Peo v. Carpenter
Peo v. Carpenter
Peo v. Carpenter
Opinion
20CA1051 Peo v Carpenter 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1051
Pueblo County District Court Nos. 12CR1486 & 13CR71
Honorable Larry C. Schwartz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricky Carl Carpenter,
Defendant-Appellant.
ORDER AFFIRMED
Division A
Opinion by CHIEF JUDGE ROMÁN
Vogt* and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Rachel Z. Geiman, Alternate Defense Counsel, 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. 2021.
1
¶ 1 Defendant, Ricky Carl Carpenter, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion. We affirm.
I. Background
¶ 2 This appeal involves two criminal cases. In the first case,
which was based on Carpenter kidnapping his ex-girlfriend, the
prosecution charged him with felony counts of second degree
kidnapping, second degree assault, menacing, and possession of a
weapon by a previous offender. In the second case, which was
based on Carpenter breaking into his ex-girlfriend’s home, the
prosecution charged him with felony counts of first degree criminal
trespass and violation of bail bond conditions.
¶ 3 The same district judge presided over both cases. The day
before trial in the first case, in early July of 2013, Carpenter’s trial
counsel filed a motion to disqualify the judge. The motion was
based on events that had occurred at pretrial hearings in May of
that year. According to the motion, the pretrial hearings showed
that the judge was biased in favor of the prosecution. The judge
denied the motion, concluding that recusal was not warranted.
¶ 4 Both cases proceeded to trial, and the juries found Carpenter
guilty on all the charged felonies: the class 3 felony count of second
2
degree kidnapping, the class 4 felony count of second degree
assault; the class 5 felony counts of menacing and first degree
criminal trespass; and the class 6 felony counts of possession of a
weapon by a previous offender and violation of bail bond conditions.
The trial court imposed consecutive sentences totaling sixty-six
years in the custody of the Department of Corrections.
¶ 5 On direct appeal, Carpenter asserted that he was denied his
right to an impartial judge in the district court. A division of this
court affirmed on the ground that the motions for disqualification
were not timely filed because the events giving rise to the motion
occurred in May 2013, but the motion was not filed until early July
2013. See People v. Carpenter, slip op. at 3-4 (Colo. App. No.
13CA1878, Dec. 29, 2016) (not published pursuant to C.A.R. 35(e))
(Carpenter I) (concluding that a timely motion for disqualification
must be filed either within fourteen days after a case has been
assigned to a court, citing Crim. P. 21(b), or as soon as possible
after the facts forming the basis for the motion have been
discovered, citing People v. Botham, 629 P.2d 589, 595 (Colo. 1981),
overruled on other grounds by People v. Garner, 806 P.2d 366, 370
(Colo. 1991)); People v. Carpenter, slip op. at 4 (Colo. App. No.
3
13CA1879, Dec. 29, 2016) (not published pursuant to C.A.R. 35(e))
(Carpenter II) (same).
¶ 6 Carpenter later filed a pro se Crim. P. 35(c) motion for
postconviction relief, alleging that he had received ineffective
assistance from his trial counsel. Two claims in that motion are at
issue here. First, Carpenter claimed that his trial counsel was
ineffective in waiting until the day before trial to file the motion for
disqualification. Second, he claimed that his trial counsel was
ineffective in not conveying a plea offer to him.
¶ 7 A different district judge presided over the postconviction
proceedings. The court appointed counsel for Carpenter, and after
the prosecution filed a response to the motion, the court held an
evidentiary hearing (the Rule 35(c) hearing). Carpenter and his trial
counsel both testified at the hearing.
¶ 8 Following the hearing, the postconviction court issued a
written order denying Carpenter’s Crim. P. 35(c) motion. As to both
claims at issue here, the court credited trial counsel’s testimony at
the Rule 35(c) hearing and ruled that Carpenter had failed to prove
that counsel’s performance was constitutionally deficient. We
4
discuss the postconviction court’s findings and the evidence in
sections III and IV below.
II. Applicable Law and Standards of Review
¶ 9 In a Crim. P. 35(c) proceeding, we presume the validity of the
convictions, and the defendant bears the burden of proving that he
is entitled to postconviction relief. Dunlap v. People, 173 P.3d 1054,
1061 (Colo. 2007).
¶ 10 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was
constitutionally deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S.668,
687 (1984). For the performance prong, the defendant must show
by a preponderance of the evidence that counsel’s representation
fell below an objective standard of reasonableness. Id. at 688;
Dunlap, 173 P.3d at 1061. For the prejudice prong, the defendant
must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694.
¶ 11 In reviewing the denial of a Crim. P. 35(c) motion following an
evidentiary hearing, we defer to the postconviction court’s factual
5
findings if they are supported by the record. Dunlap, 173 P.3d at
1063. We also defer to the postconviction court’s determinations
regarding the weight and credibility to give to witness testimony at
the hearing. Id. at 1061-62. We review the postconviction court’s
legal conclusions de novo. Id. at 1063.
III. Ineffective Assistance Claim Regarding
Motion for Disqualification
¶ 12 In terms of Carpenter’s claim that his trial counsel was
ineffective in waiting until the day before trial to file the motion for
disqualification, we recognize that Carpenter I and Carpenter II
affirmed the judgment on direct appeal on the ground that the
motion for disqualification was untimely filed. Carpenter relies
heavily on that holding in arguing that trial counsel’s performance
was objectively unreasonable.
¶ 13 That reliance highlights a key principle in the law governing
ineffective assistance of counsel claims. As the Supreme Court in
Strickland explained:
It is all too tempting for a defendant to
second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude
that a particular act or omission of counsel
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was unreasonable. A fair assessment of
attorney performance requires that every effort
be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the
time.
466 U.S. at 689 (emphasis added) (citation omitted); see also United
States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (A court
reviewing an ineffective assistance claim may not play “Monday [or
Tuesday] morning quarterback” in evaluating counsel’s
performance. (quoting United States v. Malone, 484 F.3d 916, 920 &
n.1 (7th Cir. 2007))).
¶ 14 That brings us to the question of whether Carpenter’s trial
counsel had a strategic reason for filing the motion for
disqualification when he did. Trial counsel testified at the Rule
35(c) hearing that he had prior experience practicing in front of this
district judge. He also testified regarding his decision-making
concerning the motion for disqualification.
¶ 15 According to his testimony, as trial approached, the defense
had information that the victim might not appear for trial, which
counsel believed might lead to a favorable plea offer from the
prosecution, or even dismissal of the charges against Carpenter.
7
Trial counsel also testified that he was concerned that if he filed the
motion for disqualification, and if the district judge learned that the
prosecution was having trouble getting the victim to appear for trial,
the judge would grant the motion for disqualification, thereby
delaying the case to give the prosecution more time to secure the
victim’s attendance at trial. However, once trial counsel realized
that the victim was going to appear at trial, he filed the motion for
disqualification to make a record of the alleged issue of judicial
bias.
¶ 16 In the postconviction court’s written order denying Carpenter’s
Crim. P. 35(c) motion, the court (1) credited trial counsel’s
testimony at the Rule 35(c) hearing, (2) discussed trial counsel’s
rationale for the timing of the filing of the motion for
disqualification, (3) found that counsel had a strategic reason for
filing the motion when he did, and (4) concluded that Carpenter had
failed to prove deficient performance as to this claim.
¶ 17 Given our deference to the postconviction court’s credibility
assessments and its findings that have record support, we discern
was Carpenter’s burden at the Rule 35(c) hearing to prove that trial
8
counsel’s strategy was objectively unreasonable. See Strickland,
466 U.S. at 688. Instead, he has hinged his claim on the division’s
ultimate ruling in Carpenter I and Carpenter II affirming the
judgment on the sole ground that the motion for disqualification
was untimely. That doesn’t establish that counsel’s decision was
objectively unreasonable when he made it, given other
considerations. See Strickland, 466 U.S. at 689; Lathrop, 634 F.3d
at 937.
IV. Ineffective Assistance Claim Regarding Plea Offer
¶ 18 We also affirm the postconviction court’s denial of Carpenter’s
ineffective assistance claim that his trial counsel failed to convey a
plea offer to him.
¶ 19 As an initial matter, the record is inconclusive whether the
prosecutor ever extended a formal, specific plea offer to Carpenter’s
trial counsel. Trial counsel testified at the Rule 35(c) hearing that
he could not recall whether the prosecutor had ever extended a
formal offer, but that “there probably wasn’t a specific offer,” just “a
discussion of a [sentencing] range.” He testified that is typically
what happened in cases he worked with that prosecutor: the
prosecutor often would not make “a firm offer” but would instead
9
just “throw out a ball park” plea bargain figure that trial counsel
would relay to his client.
¶ 20 At the Rule 35(c) hearing, the prosecution did not have any
burden to prove the specific contours of any plea offer. Rather, it
was Carpenter’s burden to prove that there was a plea offer that
trial counsel failed to convey a plea offer to him.
¶ 21 Carpenter failed to prove deficient performance on this claim.
Trial counsel’s testimony at the Rule 35(c) hearing — which, again,
the postconviction court credited — was quite clear on four points:
• Given the facts of the case and the district judge
presiding over the case, trial counsel advised Carpenter
that if the case went to trial, Carpenter would probably
spend the rest of his life in prison (the record indicates
that Carpenter was fifty-five years old at the time of trial).
• Trial counsel “absolutely” told Carpenter about any and
all plea offers in the case, explaining that he believed he
was ethically required to convey even “horrible” plea
offers to clients.
• Carpenter was not interested in any plea offers that trial
counsel presented to him.
10
• Trial counsel tried to convince Carpenter to make a
counteroffer to the prosecution involving an eleven-year
prison sentence, but Carpenter refused.
¶ 22 In crediting trial counsel’s testimony, the postconviction court
specifically found that (1) counsel had communicated to Carpenter
“all potential plea offers” and the risks of going to trial,
(2) Carpenter had rejected trial counsel’s advice concerning any plea
offers and potential counteroffers, and (3) trial counsel had “met
and surpassed the standards of effective representation regarding
any potential plea offer.” Here, too, given our deference to the
postconviction court’s credibility assessments and its findings that
have record support, we discern no error in the court’s ruling. See
Dunlap, 173 P.3d at 1061-63.
V. Conclusion
¶ 23 The order is affirmed.
JUDGE VOGT and JUDGE TAUBMAN concur.
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