a twenty-six page petition for writ of certiorari together with a motion requesting permission to file a petition in excess of twelve pages. On that same date, August 6, 1986, this court denied the motion for further extension of time. On August 7, 1986, this court denied the request for leave to file a petition in excess of twelve pages. Valdez' appellate counsel promptly filed a motion for reconsideration of the denial of the request for extension of time or, alternatively, for permission to withdraw and for appointment of private counsel. The motion expressly referred to the contents of the petition for writ of certiorari in asserting that Valdez was denied a fair trial and that the Court of Appeals had erred in affirming his convictions. The motion was denied on August 11, 1986, and the Court of Appeals issued its mandate on August 19, 1986.

The motion stated that the petition "is written but additional time is needed for the final typing, proofreading, photocopying and filing of the [p]etition." In an affidavit attached to Valdez' Crim. P. 35(c) motion, the appellate counsel averred that the petition was written by August 5, 1986, "but was only partially typed due to the fact that my secretary left early."

Valdez subsequently filed a motion for post-conviction relief with the trial court pursuant to Crim. P. 35(c)(2), alleging ineffective assistance of counsel on appeal. The trial court conducted a hearing on September 18, 1987, at the conclusion of which it denied the motion by means of an oral ruling. In a subsequent written order denying Valdez' motion for rehearing, the trial court held that "defendant's appellate counsel's performance was reasonable under prevailing professional norms and after considering the circumstances of this case." Referring to Strickland v. Washington, 466 U.S. 668 (1984); Stroup v. People, 656 P.2d 680 (Colo. 1982), and People v. Williams, 736 P.2d 1229 (Colo.App. 1986), cert. denied (1987), the trial court also concluded that some prejudice to Valdez must be established to authorize relief pursuant to Crim. P. 35(c), that such prejudice had not been established, and that such prejudice could not be presumed. This appeal ensued.

Valdez filed a motion on February 6, 1987, and filed a second motion on August 20, 1987. At all stages of this post-conviction proceeding Valdez was represented by counsel other than the attorney who had served as his attorney for purposes of appealing the 1983 convictions.

II

The trial court concluded that under the circumstances of this case Valdez failed to establish ineffective representation by his appellate counsel. While we agree with this conclusion, we do so on grounds quite different from those relied upon by the trial court.

Crim. P. 35(c)(2)(VI) permits application for post-conviction relief by a person whose judgment of conviction has been affirmed on appeal if the application alleges a ground "properly the basis for collateral attack upon a criminal judgment." It is well established that a violation of the right to effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution and article II, section 16, of the Colorado Constitution in connection with a first appeal of right constitutes such a ground. Penson v. Ohio, 109 S.Ct. 346 (1988); Evitts v. Lucey, 469 U.S. 387 (1985); Ross v. Moffitt, 417 U.S. 600 (1974); Rodriguez v. United States, 395 U.S. 327 (1969); Anders v. California, 386 U.S. 738 (1967); Douglas v. California, 372 U.S. 353 (1963); Stroup v. People, 656 P.2d 680 (Colo. 1982); People v. Williams, 736 P.2d 1229 (Colo.App. 1986), cert. denied (1987). However, in Wainwright v. Torna, 455 U.S. 586 (1982), the United States Supreme Court held, per curiam, that under the sixth amendment to the United States Constitution "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court." Id. at 587. We therefore must initially determine whether Valdez was entitled as a matter of constitutional right to the assistance of counsel at all in filing a petition for writ of certiorari with this court from the final judgment of the Court of Appeals affirming his conviction at trial.

In Wainwright v. Torna, 455 U.S. 586 (1982), the Supreme Court noted that the Florida Supreme Court had limited mandatory appellate jurisdiction and that the respondent did not contend that he had a right to such mandatory review. Id. at 587 n. 3.

We first note that an attorney had been appointed to represent Valdez for the purpose of appealing his trial court conviction. Certainly an appellate attorney's responsibilities include the obligation to advise his or her client of the possibility of discretionary review by this court of a Court of Appeals judgment. It is undisputed that Valdez and his attorney agreed that the Court of Appeals erred in affirming the trial court's judgment and that a petition for writ of certiorari review should be filed.

It has long been recognized that this court in the exercise of its appellate jurisdiction has absolute discretion to grant or to deny a petition for writ of certiorari to review a final judgment of a lower tribunal. Colo. Const. art. VI, § 3; C.A.R. 50, 52(b); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970); Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968); People v. District Court, 28 Colo. 218, 64 P. 194 (1900). We have also recognized that under our rules of appellate procedure, as authorized by the grant of appellate jurisdiction contained in article VI, sec. 2(2) of the Colorado Constitution, a petition requesting this court to exercise its appellate jurisdiction to review a lower court judgment is an application of right. C.A.R. 51(a); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37; see People v. Williams, 736 P.2d 1229 (Colo.App. 1986), cert. denied (1987). Thus Valdez had a right to file his application for certiorari review by this court of the judgment of the Court of Appeals. He therefore had a right to obtain counsel and to rely upon such counsel's skill for the purpose of preparing and filing that application.

III

Valdez asserts that the trial court erred in applying the cause and effect test enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), to determine whether he was denied effective assistance of appellate counsel in this case. The two-part Strickland test requires a court to determine initially whether trial counsel's performance was deficient, as measured by the objective standard of reasonable conduct by a reasonably competent attorney. If the trial attorney's conduct was unreasonable under all the circumstances, the court must then determine if such deficient performance so prejudiced the defendant as to deprive the defendant of a fair trial. Id. at 687-88. The test was designed to provide a remedy in circumstances wherein the conduct of a trial attorney "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.

In Strickland, the Supreme Court focused its attention on the necessity of ensuring the integrity of the adjudicative process in the context of a trial setting. While this concern stems from due process notions as well as right to counsel principles, see Evitts v. Lucey, 469 U.S. 387, 392 (1985), such commingling of analytical formulae should not obscure the basic contours of the enunciated policy. At all stages of adjudicative proceedings each party is responsible for the thorough and vigorous presentation of that party's position. Whether the object be the accumulation of evidence, the cross-examination of adverse witnesses, or the analysis and application of pertinent legal precedent, each party in our adversarial system must assume the responsibility for accomplishing the task. When a party is represented by counsel at trial, that party becomes quite dependent upon that counsel's skill and training to participate meaningfully in the judicial process.

The identification and analysis of errors of law allegedly committed during prior adjudicative proceedings are critical to the appellate process. Because such skills normally are attained only through formal professional training and experience, an appellant or appellee represented by counsel is peculiarly dependent upon the advice and ability of that attorney. See Penson v. Ohio, 109 S.Ct. 346, 352 (1988).

In Evitts v. Lucey, 469 U.S. 387, the Supreme Court discussed the roles performed by appellate counsel in our adjudicative process. In Evitts, the federal trial court, in a post-conviction habeas corpus proceeding, found that appellate counsel's failure to file a statement of appeal with the Kentucky Court of Appeals constituted ineffective assistance of counsel for purposes of the sixth amendment. Based on that finding, the trial court issued a conditional writ of habeas corpus ordering the defendant's release from custody unless the Commonwealth of Kentucky either reinstated the defendant's appeal or retried him. The Court of Appeals for the Sixth Circuit affirmed the order.

Because neither party disputed the trial court's conclusion that the defendant's sixth amendment right to counsel had been violated, the court did not decide what test should apply to determine such violation. Id. at 392. The issue posed in Evitts was whether the Kentucky Court of Appeals violated the defendant's due process rights under the fourteenth amendment to the United States Constitution in granting the Commonwealth's motion to dismiss the defendant's initial appeal because defendant's counsel failed to file a statement of appeal within the time period authorized by Kentucky's rules of appellate procedure.

The Supreme Court initially held that criminal defendants are entitled by the provisions of the sixth amendment to the United States Constitution to effective assistance of counsel for the purpose of perfecting a first appeal as of right. The Court then held that because the defendant had been denied effective assistance of counsel in preparing his appeal, due process principles prohibited the Kentucky Court of Appeals from dismissing the appeal for failure to comply with a rule of appellate procedure.

Although the Supreme Court has not yet articulated a test for determining claims of ineffective assistance of appellate counsel, several federal and state courts have adopted various standards for resolving such claims. See, e.g., Evitts v. Lucey, 469 U.S. at 387 n. 9; People v. Boivin, 632 P.2d 1038 (Colo.App. 1981), cert. granted (1981), cert. dismissed (1982). In some cases, the two-prong test of Strickland has been routinely applied to require the defendant to establish the presence of a meritorious appeal or to demonstrate that the outcome of the appellate process would have been different but for the deficient performance of appellate counsel. See Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1965); Davis v. Wainwright, 498 So.2d 857 (Fla. 1986); Wilson v. Wainwright, 474 So.2d 1162 (Fla. 1985); Foust v. State, 489 N.E.2d 39 (Ind. 1986); Gering v. State, 382 N.W.2d 151 (Iowa 1986); Cartwright v. State, 708 P.2d 592 (Okla.Crim.App. 1985).

Other courts have indicated that, for purposes of determining whether a particular defendant has been denied the effective assistance of appellate counsel, deficient performance alone is sufficient to establish a deprivation of the constitutional right. See, e.g., Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986); People v. Valenzuela, 175 Cal.App.3d 381, 222 Cal.Rptr. 405 (1985); Commonwealth v. Wine, 694 S.W.2d 689 (Ky. 1985); Loop v. Solem, 398 N.W.2d 140 (S.D. 1986). The Supreme Court itself has suggested in dicta that in some circumstances the performance of counsel might be so deficient that prejudice may be presumed to have resulted therefrom. United States v. Cronic, 466 U.S. 648, 658-60 (1983). While this standard avoids requiring a trial court to review the record of a trial over which it presided to determine whether an assertion of error has merit, it offers no flexibility for situations in which the integrity of the appellate process is not affected by the deficient performance of appellate counsel.

The two-prong test enunciated in Strickland is designed to preserve the right to effective assistance of counsel in light of the primary basis for such right — the assurance that at all critical stages of the adjudicative process a criminal defendant represented by counsel is in fact represented by an attorney of sufficient quality to ensure that the process itself is fundamentally fair. In our view, that test is well-suited for appellate as well as trial settings. The initial inquiry must be whether the conduct of the attorney was in fact deficient in light of prevailing standards of appellate practice. If the conduct was deficient, the inquiry must then be whether, in view of all the circumstances, the deficient conduct so prejudiced the defendant as to substantially undermine the integrity of the appellate process. A requirement of prejudice accords due regard to the principles of finality and integrity of procedural requirements essential to an ordered appellate process while recognizing that in appropriate circumstances those principles must yield to ensure that parties to that process are accorded fundamental fairness. To satisfy that prejudice standard in the context of this case, wherein Valdez has received full appellate review of his convictions, Valdez must demonstrate the existence of meritorious grounds for reversal of the decision of the Court of Appeals.

In Haines v. People, 169 Colo. 136, 142, 454 P.2d 595, 598 (1969), we indicated in dicta that a defendant seeking post-conviction relief on the basis of a denial of a first right of appeal because of allegedly fraudulent conduct of counsel must establish meritorious grounds for review. In Stroup v. People, 656 P.2d 680 (Colo. 1982), we also recognized a similar test of prejudice in the context of a post-conviction proceeding in concluding that the defendant's claim for relief presented a meritorious ground and ultimately reversing the defendant's conviction. The rationales of Haines and Stroup, both of which were decided prior to the Supreme Court decisions in Strickland and Evitts, are not inconsistent with our holding today.

The record before the trial court in this Crim. P. 35(c) proceeding demonstrates that the conduct of Valdez' appellate counsel was deficient under the first prong of the Strickland test. Several alternatives other than failing to file any form of a petition by the "final extension" deadline were available. Counsel was aware that the court's order represented a third and final extension of time within which to file the petition. The attorney's performance was patently deficient, contrary to the trial court's determination.

However, Valdez did not establish that meritorious grounds exist for reversal of the decision of the Court of Appeals. Valdez' proposed petition for writ of certiorari presents six issues for review. Five of the issues assert due process challenges to various aspects of the trial proceedings: improper reliance on invalid prior convictions for impeachment and sentencing purposes; plain error by the trial court in permitting the prosecution, without objection, to inform the jury of several prior convictions of defendant; prejudicial closing arguments by the prosecutor; improper trial court ruling during jury deliberations, in the absence of defendant, permitting the jury to review tape recording evidence during deliberations; and improper instructions concerning the fact that Valdez previously had twice been convicted of habitual criminal charges. The proposed petition also asserts that Valdez was denied his right to speedy trial under the Uniform Mandatory Disposition of Detainers Act, § 16-14-102, 8 C.R.S. (1978 Repl. Vol.).

The Court of Appeals addressed all six issues in its opinion. As the trial court observed during the Crim. P. 35(c) proceeding, the only evidence presented by Valdez to establish any resultant prejudice from the deficient conduct of his appellate counsel was an affidavit executed by that counsel containing the statement that all six grounds set forth in the proposed petition were "meritorious." Any analysis of the issue of prejudice must be based on the materials presented at the Crim. P. 35(c) hearing.

Having reviewed the decision of the Court of Appeals, Valdez' proposed petition for writ of certiorari and the aforementioned affidavit, we conclude that Valdez did not satisfy his burden of establishing that the judgment of the Court of Appeals was erroneous.

Although the information in this case charged Valdez with ten prior convictions, at trial only five such convictions were relied upon by the prosecution in connection with the habitual criminal allegations. Valdez challenged only four of these convictions.

With respect to one of those four prior convictions, a 1972 conviction based upon a guilty plea, no transcript of the providency hearing was available. Statements by Valdez at the suppression hearing, which statements are referred to in the proposed petition for writ of certiorari, suggest that, contrary to the conclusion of the Court of Appeals, the trial court may have erred in holding that this 1972 conviction was constitutionally valid. However, the record before the trial court does not suggest that either it or the Court of Appeals erred in concluding that the three other relevant convictions were constitutionally valid. Thus any error in the ruling respecting the 1972 conviction would, in our view, constitute harmless error at best in the circumstances of this case.

We find no basis in the record to conclude that the Court of Appeals erred in its rulings with respect to the other five errors of law referred to in the proposed petition for writ of certiorari. We therefore conclude that Valdez failed to establish the prejudice prong of the Strickland test and, therefore, failed to establish a denial of his right to the effective assistance of appellate counsel.

In view of these circumstances, we conclude that while the conduct of Valdez' appellate counsel was deficient, Valdez failed to establish that he suffered prejudice as the result of that deficient performance.

IV

For the foregoing reasons, which differ from those underlying the trial court's conclusion, we affirm the judgment of the trial court.

JUSTICE MULLARKEY specially concurs and JUSTICE ERICKSON and JUSTICE ROVIRA join in the concurrence.