author: Opinion by JUDGE WEBB

text:
    SOUTHERN CROSS RANCHES, LLC, and Ranch Management, LLC, Plaintiffs-Appellees, v. JBC AGRICULTURAL MANAGEMENT, LLC, Defendant-Appellant, and Crystal River Meat, LLC, Third-Party Plaintiff-Appellant.
    Court of Appeals No. 18CA0161
    Colorado Court of Appeals, Division III.
    Announced April 18, 2019
    Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Jordan Factor, Rachel A. Sternlieb, Lance J. Henry, Denver, Colorado, for Plaintiffs-Appellees
    Chipman Glasser, LLC, David S. Chipman, John M. Bowlin, Denver, Colorado, for Defendant-Appellant and Third-Party Plaintiff-Appellant
   Opinion by JUDGE WEBB

¶ 1 Everyone would agree that under C.R.C.P. 56, summary judgment is proper only in the absence of any disputed issue of material fact. But if the nonmoving party fails to oppose a summary judgment motion, must the trial court examine the entire record on file for factual disputes or may the court limit its analysis to materials cited in the motion? This question is unresolved in Colorado and had divided the federal courts until a 2010 amendment to Fed. R. Civ. P. 56(c)(3), which now provides, "[t]he court need consider only the cited materials, but it may consider other materials in the record."

¶ 2 We conclude that a trial court is not required to review the entire record on file for factual disputes before ruling on a summary judgment motion. Even so, we further conclude that in this case the trial court abused its discretion by making inconsistent rulings, first denying and then granting summary judgment, without explanation. Therefore, we reverse the summary judgments and remand for further proceedings.

I. Background and Procedural History

¶ 3 JBC Agricultural Management, LLC, entered into separate contracts to buy cattle from plaintiffs Southern Cross Ranches, LLC, and Ranch Management, LLC (collectively, sellers). In turn, JBC contracted to sell the cattle to Crystal River Meat, LLC, its subsidiary (collectively, buyers). Sellers brought this action alleging that JBC had breached the contracts by failing to make any payments, starting with an initial payment due in October 2015. JBC counterclaimed alleging, as relevant here, that after the initial payment deadlines had been extended, sellers breached the contracts by failing to certify, source, feed, and care for the cattle as required by the contracts, and then by failing to provide adequate assurances that they would do so. Crystal River intervened and made similar allegations in a third-party complaint.

¶ 4 After substantial discovery had been taken, JBC moved for summary judgment on its breach of contract counterclaim. JBC supported the motion with an affidavit from its principal, Tai W. Jacober (Jacober affidavit), detailing problems with the cattle and referencing emails that Jacober averred confirmed extension of the initial payment deadline. Sellers opposed the motion with counter affidavits and an outspoken brief.

¶ 5 On June 12, 2017, in a lengthy written order, the trial court began by saying

Because JBC has not met its burden to show that there is not a genuine dispute about whether it breached the purchase agreements at issue before the [sellers'] alleged breach, I deny the motion. I also deny JBC's motion because a genuine dispute exists as to the issue of adequate assurances.

The court recognized JBC's admission that "it did not make the initial payment due under the agreements." Then the court noted JBC's assertion that "the parties modified the terms of the agreements through email and agreed to defer the initial payment due on October 15 to a later date." But "[t]he plaintiffs responded by submitting affidavits ... both asserting that neither of the plaintiffs expressly or impliedly agreed to modify JBC's obligation to make the first payment."

¶ 6 Shortly thereafter, and less than a month before the then-scheduled trial date, counsel for buyers moved to withdraw, citing nonpayment. The trial court granted the motion and reset the trial to February 5, 2018. The case remained dormant until November 3, 2017, when sellers moved for summary judgment on all claims, counterclaims, and third-party claims.

¶ 7 Because buyers were still without counsel, they could not oppose the motion. See Woodford Mfg. Co. v. A.O.Q., Inc. , 772 P.2d 652, 653 (Colo. App. 1988). The trial court signed the summary judgment orders tendered by sellers, one of which entered judgment against JBC for approximately $ 2,500,000 plus interest, costs, and attorney fees; the other dismissed the counterclaims and Crystal River's third-party complaint. The orders did not mention any aspect of the earlier summary judgment proceeding.

¶ 8 Four weeks later, new counsel entered their appearance for buyers. Counsel moved to vacate the summary judgment orders under C.R.C.P. 60(b)(5). According to the motion, the trial court had improperly entered the summary judgment orders without having considered "the entire record, and its own prior holdings, which demonstrated the existence of genuine issues of material fact." The court denied the motion, explaining only that "[b]ecause [buyers] have a remedy - an appeal - relief under C.R.C.P. 60(b)(5) is not appropriate."

¶ 9 Buyers now contend the summary judgments should be set aside on four grounds. First, because sellers submitted conclusory affidavits, they failed to meet their burden to prove the nonexistence of a genuine issue of material fact. Second, the materials supporting JBC's earlier summary judgment motion, which the trial court should have considered, established disputed issues of material fact. Third, the trial court did not cite any exception to the law of the case doctrine in disregarding its earlier summary judgment order finding disputed issues of material fact. And fourth, the court denied buyers due process by entering summary judgment against them after having explained in allowing their counsel to withdraw that they could not lose on the merits until trial.

¶ 10 Sellers agree that the first three contentions were preserved. Buyers concede that the fourth assertion was not preserved. Because we agree with buyers that the trial court's inconsistent summary judgment rulings require reversal, we do not reach the fourth contention.

II. Summary Judgment

A. Standard of Review and General Law

¶ 11 Summary judgment is reviewed de novo, applying the same standard as the trial court. City of Fort Collins v. Colo. Oil , 2016 CO 28, ¶ 9, 369 P.3d 586. But "arguments and evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal." Timm v. Reitz , 39 P.3d 1252, 1255 (Colo. App. 2001).

¶ 12 Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; Martini v. Smith , 42 P.3d 629, 632 (Colo. 2002). The opposing party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. Martini , 42 P.3d at 632.

¶ 13 Summary judgment allows the parties to "pierce the formal allegations of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail." Peterson v. Halsted , 829 P.2d 373, 375 (Colo. 1992). Yet, summary judgment "is a drastic remedy, to be granted only when there is a clear showing that the applicable standards have been met." Cary v. United of Omaha Life Ins. Co. , 68 P.3d 462, 466 (Colo. 2003).

B. The Moving Party's Summary Judgment Burden

¶ 14 Buyers' argument that sellers failed to meet their burden of showing the absence of a disputed issue of material fact falls short.

¶ 15 The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Civil Serv. Comm'n v. Pinder , 812 P.2d 645, 649 (Colo. 1991). To do so, that party must inform the court of the basis for the motion and "identify[ ] those portions of the record and of the affidavits, if any, which ... demonstrate the absence of a genuine issue of material fact." Cont'l Air Lines, Inc. v. Keenan , 731 P.2d 708, 712 (Colo. 1987). But "affidavits containing mere conclusions" are not sufficient to meet this burden. Smith v. Mehaffy , 30 P.3d 727, 730 (Colo. App. 2000) ; see Ginter v. Palmer & Co. , 196 Colo. 203, 207, 585 P.2d 583, 585 (1978) (Summary judgment was improper where the "statements in the affidavit ... are insufficient to prove or disprove the allegations in the complaint or answer, or are merely self-serving conclusions of the ultimate facts.").

¶ 16 If a nonmoving party fails to respond to a summary judgment motion, the court cannot treat the motion as confessed. C.R.C.P. 121, § 1-15(3) ("Other than motions seeking to resolve a claim or defense under C.R.C.P. 12 or 56, failure of a responding party to file a responsive brief may be considered a confession of the motion."); see Jules v. Embassy Props., Inc. , 905 P.2d 13, 15 (Colo. App. 1995) ("Although it may be risky for a party not to respond, the absence of a response does not affect the burden of the party moving for summary judgment to demonstrate that it is entitled to judgment as a matter of law."). Still, "[a]n affirmative showing of specific facts, uncontradicted by any counter affidavits, leaves a trial court with no alternative but to conclude that no genuine issue of material fact exists." Pinder , 812 P.2d at 649.

¶ 17 By any reckoning, this case turns on which party breached first. According to sellers' affidavits, JBC breached by failing to make any payments, including an initial payment due on October 15, 2015. In its answer to the complaint, JBC admits having failed to make payments; but in its counterclaim, JBC alleges that sellers did not perform under the agreements and fraudulently induced JBC to enter into the agreements.

¶ 18 Even so, "the nonmoving party may not rest on its mere allegations or denials of the opposing party's pleadings but must provide specific facts demonstrating a genuine issue for trial." Colo. Oil , ¶ 8. And by failing to respond, buyers did not provide the court with any such facts.

¶ 19 The affidavits submitted by sellers aver that "[a]t all times, [sellers] w[ere] ready, willing, and able to perform its obligations under the [agreements]"; that "JBC failed or refused to make any of the payments owing under the [agreements]"; that "JBC had no justification or excuse for these failures"; and that sellers "made no false or misleading statements ... regarding the terms of the [agreements]." These facts support sellers' claim that JBC breached the agreements by failing to make any payments. And absent any counter affidavits, the court was entitled to accept them as true. See McDaniels v. Laub , 186 P.3d 86, 87 (Colo. App. 2008) ("A motion for summary judgment supported by an affidavit, to which no counteraffidavit is filed, establishes the absence of an issue of fact, and the court is entitled to accept the affidavit as true.").

¶ 20 Be that as it may, buyers point to a discrepancy on the face of the agreement with Ranch Management. Specifically, the agreement requires JBC to pay $ 100 per head of cattle on October 15, 2015, but it was not signed until November 10, 2015. The affidavit of Ranch Management's manager does not explain this discrepancy. Although buyers did not raise this discrepancy below, we consider it because it is intrinsic to the documents that were before the trial court when it entered the summary judgments. See Roberts v. Am. Family Mut. Ins. Co. , 144 P.3d 546, 548 (Colo. 2006). Simply put, sellers failed to establish when JBC's initial payment under the Ranch Management agreement was due.

¶ 21 Despite this discrepancy, the affidavit of the Ranch Management manager avers that JBC failed to make any payments under the agreement. So, regardless of when the initial payment was due, the fact that no payments were ever made remains undisputed.

¶ 22 Buyers' argument that sellers' affidavits were mere conclusory statements of the ultimate fact - that JBC breached the contract - misses the mark. See Sweet v. TCI MS, Inc. , 47 So.3d 89, 94 (Miss. 2010) (breach of contract affidavit was conclusory where it did "not show when or how TCI attempted to obtain financing, or why TCI's available options were unsatisfactory"). Under C.R.C.P. 56(e), affidavits supporting summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

¶ 23 After all, sellers' affidavits contain information from persons who have personal knowledge of the agreements (they signed them) and of the operations of Southern Cross and Ranch Management (they manage them). See People v. Hernandez & Assocs., Inc. , 736 P.2d 1238, 1240 (Colo. App. 1986) ("The supporting affidavit must contain evidentiary material, which, if the affiant were in court and testifying on the witness stand, would be admissible as part of his testimony."). The affiants aver specific facts showing how sellers were ready to perform when JBC breached. These facts are admissible evidence and suffice to support summary judgment. See Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc. , 178 P.3d 1263, 1269 (Colo. App. 2007) ("A conclusory statement made without supporting documentation or testimony is insufficient to create an issue of material fact.").

¶ 24 In sum, we conclude that sellers met their burden of showing the absence of a factual issue on JBC's breach by nonpayment. So, we turn to the next step of summary judgment review.

C. The Nonmoving Party's Burden

¶ 25 Under C.R.C.P. 56(e), if the moving party meets its burden, the burden shifts to the nonmoving party:

When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the opposing party's pleadings, but the opposing party's response by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If there is no response, summary judgment, if appropriate, shall be entered.

(Emphasis added.) Because JBC did not respond, we ask only whether summary judgment was appropriate. Unsurprisingly, buyers say "no" because the Jacober affidavit established disputed issues of material fact and the trial court was required to review all materials then "on file." Even accepting buyers' view of this affidavit, we conclude that Rule 56 does not require a trial court to review the record beyond the materials cited in the summary judgment motion and any opposition.

¶ 26 To begin, we return to the language of the rule. C.R.C.P. 56(c) provides in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits , if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

(Emphasis added.) No Colorado court has addressed whether C.R.C.P. 56(c) requires a court to examine the record beyond the materials cited in the summary judgment motion and any opposition. Because C.R.C.P. 56(c) is "similar to a Federal Rule of Civil Procedure, we may look to federal authority for guidance in construing the Colorado rule." Benton v. Adams , 56 P.3d 81, 86 (Colo. 2002). Still, looking to federal authority only gets us so far; before the 2010 amendment, the circuits were split.

¶ 27 Supporting buyers are cases like Keiser v. Coliseum Properties, Inc. , 614 F.2d 406, 410 (5th Cir. 1980), where the court held that summary judgment can be granted only "if everything in the record pleadings, depositions, interrogatories, affidavits, etc. demonstrates that no genuine issue of material fact exists." (Emphasis added.) The court explained that " Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention[;] the court must consider both before granting a summary judgment." Id. ; see Stepanischen v. Merchs. Despatch Transp. Corp. , 722 F.2d 922, 930 (1st Cir. 1983) ("Failure of the nonmoving party to match the length and quality of the moving party's papers does not automatically relieve the court of its statutory task of determining whether 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.' " (quoting Fed. R. Civ. P. 56(c) )).

¶ 28 Supporting sellers are cases such as Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996), where the court held that "[i]t is not [the task of the court] to scour the record in search of a genuine issue of triable fact." (Citation omitted.) Instead, the court must be able to rely "on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Id. (citation omitted); see Bennett v. Dr Pepper/Seven Up, Inc. , 295 F.3d 805, 808-09 (8th Cir. 2002) ("The court was not bound, by rule or otherwise, to search the record for genuine issues of fact, when Bennett failed to bring such issues to the attention of the court in a timely-filed response to the motion for summary judgment."); United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) (When reviewing summary judgment, "[j]udges are not like pigs, hunting for truffles buried in" the record).

¶ 29 Widening our inquiry, Guarino v. Brookfield Township Trustees , 980 F.2d 399, 404 (6th Cir. 1992), expands on the reasoning behind the latter approach. The court held that "[n]othing in either the Rules or case law supports an argument that the trial court must conduct its own probing investigation of the record." Id. at 405. Then it went on to explain that requiring a trial court to do so

would leave nothing to discourage the non-moving party, especially one with a reasonably arguable case, from declining (or "forgetting" or being "too busy") to respond to a motion for summary judgment, secure in the knowledge that the [trial] court would be required to excavate all of the presented record, and find for itself any nuggets of evidence that might demonstrate genuine issues of material fact.

Id.

¶ 30 Even worse, as the Guarino court pointed out, if summary judgment were granted,

[the] passive party could still relax, assured that [it] could timely file an appeal, flyspeck the factual record ... and only then, on de novo review, identify for the court of appeals the answers, the exhibits and the other facts [they] wish[ ] to assert as supporting specific issues. Indeed, precisely because the review is de novo, with the appellate court standing in the same position as did the trial court, no principle exists under appellants' argument that could legitimately deflect a nonmoving party's insistence that the appellate panel itself assume the duty to search for genuine issues. What concept of judicial economy is served when judges (at least one, perhaps as many as four) are required to do the work of a party's attorney?

Id. at 405-06 (citation omitted).

¶ 31 And Guarino recognized that requiring a court to do the work of the nonmoving party raises another concern. It is "inappropriate for the court to abandon its position of neutrality in favor of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the motion." Id. at 406.

¶ 32 For the following three reasons, we align with those circuits holding that where no opposition is filed, a trial court need not look beyond the materials cited in the summary judgment motion.

¶ 33 First, "when interpreting two statutory sections, we must attempt to harmonize them to give effect to their purposes and, if possible, reconcile them so as to uphold the validity of both." Gonzales v. Allstate Ins. Co. , 51 P.3d 1103, 1106 (Colo. App. 2002). C.R.C.P. 56 includes two competing provisions: under C.R.C.P. 56(c), a trial court must enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact"; under C.R.C.P. 56(e), the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Were we to interpret C.R.C.P. 56(c) as requiring a trial court to examine the entire record on file before entering summary judgment, the mandate ("must") of C.R.C.P. 56(e) could be disregarded with impunity. See Pineda-Liberato v. People , 2017 CO 95, ¶ 39, 403 P.3d 160 ("We cannot ...

interpret statutory provisions so as to render any of their words or phrases meaningless or superfluous."). But reading C.R.C.P. 56 as a whole, these two provisions can be reconciled to mean "that whatever establishes a genuine issue of fact must both be in the ... court file and set forth in the response." Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026, 1029 (9th Cir. 2001).

¶ 34 Second, interpreting C.R.C.P. 56(c) as not requiring a trial court to search the entire record would be consistent with Colorado cases recognizing that the parties are responsible for alerting appellate courts to portions of the record supporting their arguments. See Mauldin v. Lowery , 127 Colo. 234, 255 P.2d 976, 977 (1953) ("Our Court will not search through briefs to discover what errors are relied on, and then search through the record for supporting evidence."); Valentine v. Mountain States Mut. Cas. Co. , 252 P.3d 1182, 1186 (Colo. App. 2011) ("When a party does not point us to where an issue was raised and resolved, he 'place[s] the burden of searching records on us' - a search we are not required to undertake." (quoting O'Quinn v. Baca , 250 P.3d 629, 631 (Colo. App. 2010) )); Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co. , 923 P.2d 328, 335 (Colo. App. 1996) ("[I]t is not the duty of the reviewing court to search the record for evidence to support bald assertions."). We discern no principled basis on which to exempt appellate courts from this burden while imposing it on trial courts.

¶ 35 Third, this interpretation comports with Colorado cases that decline to consider a new argument on appeal opposing summary judgment. See White v. Progressive Mountain Ins. Co. , 62 P.3d 1074, 1077 (Colo. App. 2002) (declining to address a new argument raised in opposition to the summary judgment). Requiring courts to scour the record for disputed facts would allow a party opposing summary judgment to remain silent below, only to point out disputed facts to an appellate court that the trial court had not found and obtain a reversal.

¶ 36 Alternatively, buyers argue that the trial court should have examined the entire record because they were unrepresented by counsel during the second summary judgment proceeding. But Colorado courts do not provide special treatment to unrepresented litigants, at least in civil cases. See Negron v. Golder , 111 P.3d 538, 541 (Colo. App. 2004) (Pro se parties are "bound by the same rules of civil procedure as attorneys licensed to practice law."); see also Jacobsen v. Filler , 790 F.2d 1362, 1364-65 (9th Cir. 1986) (where a pro se litigant failed to respond to a summary judgment motion, the court held "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record").

¶ 37 In the end, we conclude that under C.R.C.P. 56(c), a trial court is not required to review the record beyond the material cited in a summary judgment motion and any opposition. So, we necessarily further conclude that buyers cannot rely on the Jacober affidavit to show a disputed issue of material fact.

III. The Trial Court's Inconsistent Rulings

¶ 38 Buyers next contend the trial court erred by entering summary judgment in favor of sellers because the court departed from its earlier summary judgment ruling that found disputed material facts without explanation. Despite our conclusion requiring only limited record review concerning factual issues before deciding an unopposed summary judgment motion, we agree that the court's failure to reconcile its inconsistent prior ruling constituted an abuse of discretion which requires us to reverse the summary judgments.

A. Law of the Case Doctrine

¶ 39 Initially, buyers argue that the trial court erred by entering summary judgment because its prior ruling denying summary judgment constituted the law of the case. This argument misinterprets the law of the case doctrine.

¶ 40 The law of the case doctrine is a discretionary rule providing that courts should generally follow prior rulings in a case. In re Estate of Walter , 97 P.3d 188, 191 (Colo. App. 2003). The doctrine applies to decisions of law, not to findings of fact or preliminary rulings. Paratransit Risk Retention Grp. Ins. Co. v. Kamins , 160 P.3d 307, 313 (Colo. App. 2007). For these reasons, the law of the case does not apply to a denial of a summary judgment motion. See Gavend v. Malman , 946 P.2d 558, 561 (Colo. App. 1997) (The law of the case doctrine "does not preclude a second judge assigned to a case from considering a motion for summary judgment denied by a previous judge, even if based upon the same issues."). And in any event, courts have "never ... held that the 'law of the case' doctrine prevents a trial court from clarifying or even revisiting its prior rulings." In re Bass , 142 P.3d 1259, 1263 (Colo. 2006).

¶ 41 So, we turn to a trial court's discretion to depart from a prior ruling.

B. Trial Court Discretion to Revisit Prior Rulings

¶ 42 Next, buyers argue that "[t]he trial court articulated no reason for departing from its prior ruling regarding JBC's summary judgment motion. And there is no record evidence providing a good reason." At oral argument, sellers agreed that no further discovery had been taken between the two motions.

¶ 43 In general, "[e]very ruling or order made in the progress of an on-going proceeding may be rescinded or modified during that proceeding upon proper grounds." Broyles v. Fort Lyon Canal Co. , 695 P.2d 1136, 1144 (Colo. 1985) ; see C.R.C.P. 54(b) (Any order not made final "is subject to revision at any time before the entry of judgment adjudicating all the claims...."). But in this context, what is meant by "upon proper grounds"?

¶ 44 Upon proper grounds at least requires that the trial court's action be within the bounds of discretion. A trial court abuses its discretion "when it misconstrues or misapplies the law," People v. Sieck , 2014 COA 23, ¶ 5, 351 P.3d 502 ; "fail[s] to exercise discretion," People v. Darlington , 105 P.3d 230, 232 (Colo. 2005) ; or rules in a manner "manifestly against the weight of evidence," Hytken v. Wake , 68 P.3d 508, 510 (Colo. App. 2002).

¶ 45 To be sure, the trial court's two summary judgment rulings involved the same question - whether disputed facts exist as to which party breached the agreements first. In the initial ruling, the court found that "a genuine dispute exists as to whether JBC breached the purchase agreement first." But according to the second ruling, "JBC breached [the] agreement[s] when it failed to make any payment[s]...." Thus, contrary to sellers' assertion, the orders are inconsistent. This inconsistency does not vanish because buyers were movants when the motion was denied and sellers were movants when the motion was granted.

¶ 46 In most cases, we would resolve such a seeming inconsistency by reviewing the trial court's explanation of why its ruling changed. For example, after further discovery, facts may no longer be in dispute. See Peralta v. Dillard , 744 F.3d 1076, 1088 (9th Cir. 2014) ("Denial of summary judgment may result from a factual dispute at the time. That dispute may disappear as the record develops."). But the second order did not mention the first order, much less give any reason for reaching the opposite result. For that matter, it did not even expressly find the absence of disputed factual issues.

¶ 47 But even without an explanation, because trial courts are presumed to know and apply the law, appellate courts often overlook similar shortcomings. See Alamosa Indus. Stores Co. v. Hill , 74 Colo. 86, 88, 219 P. 210, 211 (1923) ("[W]e must presume the trial court will apply the appropriate rule of law."). But here, because the trial court merely signed the orders tendered by sellers along with their summary judgment motions, "we scrutinize the order more critically." Chostner v. Colo. Water Quality Control Comm'n , 2013 COA 111, ¶ 26, 327 P.3d 290 ; see Uptime Corp. v. Colo. Research Corp. , 161 Colo. 87, 93-94, 420 P.2d 232, 235 (1966) ("Where the findings of the trial court are verbatim those submitted by the successful litigant, we will ... scrutinize them more critically and give them less weight than if they were the work product of the [trial court]."). The rationale behind the mandate of critical scrutiny clouds the presumption that the trial court understood and applied the law. The picture is even murkier here because sellers' summary judgment motion did not mention either buyers' earlier summary judgment motion or the order denying it.

¶ 48 Taking a closer look at the second order, we are unable to discern that the trial court considered its prior summary judgment ruling before making the inconsistent ruling. In other words, while the court had discretion to disregard its prior ruling, the record does not show that it consciously did so. And "[a] court's failure to exercise discretion can be an abuse of discretion." People v. Hardin , 2016 COA 175, ¶ 30, 405 P.3d 379.

¶ 49 So, too, is discretion abused when a ruling is "manifestly against the weight of evidence." Hytken , 68 P.3d at 510. Comparing the prior order to the affidavits sellers submitted in support of their summary judgment motions leaves no reasoned doubt that factual issues abound. For example, those affidavits aver that "JBC failed or refused to make any of the payments owing," "JBC had no justification or excuse for these failures," and "neither of the parties amended those terms." But the initial order denying summary judgment recognized JBC's assertion that the parties had modified the agreements "to defer the initial payment due on October 15 to a later date," and recognized that "a genuine dispute exists as to whether JBC breached the agreements first." See, e.g. , Meyerowich v. Carrere Gen. Contractors, Inc. , 611 So.2d 41, 43 (Fla. Dist. Ct. App. 1992) ("The trial court made inconsistent rulings when it first determined Rose Meyerowich to be an indispensable party and then prior to the entry of the final judgment, denied her motion to intervene to cure the defect in the pleadings. Under such circumstances we must hold the trial court abused its discretion."); Haney v. Camp , 320 Ga.App. 111, 739 S.E.2d 399, 400 (2013) ("Because the trial court issued inconsistent rulings ...[,] we vacate the trial court's order and remand this case for further proceedings consistent with this opinion.").

¶ 50 For these reasons, we conclude that the trial court abused its discretion in entering the summary judgments.

IV. Conclusion

¶ 51 The summary judgments in favor of sellers are reversed and the case is remanded for further proceedings.

JUDGE ROMÁN and JUDGE FREYRE concur.

      In opposing the summary judgment motion, sellers argued: "The notion that JBC's counterclaim is fit for summary judgment is laughable"; "Other disputes barring summary judgment are of the he-said-she-said variety of which JBC knew full well before filing its motion"; and "Why JBC chose to waste Court and party resources with its summary judgment motion is unfathomable."

      Because buyers have not appealed this ruling, we express no opinion on the trial court's rationale.

      This discrepancy does not appear in the Southern Cross agreement, which was signed on August 25, 2015.

      C.R.C.P. 56(c) is identical to the prior version of Fed. R. Civ. P. 56(c).

      An earlier seventh circuit case held in "reaching its [summary judgment] determination the court has the power to penetrate the allegations of fact in the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried." Mintz v. Mathers Fund, Inc. , 463 F.2d 495, 498 (7th Cir. 1972).

      Of course, "it has ... long been within the discretion of appellate courts to address an error appearing of record." Roberts v. Am. Family Mut. Ins. Co. , 144 P.3d 546, 550 (Colo. 2006) ; see C.A.R. 1(d). However, because we reverse the summary judgments for other reasons, we decline buyers' invitation to do so.

      Contrary federal authority cited by buyers is limited to pro se cases brought by prisoners. See Hudson v. Hardy , 412 F.2d 1091, 1094 (D.C. Cir. 1968) ("[T]he requirements of the summary judgment rule may not fairly be applied 'with strict literalness' to a prisoner unrepresented by counsel and subject to the 'handicaps ... detention necessarily imposes upon a litigant.' ") (citation omitted).


source: Caselaw Access Project

author: Opinion by JUDGE J. JONES

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lupe DELGADO, Defendant-Appellant.
    Court of Appeals No. 17CA0102
    Colorado Court of Appeals, Division V.
    Announced April 18, 2019
    Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Katayoun A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE J. JONES

¶1 Defendant, Lupe Delgado, appeals the district court's order summarily denying his Crim. P. 35(c) motion based on ineffective assistance of counsel. We reverse the order in part and remand the case for a hearing on defendant's claim that his attorney incorrectly advised him about his sentencing exposure, leading him to reject a favorable plea offer. In so deciding, we conclude that the United States Supreme Court's decisions in Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), overruled the Colorado Supreme Court's decision in Carmichael v. People , 206 P.3d 800 (Colo. 2009), on two points: (1) the test for showing prejudice where an attorney incorrectly advises a defendant in plea negotiations, resulting in the defendant rejecting a plea offer; and (2) the remedies available where a defendant in these circumstances shows both ineffective assistance and prejudice. Otherwise, we affirm.

I. Background

¶2 In 2002, the People charged defendant with aggravated incest and three counts of sexual assault on a child by one in a position of trust. He hired a private attorney to represent him in that case, but that attorney withdrew several months before trial. Defendant couldn't pay another private attorney but didn't qualify for a public defender. Although he repeatedly said that he wasn't qualified to represent himself and didn't want to proceed pro se, he went to trial without an attorney. A jury convicted him of all charges.

¶3 The court appointed a public defender to represent defendant for sentencing. According to defendant's Rule 35(c) motion, the attorney told him that the prosecutor had offered a fixed, ten-year sentence to the custody of the Department of Corrections (DOC), but the offer wasn't favorable since the maximum prison term he could get was fifteen years. Relying on this advice, defendant rejected the offer. The court sentenced him to an indeterminate fifteen years to life sentence for aggravated incest and concurrent fifteen-year sentences on the other charges. He appealed.

¶4 A division of this court reversed, holding that defendant's waiver of counsel was not knowing, voluntary, and intelligent. A new trial ensued, after which a jury once again convicted defendant of all charges. The court again sentenced defendant to an aggregate term of fifteen years to life in DOC custody. He unsuccessfully appealed.

¶5 Defendant later filed a Crim. P. 35(c) motion, asserting ten claims of ineffective assistance of counsel and requesting a hearing on those claims. The district court denied the motion without a hearing.

II. Discussion

¶6 We review a summary denial of a Rule 35(c) motion de novo. People v. Gardner , 250 P.3d 1262, 1266 (Colo. App. 2010).

¶7 To prevail on a claim of ineffective assistance of counsel under Rule 35(c), a defendant must show that (1) his attorney's performance was deficient and (2) the attorney's deficient performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Dunlap v. People , 173 P.3d 1054, 1062 (Colo. 2007). An attorney's performance is deficient if it falls "below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. To prove that such deficient performance prejudiced him, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. If the defendant establishes those elements and meets all other requirements under Rule 35(c), the district court "shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant." Crim. P. 35(c)(3).

¶8 A defendant requesting postconviction relief under Rule 35(c) may be given a hearing to develop the record on his claims. See § 18-1-401, C.R.S. 2018; Ardolino v. People , 69 P.3d 73, 77 (Colo. 2003). But a court may deny the motion without a hearing if the motion, files, and record clearly establish that the defendant is not entitled to relief; if the allegations, even if true, don't provide a basis for relief; or if the claims are bare and conclusory in nature and lack supporting factual allegations. People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005).

¶9 Defendant appeals the district court's summary denial of three of his claims: (1) counsel failed to correctly advise him about the possible sentence after the first trial; (2)

counsel gave him unsound advice that he shouldn't testify in the second trial since he was guaranteed to succeed on appeal; and (3) counsel failed to investigate an aspect of the victim's past. We address each in turn.

A. Plea Offer and Sentencing Advice

¶10 Defendant alleges that, after his first trial, but before sentencing, the prosecutor extended a "plea deal" of a determinate ten-year sentence to DOC custody. His public defender, who had been appointed to represent him at sentencing, told him of the offer but advised him that it wasn't favorable because the maximum prison sentence he could receive was fifteen years. Relying on this advice, defendant declined the offer. He subsequently received an indeterminate sentence of fifteen years to life in DOC custody on the aggravated incest count. Although he successfully appealed his convictions, the district court again imposed an indeterminate sentence of fifteen years to life on the aggravated incest count after the second trial.

¶11 Defendant asserts in his Rule 35(c) motion (and reasserts on appeal) that his attorney's incorrect advice regarding his sentencing exposure constituted ineffective assistance of counsel. He claims that, had he been granted a hearing, he would have presented evidence that, but for his attorney's erroneous advice, he would have accepted the offer of a determinate ten-year sentence. We agree with defendant that the district court should hold a hearing on this claim.

¶12 In summarily denying this claim, the district court reasoned that defendant's assertions "stretch the limits of credulity and make no sense." Because the court didn't think it rational that the prosecutor would offer defendant a ten-year determinate sentence after the first trial had resulted in convictions, and didn't understand how defendant's decision to reject such an offer would impact him after the case was reversed on appeal, the court ruled that his claim lacked legal or factual merit.

¶13 But we conclude that defendant asserted facts that, if true, would provide a basis for relief under Rule 35(c). See White v. Denver Dist. Court , 766 P.2d 632, 635 (Colo. 1988).

1. Ineffective Assistance

¶14 Defendant's claim concerning the ineffective assistance prong of the Strickland test has two factual predicates: (1) the prosecutor offered a ten-year determinate sentence after the first trial but before sentencing and (2) defense counsel told defendant that the prosecutor's offer wasn't favorable because the most he faced was a fifteen-year determinate sentence. The district court summarily rejected the first factual predicate and therefore didn't address the second.

¶15 The district court's assumption that the prosecutor wouldn't have made the post-verdict, presentence offer alleged by defendant lacks support in the record. Post-guilty-verdict plea offers aren't unheard of. And the prosecutor may have had concerns that the verdicts wouldn't hold up on appeal. (As it turns out, any such concerns would have been well founded.) Moreover, it appears undisputed that the prosecutor offered an eleven-year determinate sentence after reversal of the verdicts from the first trial and before the second trial. Thus, we conclude that the district court erred in summarily rejecting this part of the factual predicate for defendant's ineffective assistance claim.

¶16 We turn, then, to the second factual predicate - counsel's incorrect advice. If defendant's attorney told defendant the longest prison sentence he could get based on the convictions from the first trial was a determinate sentence of fifteen years, that was incorrect advice: the aggravated incest conviction required an indeterminate sentence of at least four years. See §§ 18-1.3-401(1)(a)(V)(A), 18-1.3-1004(1)(a), 18-6-302, 18-6-303(3), C.R.S. 2002.

¶17 Failure to correctly advise a defendant about his sentencing exposure deprives the defendant of the opportunity to make a reasonably informed decision whether to accept or reject an offer and constitutes deficient performance under Strickland . See Carmichael , 206 P.3d at 806 (counsel's failure to tell the defendant that he faced an indeterminate sentence if he went to trial and lost was constitutionally deficient performance). We therefore conclude that the second factual predicate for defendant's claim can't be summarily rejected.

¶18 It follows from all this that defendant alleged facts that, if proved, would entitle him to relief based on ineffective assistance of counsel.

2. Prejudice

¶19 In Carmichael , the supreme court held that to show prejudice in a rejected plea offer context, the defendant must show a reasonable probability that he would have accepted the offer if his counsel had correctly advised him. 206 P.3d at 807. Defendant alleged that he would have accepted the ten-year determinate plea offer if his counsel had advised him, correctly, that he faced an indeterminate sentence. But that isn't the end of the matter. For Carmichael also holds that the remedy - indeed, the only remedy - for ineffective assistance in this context is to order a new trial, before which the parties can perhaps engage in plea negotiations. Id. at 809. The court in Carmichael expressly rejected the suggestion that "an order for a new trial must be supplemented with a requirement that the prosecution subsequently reinstate the previous plea offer." Id. That matters in this case because defendant already obtained a remand for a new trial: after he rejected the alleged plea offer, a division of this court reversed his convictions, putting him in the same position as Carmichael requires. So it would seem that under Carmichael , defendant wouldn't be entitled to any further relief - that is, the taint of any ineffective assistance has already been removed.

¶20 But that isn't the end of the matter either, for Lafler and Frye , decided after Carmichael , have much to say about both the required showing of prejudice in this context and the proper remedy if both Strickland prongs are met.

¶21 Concerning prejudice, the court in Lafler noted that "the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." 566 U.S. at 166, 132 S.Ct. 1376 ; accord id. at 168, 132 S.Ct. 1376. To show that such prejudice occurred, a defendant must demonstrate a reasonable probability not only that he would have accepted the plea offer, but also that "the prosecution would not have withdrawn it in light of intervening circumstances[ ], that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id. at 164, 132 S.Ct. 1376 ; accord Frye , 566 U.S. at 148, 132 S.Ct. 1399 ("[D]efendants ... must also show that, if the prosecution had the discretion to cancel [the offer] or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.").

¶22 The Court's more recent pronouncements on prejudice in the rejected plea context clearly don't fully align with Carmichael . The Court requires more from a defendant than does Carmichael -specifically, that the defendant show a reasonable probability that the prosecution wouldn't have withdrawn the offer and that the court would have accepted it (at least in states where prosecutors and courts retain such discretion). This matters to us in Colorado because the prosecution retains the ability to withdraw a plea offer after it has been accepted, in limited circumstances, see Keller v. People , 29 P.3d 290, 296 (Colo. 2000) (a prosecutor may withdraw an accepted offer only if the plea agreement calls for an illegal sentence or the defendant materially and substantially breaches the agreement), and the court retains discretion to refuse to accept a plea agreement, see Crim. P. 11(f)(5).

¶23 So we must conclude that Carmichael is no longer good law with respect to the required showing of prejudice in this context. See Raile v. People , 148 P.3d 126, 130 n.6 (Colo. 2006) (Colorado state courts must follow Supreme Court precedent on matters of federal constitutional law); see also People v. Geisendorfer , 991 P.2d 308, 310-11 (Colo. App. 1999) (holding that prior Colorado Supreme Court decisions had been overruled by a subsequent United States Supreme Court decision); Alcorn v. State , 121 So.3d 419, 422, 429-30 (Fla. 2013) (Florida Supreme Court acknowledged that its prior cases addressing the required showing of prejudice in this context are no longer good law after Lafler and Frye ).

¶24 This brings us to the issue of remedy. Recall that the court held in Carmichael that the only remedy in this circumstance is a new trial; requiring the prosecution to again offer the same plea agreement isn't an option. But in Lafler , the Supreme Court held that requiring the prosecution to re-offer the same deal is an option. The court addressed two situations in which a defendant rejected a plea offer based on counsel's incorrect advice or failure to communicate the offer to the defendant.

¶25 In the first situation, all the defendant lost was the benefit of a lesser sentence. If that's the case, "the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between." Lafler , 566 U.S. at 171, 132 S.Ct. 1376.

¶26 In the second situation, "resentencing alone will not be full redress for the constitutional injury," such as when "an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial" or when "a mandatory sentence confines a judge's sentencing discretion after trial." Id. In such a situation, (1) the prosecution must re-offer the plea agreement; and (2) if the defendant accepts the offer, the court "can then exercise its discretion in determining whether to vacate the convictions and resentence [the defendant] pursuant to the plea agreement, to vacate only some of the convictions and resentence [the defendant] accordingly, or to leave the convictions and sentence from trial undisturbed." Id. at 174, 132 S.Ct. 1376 ; accord id. at 171, 132 S.Ct. 1376.

¶27 By way of providing further guidance, the Court said that in determining how to exercise discretion in these situations the trial court may consider the "defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions" and "any information concerning the crime that was discovered after the plea offer was made." Id. at 171-72, 132 S.Ct. 1376. But the Court expressly left it open to trial courts to determine how best to exercise their discretion "in all the circumstances of the case." Id. at 175, 132 S.Ct. 1376.

¶28 Applying Frye and Lafler to this case, we conclude that defendant has made sufficient allegations of ineffective assistance and resulting prejudice to justify a hearing on this claim.

¶29 On remand, following the hearing, the court should answer the following questions:

• Did the prosecutor offer defendant a plea agreement before the first trial? If not, the claim fails. If so, what were the offer's terms?
• Were the plea offer's terms legal? That is, was the plea offer one the court could have accepted in all its material terms? If, for example, the agreement called for an illegal sentence, then defendant does not establish prejudice. Cf. Rose v. State , 370 Mont. 398, 304 P.3d 387, 406 (Mont. 2013) (no prejudice if the law did not allow the plea offer). This is so because a court may not impose an illegal sentence, see People v. Dist. Court , 673 P.2d 991, 995 (Colo. 1983), and if the plea agreement called for such a sentence, we must conclusively presume that the court wouldn't have accepted it.
• If the plea offer's terms were legal, is there a reasonable probability that defendant would have accepted the offer? If not, the claim fails.
• If so, however, is there a reasonable probability that the prosecution wouldn't have withdrawn it, and a reasonable probability that the court would have accepted the agreement? If the answer to either is "no," the claim fails. If the answer to both is "yes," defendant will have established prejudice, and the court should exercise its discretion to fashion an appropriate remedy.

¶30 In determining an appropriate remedy under all the relevant circumstances, the court should consider whether defendant was willing or unwilling to accept responsibility for his actions when the prosecutor first conveyed the offer. See Lafler , 566 U.S. at 171, 132 S.Ct. 1376 ; State v. Rose , 389 Mont. 374, 406 P.3d 443, 450-51 (Mont. 2017) (affirming the trial court's decision to leave the convictions and sentence undisturbed because the defendant wasn't willing to accept responsibility when the offer was originally conveyed). The court should also consider whether there was any "information concerning the crime" or defendant that came to light after the plea offer was made that bears on the appropriate remedy. See Lafler , 566 U.S. at 171-72, 132 S.Ct. 1376 ; Ebron v. Comm'r of Corr. , 307 Conn. 342, 53 A.3d 983, 993 (2012) ; People v. Hudson , 420 Ill.Dec. 52, 95 N.E.3d 1148, 1152-53 (Ill. App. Ct. 2017)

(trial court abused its discretion in declining to give the defendant the full benefit of the plea offer based on its conclusion that it wouldn't have accepted the agreement in light of the defendant's prior convictions; trial court's remedy didn't "neutralize the taint" of the constitutional violation).

¶31 In the end, provided the court reaches the question of remedy, the court should ensure that the remedy " 'neutralize[s] the taint' of [the] constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Lafler , 566 U.S. at 170, 132 S.Ct. 1376.

B. Advice Not to Testify

¶32 Next, defendant contends that the district court erred by summarily denying his claim that he received ineffective assistance of counsel when his lawyer advised him not to testify at his second trial. Specifically, he alleges that, before his second trial, his attorney told him that he would once again succeed on appeal, so he didn't need to testify in his own defense, and that he wanted to testify but relied on his attorney's advice and didn't take the stand. This prejudiced him, he argues, because he "couldn't explain the incriminating statements, confessions, or admissions" that he had made. The district court ruled that, although defendant's allegations met the performance prong of Strickland , they failed to meet the prejudice prong.

¶33 We agree with the district court and conclude that, based on these allegations, defendant wasn't entitled to a hearing on this claim. To meet the second Strickland prong, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A defendant doesn't have to set forth detailed evidentiary support for the allegations in his Rule 35(c) motion, White , 766 P.2d at 635, but if his claims are merely conclusory in nature and lack supporting factual allegations, the court may deny them without a hearing. Venzor , 121 P.3d at 262.

¶34 Such is the case here. Defendant didn't make any allegations showing a reasonable probability that the outcome would have been different if he had testified. He didn't indicate what he would have said to the jurors and how that testimony would have influenced their decision. Nor did he say that he would make any such showing if granted a hearing. So the district court didn't err by summarily denying this claim.

C. Failure to Investigate the Victim's History of Being Abused

¶35 Lastly, defendant contends that the district court should have held a hearing on his claim that his attorney provided ineffective assistance of counsel by not investigating the case thoroughly. Specifically, he alleges that, because of his attorney's failure to investigate the victim's history of abuse by others, he wasn't able to provide the jury with context for his incriminating statements to the victim and couldn't strategically attack her allegations. The district court ruled that defendant had failed to make a sufficient showing on either Strickland prong, reasoning that defense counsel's choice of how aggressively to challenge a victim's reliability is a matter of trial strategy. See People v. Bergerud , 223 P.3d 686, 693 (Colo. 2010) ("On issues of trial strategy, defense counsel is 'captain of the ship.' " (quoting Arko v. People , 183 P.3d 555, 558 (Colo. 2008) )).

¶36 We agree with the district court that defendant wasn't entitled to a hearing on this claim, albeit for slightly different reasons. Defendant made only vague assertions that "had trial counsel properly investigated the accusations [of sexual abuse by others], there is a reasonable probability that the outcome of the case would have been different." He claims that he could have used the results of the investigation to attack the legitimacy of the victim's allegations, but he doesn't explain how, even if his attorney had investigated the victim's other abusers, that information would have been admissible at trial. Because of Colorado's rape shield law, it would have been difficult, if not impossible, to introduce such evidence. See § 18-3-407, C.R.S. 2018 (at trial, subject to few exceptions, evidence of a victim's prior or subsequent sexual conduct is presumed irrelevant). His motion doesn't allege any facts indicating that some exception to the law would have applied.

¶37 Nor did defendant explain what this history involved or how it would have impacted the case, if admitted. Again, conclusory statements, without supporting factual allegations, aren't enough. Venzor , 121 P.3d at 262. The district court properly denied this claim.

III. Conclusion

¶38 We reverse that portion of the district court's order summarily denying defendant's claim that he received ineffective assistance of counsel because his attorney incorrectly advised him about his sentencing exposure, and we remand for a hearing on that claim. In all other respects, we affirm the order.

JUDGE TERRY and JUDGE GROVE concur.

      Defendant actually faced a maximum sentence of life in prison pursuant to the Colorado Sex Offender Lifetime Supervision Act of 1998. See § 18-1.3-1004, C.R.S. 2018.

      One such remedy in the plea context includes permitting a defendant who pleaded guilty after being incorrectly or inadequately advised about the consequences of accepting a plea deal to withdraw his guilty plea. See, e.g. , People v. Sifuentes , 2017 COA 48M, ¶ 46, 410 P.3d 730 (requiring the district court to allow the defendant to withdraw his guilty plea after he met both Strickland prongs and proved he received ineffective assistance of counsel during the plea process). This case involves the situation of a defendant rejecting a plea offer because of incorrect advice.

      We deem abandoned, and won't address, the seven claims that defendant raised in his Rule 35(c) motion but didn't discuss on appeal. See People v. Rodriguez , 914 P.2d 230, 249 (Colo. 1996) (the defendant's "failure to specifically reassert on this appeal all of the claims which the district court disposed of ... constitutes a conscious relinquishment of those claims"); People v. Ortega , 266 P.3d 424, 428 (Colo. App. 2011) ("We also deem abandoned any additional contentions which [the defendant] raised in his postconviction motion and which have not been pursued on appeal.").

      Defendant's opening brief references counsel's "failure to communicate the plea offer." But the claim he raises on appeal alleges that the plea offer was communicated. Counsel's alleged deficient performance was giving inaccurate advice about sentencing possibilities.

      Defendant also alleges that counsel told him he would win on appeal. That advice couldn't have been deficient because defendant wound up winning on appeal.

      In analyzing appropriate remedies, the Court was guided by the principle that the remedy should " 'neutralize the taint' of [the Sixth Amendment] violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Lafler v. Cooper , 566 U.S. 156, 170, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (quoting United States v. Morrison , 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) ).

      The Court's approval of certain remedies in the context is obviously at odds with Carmichael . It follows that Carmichael 's limitation of remedy is no longer good law.

      In Ebron v. Commissioner of Correction , 307 Conn. 342, 53 A.3d 983 (2012), the Connecticut Supreme Court identified "possible tension between Frye and Lafler " in how those cases treat the court's potential acceptance of the plea agreement under the prejudice prong of Strickland and the remedy for ineffective assistance. Id. at 990-91. On the one hand, Missouri v. Frye says that if the trial court learned information after the defendant would have accepted the plea offer that leads the postconviction court to conclude that it isn't reasonably probable the trial court would have accepted the agreement, the defendant hasn't shown prejudice. 566 U.S. 134, 148-49, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). On the other hand, Lafler says that the postconviction court may consider such information when exercising its discretion to impose a remedy. 566 U.S. at 171-72, 132 S.Ct. 1376. So, one might ask, if the postconviction court has decided that any such information would not have caused the trial court to reject the plea agreement, why should the postconviction court be allowed to consider the same information again in deciding on a remedy? See Ebron , 53 A.3d at 991-92. "[T]o avoid potentially conflicting findings at the prejudice and remedy stages" of the postconviction proceeding, the Ebron court harmonized Frye and Lafler by concluding that at the prejudice stage the defendant need only establish (in addition to the reasonable probability that he would have accepted the plea offer, and that the prosecution would not have withdrawn it) a reasonable probability that the court would have conditionally accepted the plea agreement. Id. at 992. At the remedy stage, the postconviction court may consider any information that came to light after the court would have conditionally accepted the plea agreement in determining the proper remedy. Id. at 992-93. In doing this, the Ebron court acknowledged that it was providing greater protections to defendants than contemplated by Lafler . Id. at 990 n.7. As an intermediate appellate court, we don't think it's our place to take such an approach.

      True, though defendant alleged that he would have accepted the plea offer, he didn't expressly allege that the prosecution wouldn't have withdrawn the offer or that the court would have accepted it. But those omissions are understandable in light of Carmichael . And defendant's motion plainly contemplates the consummation of a plea agreement. Given that the People don't argue that defendant's motion is deficient on either basis, we decline to hold defendant to these technical pleading requirements. Going forward, however, defendants are on notice that such allegations are part of the pleading burden in the context of a plea offer that the defendant didn't accept.

      Defendant's motion identifies other areas that his attorney failed to adequately investigate, but he mentions only the victim's "history of abuse" on appeal.


author: Opinion by JUDGE RICHMAN

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF J.V.D., Juvenile-Appellant.
    Court of Appeals No. 18CA0186
    Colorado Court of Appeals, Division VI.
    Announced May 9, 2019
    Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
    Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-Appellant
   Opinion by JUDGE RICHMAN

¶ 1 The juvenile, J.V.D., appeals his delinquency adjudication on a charge of first degree criminal trespass. Because we agree with him that his right to counsel was violated when he proceeded without representation despite no valid waiver of that right, we reverse the adjudication.

I. Background

¶ 2 According to the prosecution's evidence, J.V.D., then sixteen years old, opened the window of his neighbor's trailer, but left after the neighbor's face appeared in the window.

¶ 3 Nearly six months later, J.V.D. received a notice to appear concerning an allegation of second degree criminal trespass-a class 3 misdemeanor. He appeared at the hearing with his mother. There, the juvenile court advised them, as relevant here, (1) of the allegation of second degree trespass; (2) that if he pleaded guilty or was found guilty at trial, he could be sentenced to the Department of Youth Corrections; and (3) that he had the right to be represented by counsel and that a public defender would be appointed if he was financially qualified. J.V.D. asked the court if he could represent himself. After cautioning him that the proceedings could be complicated and that he might get bad advice from a nonlawyer, it responded that he had the right to represent himself.

¶ 4 J.V.D. proceeded to debate his Sixth Amendment right to a jury trial with the juvenile court, and it advised him repeatedly that he was "getting bad advice." The court offered to appoint a guardian ad litem (GAL), and J.V.D. declined. As the court attempted to conclude the proceedings, J.V.D. asked whether the case was a civil or criminal action. The court briefly explained that a juvenile delinquency case was neither civil nor criminal but was analogous to a criminal case, and it repeated its caution against getting legal advice from nonlawyers.

¶ 5 A week later, the prosecution filed a delinquency petition charging first degree criminal trespass, a class 5 felony, not the second degree trespass about which J.V.D. had been advised. A copy of the petition was mailed to J.V.D.'s mother, but the envelope was returned unclaimed.

¶ 6 At the plea hearing, J.V.D. stated that he did not wish to enter a plea until some of his questions were answered. He asked for information on the nature and cause of the action, whether the action was civil or criminal, and "for the rule-book-the regulations, the rules, the codes, the statutes-in order for me to intelligently defend myself."

¶ 7 The juvenile court suggested that perhaps he should have an attorney, but J.V.D. said that he was not looking for legal advice. The prosecutor asked for a GAL to be appointed. J.V.D. objected, and his mother agreed that a GAL was not necessary. The court did not appoint a GAL.

¶ 8 J.V.D. pressed the court regarding his questions. The court told him that he had been informed of the nature of the proceeding, directed him to go to the library to find the relevant information, deemed his actions to be a denial of the petition, and set the matter for trial. J.V.D. repeatedly objected to the involuntary entry of a plea. The matter was set for trial six weeks later.

¶ 9 At the outset of trial, J.V.D. "totally object[ed] to the proceeding" because he did not "know the full nature and cause," and he had been unprepared to enter a plea. The juvenile court took a few moments to explain jurisdiction and then proceeded with the trial.

¶ 10 J.V.D. acted pro se at trial, though he was also represented by his mother. He was not invited to give an opening statement, and he did not testify or call any witnesses, though he claimed that he had an alibi. His mother made some objections, asked some questions on cross-examination, and made closing arguments. Both J.V.D. and his mother made clear that they had not accessed any of the exhibits or the police report before trial.

¶ 11 The juvenile court adjudicated J.V.D. delinquent. Due in part to two prior adjudications for possession/consumption of marijuana and misdemeanor criminal mischief-each of which had resulted in a plea agreement-the court sentenced him to one to two years in the custody of the Department of Youth Corrections.

¶ 12 J.V.D. is represented by counsel on appeal. He contends that he did not effectively waive his right to counsel at trial. We agree.

II. Applicable Law

¶ 13 The Fourteenth Amendment and the Bill of Rights are not for adults alone; however, not all of their protections extend to juveniles. In re Gault , 387 U.S. 1, 13-14, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Though a juvenile facing delinquency proceedings is not afforded constitutional rights coextensive with those afforded adults in criminal proceedings, a juvenile enjoys the right to counsel because "[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." Id. at 36, 87 S.Ct. 1428 (footnote omitted); see L.O.W. v. Dist. Court , 623 P.2d 1253, 1256 (Colo. 1981) ("Rights provided to adult defendants [are not] uniformly available to juveniles because the protective purposes of juvenile proceedings preponderate over their punitive function.").

¶ 14 While the juvenile court in this case apparently recognized it, a juvenile in Colorado may not enjoy a corollary constitutional right to self-representation. Faretta v. California , 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), holds that the Sixth Amendment implies the right to self-representation, but neither the Supreme Court nor the State of Colorado has expressly extended the right of self-representation to juveniles. Indeed, section 19-2-706(2)(a), C.R.S. 2018, seems to suggest that a juvenile in Colorado does not have that right, as it authorizes the court to appoint counsel "on its own motion, [if it] determines that counsel is necessary to protect the interests of the juvenile or other parties."

¶ 15 In Colorado, the juvenile court must appoint counsel for a juvenile in most circumstances. However, the court may not appoint counsel if (1) the juvenile has retained his own counsel; or (2) the juvenile has made a knowing, intelligent, and voluntary waiver of his right to counsel. § 19-2-706(2)(a) ; see also § 19-2-508(2.5), C.R.S. 2018. While the right to counsel in a juvenile delinquency proceeding may be waived, the court is required to follow appropriate procedure to determine the validity of the waiver and to ensure that the waiver is voluntary, knowing, and intelligent. See § 19-2-706(2)(c).

¶ 16 An adult's waiver of the right to counsel may be effective if the record shows that, under the totality of the circumstances, the defendant's conduct demonstrates an unequivocal knowing, intelligent, and voluntary intent to relinquish the right to representation.

People v. Alengi , 148 P.3d 154, 159 (Colo. 2006). A waiver is knowing and intelligent only when "the record clearly shows that the defendant understands the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." People v. Arguello , 772 P.2d 87, 94 (Colo. 1989). Because there is a strong presumption against finding a waiver of a constitutional right, a court has the duty of careful inquiry into the reasons given for not having counsel and the defendant's understanding of the many risks of self-representation. Alengi , 148 P.3d at 159.

¶ 17 Because "juveniles are presumed to have less capacity than adults to understand their rights and privileges," a court considering whether a juvenile's waiver of constitutional rights is effective must also consider, while applying a totality of the circumstances test, factors such as "the juvenile's age, previous court experience, education, background, intelligence, and capacity to understand the nature of his or her rights and the consequences of waiving those rights." People v. Simpson , 51 P.3d 1022, 1025, 1027 (Colo. App. 2001) (considering juvenile rights at a providency hearing), rev'd on other grounds , 69 P.3d 79 (Colo. 2003).

¶ 18 Although no Colorado decision expressly addresses a juvenile's waiver of counsel, we conclude that the protections afforded to a juvenile must, at a minimum, be equivalent to those afforded to an adult defendant. Thus, failure to properly advise a juvenile and to inquire on the record into whether the juvenile demonstrates, under the totality of the circumstances, an unequivocal knowing, intelligent, and voluntary intent to relinquish the right to representation results in an invalid waiver of counsel. We do not require a showing of prejudice to reverse a delinquency adjudication when a juvenile's waiver of the right to counsel is ineffective. See Arguello , 772 P.2d at 97 (a deprivation of the right to counsel "undoubtedly taint[s] the whole trial").

¶ 19 The General Assembly further protected a juvenile's right to counsel through "An Act Concerning the Provision of Defense Counsel to Juvenile Offenders ...," which took effect in 2014. Ch. 247, 2014 Colo. Sess. Laws 948. Among many other statutory changes, section 19-2-706(1)(e) was added to specify that the failure of a juvenile's parent to apply for court-appointed counsel may not be construed as a waiver of the juvenile's right to counsel. Id. at 952. In section 19-2-706(2)(a)(II), the General Assembly restated the constitutional requirement that any waiver of counsel by a juvenile must be knowing, intelligent, and voluntary, and in section 19-2-706(2)(c), it supplemented the constitutional requirement by requiring a trial court to make particular findings before accepting a juvenile's waiver. Id. at 952-53; see Valley Forge Christian Coll. v. Ams. United for Separation of Church & State , 454 U.S. 464, 492, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ("[B]y legislation[,] the Congress[ ] may impart a new, and on occasion unique, meaning to [certain terms] in particular statutory or constitutional contexts.").

¶ 20 Pursuant to these sections, a court must make specific inquiries and findings on the record before accepting a juvenile's waiver of the right to counsel. The court may accept a juvenile's waiver

only after finding on the record, based on a dialogue conducted with the juvenile, that:
(I) The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
(II) The juvenile understands the sentencing options that are available to the court in the event of an adjudication or conviction of the offense with which the juvenile is charged;
(III) The juvenile has not been coerced by any other party, including but not limited to the juvenile's parent, guardian, or legal custodian, into making the waiver;
(IV) The juvenile understands that the court will provide counsel for the juvenile if the juvenile's parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
(V) The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged, which consequences may occur in addition to the actual adjudication or conviction itself.

§ 19-2-706(2)(c) (emphasis added).

¶ 21 The statute does not specify the remedy if the juvenile court fails to make specific inquiries and requisite findings on the record, but Arguello is instructive. Even for adults, Colorado "require[s] that the trial court conduct a specific inquiry on the record to ensure that the defendant is voluntarily, knowingly and intelligently waiving the right to counsel." Arguello , 772 P.2d at 95. The court further noted that failure to substantially comply with this requirement "does not automatically render the waiver invalid, but is an exception which should rarely be invoked." Id. at 96. And it specified that "before a reviewing court can find a valid implied waiver based on conduct, there must be ample, unequivocal evidence in the record that the defendant was advised properly in advance of the consequences of his actions." Id. at 97. When there is insufficient record evidence of a valid waiver of the right to counsel, the error is structural and requires reversal. Id.

III. Standards of and Basis for Review

¶ 22 The People argue that we should not review this case because J.V.D. may only challenge his waiver of the right to counsel in a postconviction proceeding. See Moore v. People , 2014 CO 8, ¶ 3, 318 P.3d 511. Alternatively, the People argue that we should review only for plain error, because J.V.D. did not argue that his waiver was ineffective or that he had been inadequately advised at trial.

¶ 23 J.V.D. argues that we should review an ineffective waiver as a denial of his constitutional right to counsel-a structural error requiring reversal. We agree with J.V.D.

¶ 24 Though Moore (waived right to testify) and People v. Walker , 2014 CO 6, 318 P.3d 479 (waived right to a jury trial), might support an argument that a juvenile may not contest the validity of his waiver of the right to counsel on direct appeal, we do not agree that those cases preclude our review. In those cases, the supreme court relegated the defendants' waiver challenges to postconviction proceedings because the challenges would likely require an inquiry "into facts that the defendant brings forward that are not contained in the direct appeal record." Moore , ¶ 17. Here, the juvenile court record fully demonstrates that J.V.D.'s waiver was ineffective because of the absence of advisement and express findings in the record. And when a challenge relies solely on the facts in the record, we can address waiver on direct appeal. See People v. Janis , 2018 CO 89, ¶ 27, 429 P.3d 1198.

¶ 25 The requirement of a contemporaneous objection and application of plain error review to a juvenile's failure to effectively waive his own right to counsel and lack of advisement is illogical. See Moore , ¶ 18. The very premise of an ineffective waiver is that the juvenile may not understand the nature of the right or the consequences of waiving it, so to require the juvenile to object on this basis at trial makes little sense. See id.

¶ 26 We agree with J.V.D. that an invalid waiver of the right to counsel constitutes structural error. See Arguello , 772 P.2d at 97 (an invalid waiver of the right to counsel amounted to a Sixth Amendment violation that tainted the whole trial, could never be considered harmless, and rendered the conviction invalid). Accordingly, we do not agree with the People that the record requires a showing of prejudice.

¶ 27 We review de novo whether a waiver of counsel was effective as a mixed question of law and fact. Alengi , 148 P.3d at 159.

IV. Discussion

¶ 28 Because juveniles "often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,"

J.D.B. v. North Carolina , 564 U.S. 261, 272, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (quoting Bellotti v. Baird , 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) ), a court has an expanded duty of careful inquiry into a juvenile's understanding of his or her right to counsel before the court can find that a waiver is voluntary, knowing, and intelligent. A juvenile must benefit not only from the constitutional standards that apply to adults-(1) presumptions against a waiver; (2) advisement regarding the many risks of self-representation; and (3) inquiry into his or her understanding of those risks and the reasons for the requested waiver-but also from the statutory requirements of section 19-2-706(2)(c)-(4) an inquiry into the juvenile's maturity; (5) an inquiry into the juvenile's understanding that counsel will be provided regardless of a parent's or guardian's ability or willingness to do so; and (6) findings on the record. Findings on the record are also strongly suggested by Arguello . See Arguello , 772 P.2d at 95-96.

¶ 29 Substantial information in the record supports a finding that J.V.D.'s waiver was voluntary. J.V.D. asked to represent himself, never asked for an attorney, declined offers of a GAL appointment, and submitted letters to the court affirming that position. But we conclude that his waiver was not knowing and intelligent. See id. at 94 ("[E]ven if the choice to proceed pro se is 'voluntary,' the waiver is not valid until the court ensures that the waiver is made knowingly and intelligently .").

¶ 30 To be sure, J.V.D. was defiant and discourteous in court. He interrupted the court, the prosecutor, and his mother. He demanded answers to legal questions that were out of place in the proceedings. He attempted to testify and to make arguments during objections and cross-examination. We further note that he had prior experience with the juvenile system, and he gave the court the impression that he was simply trying to prevent or delay the proceedings. We commend the juvenile court for its efforts in attempting to control the proceeding while respecting the rights of this obstreperous juvenile.

¶ 31 Nonetheless, we must conclude that J.V.D. was insufficiently advised. First, we see no evidence in the record that he was advised that the prosecution had entered a petition with felony charges. See id. The court did not explain the range of allowable punishments or the collateral consequences of a felony adjudication. See id. ; see also § 19-2-706(2)(c)(II). It did not explain the risks of self-representation, beyond possibly receiving "bad advice." See Alengi , 148 P.3d at 159. And J.V.D. was not advised that counsel would be appointed regardless of his mother's ability or willingness to pay. See § 19-2-706(2)(c)(IV).

¶ 32 Moreover, the court did not assess J.V.D.'s education, background, or maturity before accepting his waiver of counsel. See Simpson , 51 P.3d at 1027 ; see also § 19-2-706(1) - (2). And it did not inquire into the reasons J.V.D. did not want counsel. Alengi , 148 P.3d at 159.

¶ 33 The People concede that the juvenile court did not make the inquiries and findings required by section 19-2-706(2). Indeed, the court's inquiry as it applies to the right to counsel was limited to that recounted above, and it did not make any findings on the record as to whether the juvenile's waiver of his right to counsel was voluntary, knowing, and intelligent. It did not assess the juvenile's maturity level, his understanding of the length of the possible sentence or the collateral consequences emanating from a felony juvenile adjudication, and it did not inquire whether he had been coerced in any way, all required by statute.

¶ 34 We cannot assume that the court made implicit findings that comport with the statute and render J.V.D.'s waiver constitutionally effective.

¶ 35 Considering the totality of circumstances, we conclude that J.V.D.'s waiver was invalid. It was not knowing and intelligent because he was insufficiently advised and did not appear to understand the nature of the proceedings or the risks of self-representation. Moreover, his waiver was ineffective because the juvenile court did not inquire into his maturity or make findings on the record.

V. Conclusion

¶ 36 J.V.D.'s right to counsel for juvenile delinquency proceedings was violated when he was allowed to proceed in the absence of a knowing and intelligent waiver of that right. Accordingly, we reverse his delinquency adjudication and remand for a new trial.

JUDGE NAVARRO and JUDGE WELLING concur.

      The court later directed J.V.D. to title 19, the Juvenile Rules, and section 18-4-502, C.R.S. 2018 (the first degree criminal trespass statute).

      We have not found Colorado authority granting juveniles the right to be represented by their parents in a delinquency adjudication. Generally, only a licensed attorney may represent a client in court proceedings. See Cikraji v. Snowberger , 2015 COA 66, ¶ 14, 410 P.3d 573 (where the plaintiff was not a licensed attorney in Colorado, he could not represent his son in court proceedings without an attorney). And parents do not have a personal right to participate. See People in Interest of J.P.L , 214 P.3d 1072, 1077 (Colo. App. 2009). (Even "parents named as parties in a juvenile delinquency proceeding do not have a due process right to participate in the adjudicative proceedings.")

      A copy of the endorsement of witnesses and exhibits was mailed to J.V.D., care of his mother, but the envelope was returned as not deliverable.

      In his opening brief, J.V.D. contended that his indeterminate sentence was illegal. He withdrew that contention in his reply brief, so we do not address it.

      Other states approach this right in one of three ways. Some states recognize the juvenile's right. See L.D.S.J. v. State , 14 So. 3d 289, 290 (Fla. Dist. Ct. App. 2009) (a juvenile's knowing and intelligent waiver of counsel requires, as relevant here, a determination that no unusual circumstances preclude the juvenile's exercise of the right of self-representation). Some afford the right to a juvenile's parents. See In Interest of R.D.B. , 575 N.W.2d 420 (N.D. 1998) (a juvenile may waive the right to counsel if the juvenile is represented by his parents). And some statutorily exclude the right of self-representation from the panoply of due process rights afforded to juveniles in delinquency proceedings. See N.C. Gen. Stat. § 7B-2405(6) (2018) (The court shall protect "[a]ll rights afforded adult offenders except the right to bail, the right of self-representation, and the right of trial by jury.").

      We note that the Juvenile Delinquency Benchbook, although last updated prior to the addition of section 19-2-706(2)(c), C.R.S. 2018, contains questions that the juvenile court should ask before accepting waivers from a juvenile. William Alexander, Juvenile Delinquency Benchbook (updated Sept. 2013), https://perma.cc/CKF8-558X.