v. Timoshchuk , 2018 COA 153 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 1, 2018
2018COA153
No. 17CA0259, People v. Timoshchuk — Criminal Procedure —
Postconviction Remedies — Conviction Obtained or Sentence
Imposed in Violation of the Constitution; Constitutional Law —
Sixth Amendment — Right to Counsel
Defendant, a lawful permanent resident, was facing revocation
of felony probation for forgery and other charges. Upon admitting
the violation, he received a three-year prison sentence. Because of
the length of sentence on this crime, he lost his eligibility to seek
asylum in this country. He filed for postconviction relief, alleging
that his counsel at the time of the probation revocation was
ineffective in failing to advise him of this immigration consequence.
His postconviction motion was summarily denied.
We hold, apparently for the first time, that a defendant facing
probation revocation has a statutory right to counsel, and thus a
right to effective assistance of counsel. We further hold that the
Strickland test applies to claims of ineffective assistance of counsel
in the probation revocation context. Finally, we hold that defendant
alleged sufficient facts to warrant a hearing on his claim.
Accordingly, we reverse the summary denial, and remand for a
hearing.
COLORADO COURT OF APPEALS 2018COA153
Court of Appeals No. 17CA0259
El Paso County District Court No. 15CR1103
Honorable Thomas K. Kane, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Maksim V. Timoshchuk,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE TOW
Hawthorne and Bernard, JJ., concur
Announced November 1, 2018
Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for Defendant-
Appellant
¶1 Maksim V. Timoshchuk appeals the district court’s order
summarily denying his Crim. P. 35(c) motion for postconviction
relief based on a claim of ineffective assistance of counsel. We hold
apparently for the first time, that a probationer facing revocation
proceedings has a statutory right to counsel, and thus a right to
effective assistance of counsel as measured by the Strickland test.
Because Timoshchuk asserted sufficient facts to warrant a hearing
on his claim, we reverse and remand for further proceedings.
I. Background
¶2 Timoshchuk was born in Ukraine and admitted to the United
States as a refugee on July 16, 2002. The federal immigration
authorities adjusted his status to that of a lawful permanent
resident on November 17, 2005.
¶3 In March 2015, Timoshchuk was charged with forgery. As
part of a plea agreement, on April 21, 2015, Timoshchuk pleaded
guilty to forgery, pleaded guilty to DUI in a separate case, and
admitted violating his probation in a prior case. Timoshchuk was
sentenced to probation in all three cases.
¶4 In July 2015, Timoshchuk’s probation officer filed a complaint
in district court, alleging that Timoshchuk had violated the
1
conditions of his probation in part by being arrested and charged
with new offenses. On August 24, 2015, Timoshchuk entered into
an agreement resolving all four cases; specifically, he admitted to
violating probation in his prior cases and pleaded guilty to
possession of a controlled substance in his newest case. The
district court revoked Timoshchuk’s probation and resentenced him
on the forgery charge to three years in the custody of the
Department of Corrections concurrent with his other sentences.
¶5 On July 27, 2016, the Department of Homeland Security
initiated removal proceedings against Timoshchuk due to his
convictions involving a controlled substance and an aggravated
felony as defined in 8 U.S.C. § 1101(a)(43)(R) (2018).1 Because
Timoshchuk conceded the charges against him, the immigration
court found Timoshchuk removable as charged.
1 Timoshchuk’s forgery conviction became an aggravated felony
when he was sentenced to more than 364 days in prison on August
24, 2015. 8 U.S.C. § 1101(a)(43)(R) (2018) (“The term ‘aggravated
felony’ means . . . an offense relating to commercial bribery,
counterfeiting, forgery, or trafficking in vehicles the identification
numbers of which have been altered for which the term of
imprisonment is at least one year . . . .”).
2
¶6 In September 2016, Timoshchuk filed a Form I-589
Application for Asylum and for Withholding of Removal. The court
ultimately denied his application. The immigration judge ruled that
Timoshchuk was not eligible for asylum due to his aggravated
felony conviction.
¶7 Timoshchuk then filed a postconviction motion under Crim. P.
35(c), alleging that he was denied effective assistance of counsel
because his probation revocation counsel failed to adequately
investigate and correctly advise him of the immigration
consequences of his admission and subsequent sentencing.2 The
district court denied Timoshchuk’s motion without a hearing,
stating that Timoshchuk was “advised that the convictions in the
plea agreement would have adverse consequences on his
immigration status.”
2 Although the motion and opening brief at times appear to conflate
the April 21, 2015, guilty plea and the August 24, 2015, admission
to violating probation, the references to a “global plea deal” and
attachment of an affidavit from his probation revocation counsel (a
different lawyer than the one who represented him on his original
forgery plea) suggest that the underlying arguments pertain
exclusively to the August 24, 2015, admission. Accordingly, we
refer to the “global plea deal” as the admission.
3
II. Analysis
¶8 Timoshchuk argues that the court erred in denying his Crim.
P. 35(c) motion for postconviction relief without a hearing. We
agree.
A. Standard of Review
¶9 We review a district court’s summary denial of a Crim. P. 35(c)
motion de novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo.
App. 2010).
¶ 10 A district court may deny the motion without a hearing if the
motion, files, and record clearly show that the defendant is not
entitled to relief. People v. Venzor, 121 P.3d 260, 262 (Colo. App.
2005). “Summary denial of a postconviction relief motion is also
appropriate if the claims raise only an issue of law, or if the
allegations, even if true, do not provide a basis for relief.” Id. And a
court may deny a postconviction motion if its claims are bare and
conclusory or lack supporting factual allegations. Id.B. Applicable Law
1. Right to Counsel at a Probation Revocation Hearing
¶ 11 Before we can address a claim for relief under Crim. P. 35(c),
we must decide whether a right to counsel exists at a probation
4
revocation hearing. If no right to counsel exists, a defendant “bears
the risk . . . for all attorney errors made in the course of
representation.” Silva v. People, 156 P.3d 1164, 1169 (Colo. 2007)
(quoting People v. Silva, 131 P.3d 1082, 1089 (Colo. App. 2005)).
The parties dispute whether a probationer facing revocation has a
constitutional right to counsel at the revocation hearing. We note
that our supreme court has observed that two United States
Supreme Court cases set out “‘minimum requirements of due
process’ at parole or probation revocation hearings.” People v.
Atencio, 186 Colo. 76, 78-79, 525 P.2d 461, 462 (1974) (quoting
Morrissey v. Brewer, 408 U.S. 471, 489 (1972), and Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973)). The requirements include
(a) written notice of the claimed violations of
(probation or) parole; (b) disclosure to the
(probationer or) parolee of evidence against
him[;] (c) opportunity to be heard in person
and to present witnesses and documentary
evidence; (d) the right to confront and cross-
examine adverse witnesses (unless the hearing
officer specifically finds good cause for not
allowing confrontation); (e) a “neutral and
detached” hearing body such as a traditional
parole board, members of which need not be
judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence
relied on and reasons for revoking (probation
or) parole.
5
Id. (quoting Morrissey, 408 U.S. at 489, and Gagnon, 411 U.S. at
786). Notably absent from this list is the right to be represented by
counsel. Indeed, in Gagnon, the United States Supreme Court
rejected a categorical rule requiring court-appointed counsel for
indigent probationers facing revocation in favor of a case-by-case
assessment of whether “fundamental fairness — the touchstone of
due process — will require that the State provide at its expense
counsel for indigent probationers or parolees.” 411 U.S. at 790.
¶ 12 Gagnon involved a probationer who, upon receiving probation,
also received a suspended fifteen-year sentence, for which the
sentencing order provided that “(i)n the event of his failure to meet
the conditions of his probation he will stand committed under the
sentence all ready (sic) imposed.” Id. at 779 n.1. The Court
observed that probation revocation “is not a stage of a criminal
prosecution.” Id. at 782. In doing so, the Court distinguished an
earlier case, Mempa v. Rhay, 389 U.S. 128 (1967). In that case, the
United States Supreme Court ruled that a defendant placed on
probation as part of a deferred sentence was entitled to counsel at
the hearing to revoke the probation and enter the initial sentence.
6
389 U.S. at 137. However, the Gagnon court held that the
reasoning underpinning Mempa “does not require a hearing or
counsel at the time of probation revocation in a case such as the
present one, where the probationer was sentenced at the time of
trial.” 411 U.S. at 781.
¶ 13 The facts of the case before us fall between Mempa and
Gagnon. Timoshchuk was sentenced upon entry of his plea in April
2015. But, unlike in Gagnon, the sentence did not include a
suspended component that would take effect automatically upon
revocation of probation. Cf. People v. Abdul, 935 P.2d 4 (Colo.
1997) (holding that a defendant is not entitled to a resentencing
hearing or appointment of counsel after termination from a
community corrections program).
¶ 14 We need not determine, however, whether due process, in light
of its touchstone of fundamental fairness, requires appointment of
counsel in all probation revocation hearings such as the one at
issue here, because we conclude that the legislature has provided
probationers facing revocation with a statutory right to counsel.
See Dami Hosp., LLC v. Indus. Claim Appeals Office, 2017 COA 21, ¶
15 (recognizing that courts should avoid constitutional issues that
7
need not be resolved in order to decide a case) (cert granted Sept.
11, 2017).
¶ 15 When the government seeks to revoke an offender’s probation,
the court is required, at the probationer’s first appearance on the
revocation, to “advise the probationer as provided in section 16-7-
207 insofar as such matters are applicable; except that there is no
right to a trial by jury in proceedings for revocation of probation.”
§ 16-11-206(1), C.R.S. 2018. Section 16-7-207, C.R.S. 2018, in
turn, sets out a defendant’s trial rights. In particular, it provides
that “it is the duty of the judge to inform the defendant and make
certain that the defendant understands . . . [t]he defendant has a
right to counsel.” § 16-7-207(1)(b).
¶ 16 Of course, the probation revocation statute does not
necessarily incorporate every right enumerated in section 16-7-207
into a probation revocation proceeding. For example, section 16-7-
207(1)(f) includes the right to a jury trial. However, that right is
explicitly excluded in probation revocation proceedings. § 16-11-
206(1). Also, section 16-7-207(1)(a) provides the defendant’s right
to remain silent. However, in a probation revocation hearing, the
prosecution may call the probationer as a witness, and his refusal
8
to answer questions may be used against him. Byrd v. People, 58
P.3d 50, 56-57 (Colo. 2002).
¶ 17 To our knowledge, no Colorado appellate court has directly
addressed whether the interplay of sections 16-11-206 and 16-7-
207 operates as a legislative grant of the right to counsel at a
probation revocation hearing. Analyzing an earlier statute, the
Colorado Supreme Court held that while a probationer was not
entitled to a hearing (and, thus, presumably not entitled to counsel)
prior to his probation being revoked, he was entitled to counsel at
the time sentencing was imposed following the revocation.3 Gehl v.
People, 161 Colo. 535, 539-40, 423 P.2d 332, 334-45 (1967). The
statute at issue in that case, however, did not include a cross-
reference to statutory language incorporating any trial rights. See
§ 39-16-9, C.R.S. 1963.
¶ 18 In later cases, divisions of this court have clearly proceeded on
the tacit assumption that a right to counsel at a probation
revocation hearing exists, but have not engaged in a formal analysis
3Timoshchuk does not assert that his counsel’s performance
during his resentencing was deficient.
9
of the existence or source of this right. See People v. Ruch, 2013
COA 96, ¶¶ 16-27 (addressing a claim of improper denial of a
request for substitute appointed counsel), rev’d on other grounds,
2016 CO 35; People v. Firth, 205 P.3d 445, 451 (Colo. App. 2008)
(addressing a claim of ineffective assistance of counsel during a
probation revocation hearing); People v. Martin, 987 P.2d 919, 928
(Colo. App. 1999) (same), rev’d on other grounds, 27 P.3d 846 (Colo.
2001); cf. People v. Johnson, 2017 COA 97, ¶ 79 (Harris, J.,
dissenting) (observing, in a case involving a probationer’s right to
bail while a revocation complaint is pending, that “[a]ll of the rights
delineated in [section 16-7-201(1)], with the exception of the right to
a jury trial, appear to be applicable to revocation proceedings”).4
¶ 19 In our view, nothing in the statutory language suggests the
legislature considered the right to counsel to be inapplicable at a
probation revocation hearing. See § 16-11-206.5 Indeed, the very
nature of the right to counsel suggests the contrary. We note, for
4 We do not express any opinion as to whether any other rights
enumerated in section 16-7-207 are inapplicable to probation
revocation proceedings.
5 Neither party provided any legislative history for our
consideration.
10
example, that a probation revocation is often the result of new
charges filed against the probationer, as it was in Timoshchuk’s
case. It would be illogical, and would potentially engender
confusion of roles, if a defendant in Timoshchuk’s shoes were
entitled to court-appointed counsel on the new charges, but that
same attorney could not be appointed to provide advice as to how
the new charges may impact the existing probation sentence.
Further, even if no new charges are involved, the services of counsel
would certainly be of assistance to probationers in presenting
defenses to the revocation complaint and mitigation in post-
revocation sentencing, at least where there has not been a binding
suspended sentence included as a component of the initial
probation term. For these reasons, we now make explicit what was
previously merely presumed, and hold that the General Assembly
has provided probationers with a right to counsel at a probation
revocation hearing.
2. Standard for Evaluating Probation Revocation Counsel
¶ 20 Having determined that a probationer has a statutory right to
counsel at a probation revocation hearing in Colorado, we must
next determine what standard of performance should be applied to
11
such counsel. Facing a similar question upon the recognition of a
limited statutory right to postconviction counsel, the Colorado
Supreme Court noted that “a party whose counsel is unable to
provide effective representation is in no better position than one
who has no counsel at all.” Silva, 156 P.3d at 1169 (quoting Evitts
v. Lucey, 469 U.S. 387, 396 (1985)). As a result, the Silva court
adopted the standard announced in Strickland v. Washington, 466
U.S. 668 (1984). For the same reasons, we hold that the Strickland
standard is the appropriate test for evaluating the effectiveness of
probation revocation counsel. See Firth, 205 P.3d at 451 (applying
Strickland test at a probation revocation hearing).
¶ 21 Strickland established a two-prong test for ineffective
assistance of counsel claims. 466 U.S. at 687. To prove an
ineffective assistance of counsel claim, a defendant must show (1)
that counsel’s performance was deficient (in that it fell below an
objective standard of reasonableness) and (2) that the deficient
performance prejudiced his defense. Id. at 687-88; Ardolino v.
People, 69 P.3d 73, 76 (Colo. 2003).
¶ 22 As to the first prong of the Strickland test, the defendant must
allege facts that, if true, show that in light of all the circumstances,
12
counsel’s identified acts or omissions were outside the wide range of
professionally competent assistance. Ardolino, 69 P.3d at 77. As to
the second prong, the defendant must assert facts that, if true,
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. Reasonable probability means a
probability sufficient to undermine confidence in the outcome. Id.C. Analysis
¶ 23 Timoshchuk contends that the district court erred in
summarily denying his claim that his probation revocation counsel
failed to sufficiently investigate and advise him of the specific
immigration consequences of his admission. We agree.
¶ 24 In cases involving noncitizen defendants, when the deportation
consequence of a conviction “is truly clear,” counsel must provide
“correct advice.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010);
People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011), aff’d, 2012 CO
73. Failing to do so falls below an objective standard of
reasonableness. Padilla, 559 U.S. at 369.
¶ 25 As relevant here, federal immigration law provides that “[a]ny
alien who is convicted of an aggravated felony at any time after
13
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2018).
Timoshchuk was convicted of an aggravated felony when he pleaded
guilty to forgery and was subsequently sentenced to three years
imprisonment. See 8 U.S.C. § 1101(a)(43)(R). Thus, it is clear that
Timoshchuk could be subject to removal under this section for his
aggravated felony conviction. Because § 1227(a)(2)(A)(iii) is
“succinct and straightforward,” Timoshchuk’s probation revocation
counsel should have advised him with certainty that his admission
and resulting sentence could subject him to removal proceedings
under this section. Padilla, 559 U.S. at 369; People v. Campos-
Corona, 2013 COA 23, ¶ 13. We note that this omission alone
would not be sufficient to sustain his claim under Crim. P. 35(c).
Timoshchuk was also subject to removal proceedings because of a
controlled substance conviction. See 8 U.S.C. § 1227(a)(2)(B)(i)
(“Any alien who at any time after admission has been convicted of a
violation of . . . any law . . . relating to a controlled substance . . . is
deportable.”). Therefore, because he was already subject to removal
based on a previous plea, he cannot demonstrate prejudice flowing
from this particular omission by probation revocation counsel.
14
¶ 26 However, Timoshchuk’s aggravated felony conviction also
foreclosed an application for asylum that would halt his removal
proceedings. An alien convicted of a “particularly serious crime”
may not apply for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii) (2018). “For
purposes of clause (ii) of subparagraph (A), an alien who has been
convicted of an aggravated felony shall be considered to have been
convicted of a particularly serious crime.” § 1158(b)(2)(B)(i). Thus,
Timoshchuk became ineligible for asylum when he was sentenced
to three years in prison for the forgery conviction. Again, because
this statutory language is clear, his counsel should have advised
him with certainty of the immigration consequences of his
admission. See Padilla, 559 U.S. at 369; Campos-Corona, ¶ 13.
¶ 27 Timoshchuk was entitled to an advisement from counsel of the
specific immigration consequences of his admission — namely, that
he was subject to removal proceedings and was ineligible for
asylum. He alleges he did not receive such advice. If true, he may
be entitled to relief.
¶ 28 In summarily denying the postconviction motion, the district
court stated that Timoshchuk had been advised that the
convictions would have adverse consequences on his immigration
15
status. While it is true that in his original written plea agreement,
he acknowledged being advised, this fact alone is insufficient to
defeat his right to a hearing. See United States v. Akinsade, 686
F.3d 248, 254 (4th Cir. 2012) (holding that court’s admonition that
guilty plea could lead to deportation was not sufficient to cure
lawyer’s specific erroneous advice), cited with approval in People v.
Morones-Quinonez, 2015 COA 161, ¶ 23. The issue is not only
whether he received advice, but also whether any advice he did
receive was adequate. Padilla, 559 U.S. at 367. Timoshchuk has
alleged sufficient facts to warrant a hearing on the adequacy of the
advice he received.
¶ 29 In support of his Crim. P. 35(c) motion, Timoshchuk attached
an affidavit signed by his probation revocation counsel, stating that
she did not provide him with a specific advisement of the
immigration consequences of his admission. However, it would be
error for this court to render judgment on the pleadings based on
an affidavit attached to a Rule 35(c) motion. People v. Smith, 2017
COA 12, ¶ 17 (holding that an affidavit attached to a response to a
Rule 35(c) motion is not a part of the record for purposes of
determining whether to conduct a hearing). Because the district
16
court is in a better position to make these factual determinations
after conducting an evidentiary hearing, we must remand the case.
See People v. Walford, 746 P.2d 945, 946 (Colo. 1987) (remanding
for district court to make findings and conclusions because it was
“far better suited to make these determinations”).6
III. Conclusion
¶ 30 The order is reversed, and the case is remanded to the district
court for further proceedings consistent with this opinion.
JUDGE HAWTHORNE and JUDGE BERNARD concur.
6 The People are entitled to cross-examine Timoshchuk’s probation
revocation counsel in order to test the veracity of the statement and
further explore what specifically was said. Moreover, the
statements of his probation revocation counsel alone are not
sufficient to determine whether Timoshchuk was prejudiced by the
allegedly deficient advice, given that the record reflects he also
received some immigration advice from his initial attorney prior to
entering his April 2015 forgery plea. The People must be given the
opportunity to explore the full extent of Timoshchuk’s
understanding at the time of his admission.
17