COLORADO COURT OF APPEALS

Court of Appeals No. 15CA0128 Jefferson County District Court No. 13CR1081 Honorable Christie B. Phillips, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Breck Torrell Higgins,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VI Opinion by JUDGE FURMAN Welling and Davidson*, JJ., concur

Announced May 4, 2017

Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jessica A. Scotella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016. ¶1 Defendant, Breck Torrell Higgins, filed a Crim. P. 35(c) motion

and requested counsel to represent him on his motion. The district

court sent a copy of Higgins’s motion to the prosecution and, after

receiving the prosecution’s response, denied the motion without a

hearing and without hearing from the public defender’s office. But,

the court was required under Crim. P. 35(c)(3)(V) to allow the public

defender’s office to respond. Because the court departed from Crim.

P. 35(c)(3)(V)’s procedure, we reverse and remand its order without

considering the merits of Higgins’s postconviction claims.

I. Higgins’s Crim. P. 35(c) Motion

¶2 Higgins pleaded guilty to felony menacing, and the court

sentenced him to serve eighteen months in prison. During the next

two months, he filed three unsuccessful motions for a reduced

sentence, one through his lawyer and two pro se. A few months

later, he filed the Crim. P. 35(c) motion, which included several

claims of ineffective assistance of counsel.

II. Discussion

¶3 Higgins contends that the district court erred by departing

from the procedure outlined by Crim. P. 35(c)(3)(IV) and (V) and that

the court’s error requires reversal. We agree.

1 A. Crim. P. 35(c)(3)(IV) and (V)

¶4 Crim. P. 35(c)(3)(IV) permits a district court to deny a

defendant’s Crim. P. 35(c) motion without a hearing if the motion,

the files, and the record clearly show that the defendant is not

entitled to relief. See Ardolino v. People,

(Colo.

2003).

¶5 If the court does not summarily deny the motion under Crim.

P. 35(c)(3)(IV), however, subsection (c)(3)(V) requires the court to

take specific actions. The “court shall cause a complete copy of

[the] motion to be served on the prosecuting attorney,” and if the

defendant has requested counsel in the motion, “the court shall

cause a complete copy of [the] motion to be served on the Public

Defender.” Crim. P. 35(c)(3)(V). The public defender’s office then

has forty-nine days to inform the court whether it intends to

represent the defendant, “identify whether any conflict exists,

request any additional time needed to investigate, and add any

claims the Public Defender finds to have arguable merit.”

The

court must then order the prosecution to respond and the

defendant to reply.

Once the parties have filed their pleadings,

“the court shall grant a prompt hearing on the motion unless, based

2 on the pleadings, the court finds that it is appropriate to enter a

ruling containing written findings of fact and conclusions of law.”

B. Preservation and Standard of Review

¶6 The parties dispute whether Higgins preserved his argument

that the district court erred by sending his motion to the prosecutor

without also sending it to the public defender’s office. Higgins

contends that he preserved this issue by requesting counsel in his

motion; the People respond that he also needed to object once the

court sent the motion to the prosecution but not the public

defender’s office.

¶7 We agree with Higgins.

¶8 A defendant preserves an issue for appeal if he or she alerts

the trial court to the particular issue. People v. Cordova,

(Colo. App. 2011).

¶9 Under Crim. P. 35(c)(3)(V), if the court does not summarily

deny the defendant’s motion, “the court shall cause a complete

copy” of the motion to be served on the Public Defender if “the

defendant has requested counsel be appointed in the motion.” By

requesting counsel in his motion, then, Higgins sufficiently alerted

3 the court to the issue he pursues on appeal. See Crim. P.

35(c)(3)(V).

¶ 10 Even so, the People rely on People v. Davis,

, in which the division noted that the defendant “requested

appointment of an attorney and objected to the court’s failure to

allow the Public Defender to respond.” Although the defendant in

Davis happened to have requested counsel and also objected to the

court’s action, we do not read Davis to hold that a defendant must

take both of those steps to preserve a claim that the district court

erred by not sending the defendant’s motion to the public defender’s

office under Crim. P. 35(c)(3)(V). And, given Crim. P. 35(c)(3)(V)’s

clear, mandatory language, we hold that a defendant need only

request appointed counsel in a Crim. P. 35(c) motion to preserve

such a claim.

¶ 11 We review de novo a district court’s decision to deny a Crim. P.

35(c) motion without a hearing. People v. Lopez,

. We also review de novo interpretations of the rules of criminal

procedure. People v. Corson,

.

4 C. Analysis

¶ 12 In Davis, the defendant filed a Crim. P. 35(c) motion in which

he requested counsel. Davis, ¶ 4. The district court ordered the

prosecution to respond but did not serve a copy of the defendant’s

motion on the public defender’s office. Id. at ¶ 5. The prosecution

filed a response with an affidavit attached. Id. at ¶ 10. After

reviewing the response, the district court denied the defendant’s

motion without permitting the public defender’s office to respond.

Id. at ¶ 5. The Davis division reversed, agreeing “that the district

court erred by referring [the defendant’s] motion to the prosecution

without also sending a copy to the Public Defender in accordance

with the procedures outlined in Crim. P. 35(c)(3)(IV) and (V).” Id. at

¶ 7.

¶ 13 Just as in Davis, the district court in this case did not

summarily deny the postconviction motion. Instead, it sent a copy

of the motion to the prosecution, but not to the public defender’s

office, and denied the postconviction motion after reviewing the

prosecution’s response. We conclude that the district court erred

by departing from the mandatory procedure outlined by Crim. P.

35(c)(3)(IV) and (V). See id.

5 ¶ 14 The People contend, however, that Crim. P. 35(c)(3)(V) did not

require the district court to send a copy of Higgins’s motion to the

public defender’s office. The People again rely on Davis, noting that

the district court in that case considered not only the prosecution’s

response but also the attached affidavit. Id. at ¶ 10. Considering

the affidavit, the People contend, triggered the district court’s duty

in Davis to serve a copy of the defendant’s motion on the public

defender’s office. And, because the district court here did not

consider evidence (such as an affidavit) outside of the record, the

People maintain that the district court had no duty to serve

Higgins’s motion on the public defender’s office. The People’s

position finds support in Davis: “the requirement of service on the

Public Defender is triggered when the court finds that it is

necessary to consider matters outside of the motion, files, and

record of the case (here, an affidavit that was provided by the

government and was not part of the underlying proceedings).” Id. at

¶ 12.

¶ 15 But, Crim. P. 35(c)(3)(V)’s plain language ultimately forecloses

the People’s argument. Under the rule, the event that triggers a

6 district court’s duty to comply with Crim. P. 35(c)(3)(V)’s procedure

is its decision not to summarily deny the defendant’s motion.

¶ 16 We next consider whether the district court’s error was

harmless. See id. at ¶ 13. An error is not harmless, as relevant

here, if it affected the fairness of the district court proceedings. See

Hagos v. People,

.

¶ 17 The People contend that the district court’s error was harmless

because the merits of Higgins’s claims did not entitle him to relief

and also because his motion was successive. We do not consider

the merits of Higgins’s claims to determine whether the court’s error

was harmless. This is so because harmlessness can never be

measured by the face of the motion because the Public Defender

can add claims to the defendant’s motion. See Crim. P. 35(c)(3)(V)

(“In such response, the Public Defender shall . . . add any claims

the Public Defender finds to have arguable merit.”). That is, the

district court’s decision not to send Higgins’s postconviction motion

to the public defender’s office deprived Higgins of the opportunity to

have the public defender’s office respond or add any claims with

arguable merit. See Davis, ¶ 14. “Because the procedures

mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit,

7 we must conclude that the court’s failure to comply may have

prejudiced” Higgins.

¶ 18 And, we disagree with the People’s claim that Higgins’s Crim.

P. 35(c) motion was successive. A district court must deny any

Crim. P. 35(c) claim that was raised and resolved, or that could

have been raised, in a prior appeal or postconviction proceeding.

Crim. P. 35(c)(3)(VI), (VII). The People contend that Higgins raised,

or could have raised, his current ineffective assistance claims in his

third Crim. P. 35(b) motion. The People correctly point out that

Higgins’s third Rule 35(b) motion cited his lawyer’s alleged

ineffective assistance as grounds to reduce his sentence. Indeed,

the district court even “determine[d] the motion [was] properly

within” Crim. P. 35(c). We do not adopt that determination,

however. Although the motion alleged that Higgins received

ineffective assistance, the only remedy that it sought was a reduced

sentence — which Crim. P. 35(b), not (c), authorizes. So, Higgins’s

current Crim. P. 35(c) claims are not successive.

¶ 19 We recognize that the parties dispute the merits of Higgins’s

claims and whether the allegations in his motion warranted a

hearing. We therefore emphasize that our discussion reaches only

8 the district court’s procedure; we express no opinion about the

merits of Higgins’s claims, about whether his claims require a

hearing, or about whether Higgins will be entitled to postconviction

counsel. See Davis, ¶ 15; see also Silva v. People,

(Colo. 2007) (concluding that “the court and the state public

defender’s office must find that a defendant’s Crim. P. 35(c) motion

has arguable merit before the statutory right to post-conviction

counsel is triggered”).

III. Conclusion

¶ 20 The order denying Higgins’s motion is reversed, and the case is

remanded with directions for the district court to proceed according

to Crim. P. 35(c)(3)(V).

JUDGE WELLING and JUDGE DAVIDSON concur.

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