Peo v. Hill
Peo v. Hill
Peo v. Hill
Opinion
19CA0126 Peo v Hill 10-21-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0126
Adams County District Court No. 10CR3476
Honorable Mark D. Warner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Lee Hill, Jr.,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE RICHMAN
Harris and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 21, 2021
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
1
¶ 1
Defendant, Steven Lee Hill, Jr., appeals the district court’s
order denying his Crim. P. 35(c) motion for postconviction relief.
We affirm.
I. Background
¶ 2
Hill was convicted of sexual assault following a jury trial. His
conviction was affirmed on direct appeal. People v. Hill, (Colo. App.
No. 12CA1338, Nov. 6, 2014) (not published pursuant to C.A.R.
35(f)). Proceeding pro se, he filed a timely Crim. P. 35(c) motion for
postconviction relief, which was supplemented after the court
appointed counsel. The supplemented motion alleged that Hill had
received ineffective assistance of counsel both at trial and on
appeal. As is relevant to this appeal, Hill asserted that his trial
counsel gave him bad advice about exercising his right to testify at
trial and his appellate counsel failed to raise an important
argument on appeal.
¶ 3
The postconviction court summarily denied all of Hill’s claims
except for the one concerning his trial counsel’s advice about
testifying. The court then held a hearing on that claim, during
which Hill and his trial counsel testified. Ultimately, the court
denied that claim too, concluding that Hill was not credible and had
2
failed to establish that his trial counsel’s advice was “outside the
range of professionally competent assistance.”
¶ 4
On appeal, Hill asserts that he carried his burden of proof at
the hearing regarding his trial counsel’s alleged ineffectiveness and
was entitled to a hearing regarding his appellate counsel’s alleged
ineffectiveness.1 We address the issues in turn.
II. Ineffective Assistance of Trial Counsel
¶ 5
Hill first contends that he sufficiently demonstrated to the
postconviction court that his trial counsel’s advice about testifying
constituted ineffective assistance of counsel, and, therefore, the
court erred when it denied his claim and his request for a new trial.
We disagree.
A. Standard of Review
¶ 6
Ineffective assistance of counsel claims present mixed
questions of law and fact. Dunlap v. People, 173 P.3d 1054, 1063
(Colo. 2007). We defer to the postconviction court’s factual findings
1 Hill’s motion raised other claims that are not reasserted on appeal;
we deem those claims abandoned. See People v. Rodriguez, 914
P.2d 230, 249 (Colo. 1996) (a defendant’s failure to specifically
reassert on appeal claims that the postconviction court denied
constitutes a “conscious relinquishment” of those claims).
3
if they are supported by the record but review its legal conclusions
de novo. Id.
B. Applicable Law
¶ 7
A defendant in a criminal case has a constitutional right to the
effective assistance of counsel. People v. Corson, 2016 CO 33, ¶ 32.
To prevail on an ineffective assistance of counsel claim, a defendant
must demonstrate that (1) his counsel’s performance was deficient
and (2) he was prejudiced as a result. Strickland v. Washington,
466 U.S. 668, 687 (1984).
¶ 8
To establish deficient performance, a defendant needs to show
that his counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 687-88. In so doing, he must overcome a
“strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Id. at 689.
¶ 9
To establish prejudice, a defendant needs to show that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id.
at 694. “Reasonable probability” means “a probability sufficient to
undermine confidence in the outcome.” Id.
4
¶ 10
If a court concludes that a defendant has failed to prove either
of the test’s prongs, it need not address the other. People v.
Washington, 2014 COA 41, ¶ 20. Further, as the trier of fact, the
postconviction court is responsible for determining the weight and
credibility to be given to witness testimony, People v. Curren, 228
P.3d 253, 258 (Colo. App. 2009), which are determinations we may
not disregard on appeal. People v. Hardin, 2016 COA 175, ¶ 43.
¶ 11
In addition to the right to counsel, a defendant in a criminal
case has a constitutional right to testify in his own defense. People
v. Curtis, 681 P.2d 504, 509-10 (Colo. 1984). One of defense
counsel’s duties is to adequately advise her clients about the right.
See People v. Naranjo, 840 P.2d 319, 323 (Colo. 1992) (explaining
that a defendant is entitled to the “full and careful advice of his
lawyer” before deciding whether to testify at trial (quoting Martinez
v. People, 173 Colo. 515, 518, 480 P.2d 843, 844 (1971))). And like
the right to counsel, the right to testify has been recognized as a
fundamental right deserving of certain procedural safeguards.
People v. Blehm, 983 P.2d 779, 786 (Colo. 1999).
¶ 12
Accordingly, a defendant may waive his right to testify, but
only if the waiver is knowing, voluntary, and intelligent. Moore v.
5
People, 2014 CO 8, ¶ 10. To ensure a valid waiver, the trial court
must provide a multi-part “Curtis advisement,” advising the
defendant that, among other things, he has a right to testify and if
he wants to testify then no one can prevent him from doing so. Id.
¶ 13
One of the purposes of a Curtis advisement is to preclude
postconviction disputes between defendant and counsel, People v.
Chavez, 853 P.2d 1149, 1153 (Colo. 1993), but disputes still arise.
This is true even when the advisement was adequate. See Moore,
¶ 22 (a complete Curtis advisement is not dispositive of whether a
defendant validly waived his right to testify).
¶ 14
At the same time, because a complete Curtis advisement
strongly suggests that a defendant’s wavier of his right to testify
was valid, a defendant who wants to challenge his waiver in the face
of an adequate advisement may introduce new evidence showing
that his waiver was not knowing, voluntary, and intelligent. Id. at
¶ 26. For example, he may put on evidence of “what [he] did or did
not understand in waiving the right, what the attorney did or did
not say; and any other pertinent circumstances relating to [his]
condition at the time of the waiver.” Id.
6
¶ 15
Advising a defendant not to testify, by itself, does not
constitute ineffective assistance of counsel. People v. Layton, 200
Colo. 59, 61-62, 612 P.2d 83, 85 (1980).
C. Analysis
¶ 16
In his motion, Hill alleged that his trial counsel was ineffective
because counsel inadequately advised him about his right to testify
at trial and then pressured him not to testify, rendering his
eventual waiver of the right both “unknowing” and “involuntary.”
(This despite the record reflecting that he received a complete Curtis
advisement from the trial court.)
¶ 17
During the hearing, Hill explained that, looking back, he
wanted to testify at trial that his sexual encounter with the victim
was consensual because “if the jury would have heard my side of
the story, I think they would have seen a bigger picture and seen
that — maybe some truth in what I was saying.” As for why he did
not testify, Hill said that his counsel, in a “very calm” manner, told
him that he should not testify “because I think you’re going to lose
the case,” and this “scared” him. On cross-examination, however,
Hill admitted he both received and understood the trial court’s
7
advisement that he (1) had the right to testify if he wanted to and
(2) could exercise the right even if his attorney did not want him to.
¶ 18
For her part, Hill’s trial counsel said that in preparation for
Hill’s trial, she discussed with him that he would have to make a
decision about whether or not to testify. Although counsel did not
recall their exact discussion, she testified that her practice at the
time was to “talk to my clients about the fact that they are the only
ones who get to make the decision to testify or not,” and “[i]t’s my
job as an attorney to be a good guide; to advise a client as to
whether they should testify or not and what the implications are.”
¶ 19
Counsel further explained that she advised Hill not to testify
partly because Hill “was a little bit foggy about what happened that
night” and had “said that he was under the influence so he couldn’t
remember everything.” This, counsel worried, would allow the
prosecution to “make hay” of the gaps in his story. Additionally,
she thought that the narrative Hill told her about the encounter
being consensual was “generally consistent” with statements he had
made to police after the incident that were going to be admitted at
trial. Last, she explained that Hill was set to go to trial in a
different case after the trial in this case, and that this case involved
8
CRE 404(b) evidence, so Hill “would be opening himself up to
statements that he would be making not only in this case but that
could potentially be used against him in the [other] case.”
¶ 20
In a written order, the postconviction court denied Hill’s
ineffective assistance of counsel claim, finding that “based upon
credibility factors,” it was “more likely [than not]” that trial counsel
adequately advised Hill about his right to testify, and concluding
that trial counsel’s advice not to testify was “objectively reasonable”
because
Hill’s statements to police, which were played for the
jury, articulated his story of a consensual encounter;
a prior felony conviction of Hill’s would have been
revealed to the jury had he testified;
there was an open and unresolved case in another
jurisdiction involving similar charges and similar factual
allegations, and deciding to testify would have subjected
Hill to cross-examination in that case; and
Hill’s recollection of counsel’s performance was not clear.
¶ 21
On appeal, Hill contends that the postconviction court erred
because his trial counsel’s advice about testifying was not
9
“objectively reasonable,” as counsel “had no strategic reason not to
call him,” his testimony “could not have hurt his case,” and
“[w]ithout his testimony, the jury had no choice but to convict him.”
¶ 22
But these arguments are unpersuasive because we agree with
the postconviction court that Hill’s trial counsel expressed
legitimate reasons as to why she advised Hill not to testify, and the
postconviction court credited her, and not Hill’s, testimony.
¶ 23
What is more, Hill admitted that when he waived his right to
testify at trial, he understood that he had the right and could testify
even if his counsel did not want him to. Accordingly, accepting that
Hill was “scared” by the prospect of losing his case, and even
assuming that his trial counsel told him that he “would” lose if he
testified, the evidence demonstrates that Hill’s waiver was knowing,
voluntary, and intelligent, and was not the product of coercion or of
ineffective assistance of counsel.
III. Ineffective Assistance of Appellate Counsel
¶ 24
Hill next contends that the postconviction court erred when it
denied him a hearing regarding his appellate counsel’s alleged
ineffectiveness. Again, we disagree.
10
A. Standard of Review
¶ 25
A district court’s denial of a Crim. P. 35(c) motion without a
hearing is reviewed de novo. People v. Higgins, 2017 COA 57, ¶ 11.
B. Applicable Law
¶ 26
Ordinarily, a defendant is entitled to an evidentiary hearing on
the claims contained in his Crim. P. 35(c) motion. See People v.
Simpson, 69 P.3d 79, 81 (Colo. 2003) (“To warrant a hearing, a
defendant need only assert facts that, if true, would provide a basis
for relief.”). Still, a court may deny a Crim. P. 35(c) motion without
a hearing if “the motion, the files, and the record clearly establish
that the allegations in the motion lack merit and do not entitle the
defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17; see also
Crim. P. 35(c)(3)(IV). Bare and conclusory allegations are, likewise,
insufficient. People v. Phipps, 2016 COA 190M, ¶ 18.
¶ 27
The test for determining whether a defendant has received
ineffective assistance of appellate counsel is generally the same as
the test for whether he has received ineffective assistance of trial
counsel. People v. Ray, 2015 COA 92, ¶ 13. Application of the test
will vary, however, depending on the type of claim presented. Id.
11
¶ 28
As is relevant to this case, when the claim is that counsel’s
performance was deficient because she overlooked a meritorious
argument on appeal, the defendant must show that the ignored
argument was “clearly stronger” than those presented. People v.
Trujillo, 169 P.3d 235, 238 (Colo. App. 2007) (quoting Ellis v.
Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002)). It is not enough to
Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (rejecting a claim that
appellate counsel was ineffective for failing to raise all available
issues). And to demonstrate prejudice, the defendant must show a
reasonable probability that, but for counsel’s errors, he would have
prevailed on appeal. People v. Long, 126 P.3d 284, 286 (Colo. App.
2005).
C. Analysis
¶ 29
In his motion, Hill alleged that his appellate counsel was
ineffective because although counsel raised two issues on appeal —
that Hill’s statements to the police should have been suppressed
and that the CRE 404(b) evidence should not have been admitted —
counsel failed to raise an even stronger one: prosecutorial
misconduct.
12
¶ 30
Specifically, Hill asserted that his counsel should have argued
that a prosecutor made “improper and prejudicial” statements
during closing arguments when the prosecutor told the jury: “I
suspect that in the next few minutes you will hear discussion
alluding to credibility issues of [the victim], or allude that this was
maybe a chance encounter, one-night stand, or act of prostitution.
I am asking you don’t allow the defendant to further denigrate,
humiliate [the victim].”2
¶ 31
According to Hill’s motion, the statements were improper
because it is “reasonably likely” that they “inflame[d] the passions of
the jury to reach a decision based upon emotions and bias, instead
of the evidence in the record.” The motion also argued that had the
issue been raised on direct appeal, there is a “reasonable
probability” that a division of this court would have determined that
the statements were improper and, therefore, “the outcome of the
proceedings would have been different.”
2 Hill objected to the statements at trial, but the court overruled his
objection.
13
¶ 32
In its order summarily denying Hill’s claim, the postconviction
court explained that, in its opinion, the statements, while arguably
improper, were at most harmless, and as such, the court could not
conclude that Hill’s appellate counsel ignored an issue that was
“clearly stronger” than the two that were presented.
¶ 33
On appeal, Hill contends that the postconviction court erred
because the allegations in his motion were facially sufficient to
warrant a hearing on his claim. We disagree because although the
motion explained why Hill thinks his prosecutorial misconduct
argument is a good one, neither it nor the reply filed in support
thereof alleged how the argument was clearly stronger than the
arguments that appellate counsel did make. In fact, there is no
discussion whatsoever comparing the relative strength of the
prosecutorial misconduct argument against either the suppression
argument or the Rule 404(b) argument. And the bare allegation
that Hill’s appellate counsel failed to raise a potentially meritorious
argument “does not overcome the presumption that appellate
counsel’s choice [to assert other arguments] was the result of a
strategic election.” Trujillo, 169 P.3d at 239.
14
¶ 34
Thus, we agree with the postconviction court’s decision to
deny Hill’s claim without a hearing. See Taylor v. Taylor, 2016 COA
100, ¶ 31 (we may affirm on any ground supported by the record).
IV. Conclusion
¶ 35
The order is affirmed.
JUDGE HARRIS and JUDGE GOMEZ concur.
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