People v. McGlaughlin

     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
                                                               August 9, 2018

                               2018COA114

No. 15CA2008, People v. McGlaughlin — Civil Procedure — Law
Student Practice; Constitutional Law — Sixth Amendment —
Right to Counsel

     As a matter of first impression, the division holds that when a

criminal defendant is represented by a student attorney under

C.R.C.P. 205.7, a supervising attorney must be physically present

in the courtroom during all critical stages of the criminal case. If

the supervising attorney is not present during a critical stage, the

defendant is denied his Sixth Amendment right to counsel. The

division further holds that all other violations of C.R.C.P. 205.7 are

properly analyzed under the test for ineffective assistance of counsel

announced in Strickland v. Washington, 

(1984).

     The majority concludes that the record in this Crim. P. 35(c)

motion did not clearly establish that the supervising attorney was
present during defendant’s plea hearing. The case is therefore

reversed and remanded to the postconviction court for an

evidentiary hearing and further findings.

     The dissent defers to the postconviction court’s findings of fact

that (1) the public defender was present in the courtroom during

defendant’s guilty plea and (2) the public defender adequately

supervised the student attorney. It therefore determines the record

supported the postconviction court’s conclusion that defendant did

not show, under 

, that he had been

prejudiced by violations of C.R.C.P. 205.7. As a result, the dissent

would hold that the postconviction court did not err when it denied

defendant’s Crim. P. 35(c) motion without a hearing.
COLORADO COURT OF APPEALS                                        2018COA114


Court of Appeals No. 15CA2008
Boulder County District Court Nos. 12CR245, 12M689 & 12M1067
Honorable Ingrid S. Bakke, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Paul McGlaughlin,

Defendant-Appellant.


                       ORDER REVERSED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division VII
                          Opinion by JUDGE BERGER
                              Loeb, C.J., concurs
                             Bernard, J., dissents

                          Announced August 9, 2018


Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant
¶1     Like many states, Colorado permits law students to represent

 defendants in criminal cases under limited circumstances and

 subject to specific requirements that must be met by both the law

 student and the supervising lawyer. C.R.C.P. 205.7.1

¶2     After pleading guilty to third degree assault and violation of a

 protection order, defendant, Jason Paul McGlaughlin, moved to

 vacate his plea and the resulting convictions, claiming that he was

 deprived of his Sixth Amendment right to effective assistance of

 counsel when he was represented only by a law student, not a

 licensed lawyer, at his plea hearing.




 1At the time of McLaughlin’s plea, the requirements for law practice
 by a law student were contained in both statutes, sections 12-5-
 116.1 and -116.2, C.R.S. 2012, and rules promulgated by the
 supreme court, C.R.C.P. 226.5 (2012). See People v. Coria, 

, 389 (Colo. 1997) (generally discussing the statutes’
 requirements). In 2014, the supreme court promulgated C.R.C.P.
 205.7, which replaced C.R.C.P. 226.5, Rule Change 2014(09),
 Colorado Rules of Civil Procedure (Amended and Adopted by the
 Court En Banc, Sept. 1, 2014), https://perma.cc/2LPT-3UQJ, and
 the legislature later relocated the pertinent statutes to sections 13-
 93-202 and -203, C.R.S. 2017, Ch. 192, sec. 1, §§ 13-93-202, -203,
 2017 Colo. Sess. Laws 701-03. No substantive changes were made
 when the court promulgated C.R.C.P. 205.7. Because the
 requirements of both the rule and the statutes are essentially
 identical, we address only the rule.


                                    1
¶3    The postconviction court denied McGlaughlin’s Crim. P. 35(c)

 motion without a hearing, concluding that the record disproved

 McLaughlin’s claim. We disagree with the postconviction court’s

 analysis and disposition and reverse the court’s order.

              I.   Relevant Facts and Procedural History

¶4    McGlaughlin was involved in a fight with his ex-girlfriend’s

 new boyfriend. The prosecution charged him with second degree

 assault (a felony) and a related traffic offense.

¶5    Based on McGlaughlin’s alleged conduct, his ex-girlfriend

 obtained a temporary protection order that prohibited McGlaughlin

 from contacting her. McGlaughlin allegedly violated the order twice,

 which resulted in the filing of two additional misdemeanor charges.

¶6    McGlaughlin resolved all these charges by pleading guilty to

 one count of third degree assault (a misdemeanor) and to one count

 of violating a protection order (also a misdemeanor). At his plea

 hearing, McGlaughlin was represented by a law student extern




                                     2
 practicing under C.R.C.P. 205.7.2 The court accepted

 McGlaughlin’s plea and sentenced him to two years of probation.

¶7    McGlaughlin alleged the following material facts in his Crim.

 P. 35(c) motion, which sought to vacate his plea and conviction:

          The deputy public defender who was assigned to

           supervise the law student was not present in the

           courtroom when he pleaded guilty.

          He was unaware, until after the plea hearing, that the

           student was not, in fact, a licensed lawyer.

          While he pleaded guilty only to misdemeanors, he was

           charged with a felony, and law students are prohibited

           from representing defendants in felony proceedings.

          He never consented, in writing or otherwise, to

           representation by a law student.




 2 The title of C.R.C.P. 205.7 is “Law Student Practice,” and the rule
 refers to practice by “Law Student Externs.” But in 

, the supreme court referred to the law student there as a
 “certified law student intern.” We perceive no distinction between
 an intern and an extern, and we consider those terms to be
 synonymous.


                                   3
              The law student did not make a record during the plea

                hearing that she was an extern, and the court was not

                aware that she was one.

¶8         The postconviction court denied his motion without a hearing,

 concluding that (1) the record established that the deputy public

 defender was, in fact, present at the plea hearing; (2) McGlaughlin

 was adequately represented by counsel at all critical stages of the

 proceedings; (3) the record established that McGlaughlin was not

 entitled to relief on the basis of his claim of ineffective assistance of

 counsel; and (4) McGlaughlin’s plea was entered knowingly,

 intelligently, and voluntarily.

     II.     The Postconviction Court Erred by Denying McGlaughlin’s
                          Claim Without a Hearing

¶9         McGlaughlin argues that his plea was constitutionally invalid

 under the Sixth Amendment because he was not represented by a

 licensed lawyer at a critical stage of his criminal case. He also

 asserts that the assistance that he received from the law student

 who represented him was ineffective because the deputy public

 defender did not adequately supervise her.




                                       4
              A.    Colorado’s Law Student Practice Rule

¶ 10   As relevant to our analysis, C.R.C.P. 205.7 imposes the

  following conditions and limitations on the representation of

  criminal defendants by law students:

       •    They cannot represent a defendant who “has been

            charged with a felony.” C.R.C.P. 205.7(2)(a)(i).

       •    The defendant must consent, in writing, to the law

            student’s representation. C.R.C.P. 205.7(2)(a)(i)(B).

       •    The defendant’s written consent “shall be made in the

            record of the case and shall be brought to the attention of

            the judge of the court.” C.R.C.P. 205.7(2)(a)(ii).

       •    When representing the office of the state public defender

            and its clients, the law student must be “under the

            supervision of the public defender or one of his or her

            deputies.” C.R.C.P. 205.7(2)(a)(i)(B).




                                    5
       •     The supervising lawyer must sign and approve all

             pleadings, briefs, and other legal documents. C.R.C.P.

             205.7(2)(a)(iii).3

             B.    The Effect of a Violation of C.R.C.P. 205.7

¶ 11   There is no serious disagreement that a number of these

  conditions were violated in this case. Indeed, the postconviction

  court so found. The question we must decide, then, is the effect, if

  any, of those violations on McGlaughlin’s guilty pleas and resulting

  convictions.4

¶ 12   A criminal defendant has a Sixth Amendment right to the

  assistance of counsel at all critical stages of his criminal case. U.S.

  Const. amend. VI; Wheat v. United States, 

, 158-59

  (1988); People v. Arguello, 

, 92 (Colo. 1989). “[T]he

  acceptance of a plea offer and the entry of a guilty plea is a critical


  3We note that there is some question whether subsection (2)(a)(iii)
  applies to the law student practice governed by C.R.C.P.
  205.7(2)(a)(i) or whether it is only applicable in situations that are
  not governed by C.R.C.P. 205.7(2)(a)(i). Given our disposition, it is
  unnecessary for us to decide this question.
  4 We have no jurisdiction to address, and therefore express no
  opinions on, the regulatory or disciplinary consequences, if any, of
  any of these violations. See Colo. Supreme Court Grievance Comm.
  v. Dist. Court, 

, 152 (Colo. 1993).


                                     6
  stage, creating an entitlement to counsel.” Carmichael v. People,

  

, 805 (Colo. 2009). The interpretation and application

  of the Sixth Amendment is a matter of federal, not Colorado, law.

  Cmty. Hosp. v. Fail, 

, 672 (Colo. 1998).

¶ 13   The licensure of lawyers, however, is a matter of state law.

  People v. Coria, 

, 389 (Colo. 1997). The Colorado

  Supreme Court has the “sole authority to license attorneys . . . and

  to prescribe the rules and circumstances under which a person may

  appear as counsel in Colorado courts.” 

the

  supreme court could, as a matter of state law, authorize law

  students to engage in the plenary practice of law. We need not

  address any Sixth Amendment ramifications of doing so, because

  the supreme court has refused to exercise any such authority.

¶ 14   In Coria, the court rejected the argument that law students are

  the equivalent of licensed lawyers when they practice under

  C.R.C.P. 205.7. 

defendant argued that his Sixth

  Amendment rights were violated when the trial court refused him

  his counsel of choice — a law student extern. 

  court held that the defendant’s Sixth Amendment rights were not

  violated because “the law student intern was neither a deputy


                                    7
  public defender nor a licensed Colorado practitioner. Defendants

  do not have a right under the Sixth Amendment to be represented

  by unlicensed persons. ‘[A]n advocate who is not a member of the

  bar may not represent clients . . . in court.’” 

  486 U.S. at 159). It follows that a law student is an “unlicensed

  person[],” not a licensed lawyer. 

Supervising Lawyer’s Presence

¶ 15   C.R.C.P. 205.7 does not explicitly require the presence of the

  supervising lawyer in the courtroom during critical stages of

  criminal cases, unlike the rules of virtually every other state that

  authorizes the limited practice of law by law students. See, e.g., Ill.

  Sup. Ct. R. 711(c)(2)(iii) (stating that a law student may participate

  in criminal proceedings “as an assistant of the supervising member

  of the bar, who shall be present and responsible for the conduct of

  the proceedings”); Miss. Code Ann. § 73-3-207(e) (West 2017) (“Law

  students may appear and participate in trials and hearings in

  courts if the supervising attorney or clinical teacher is present and

  supervising the student.”); Wash. Admission & Practice R. 9

  (detailing the activities a law student may do without the presence




                                     8
  of the supervising lawyer and those where the supervising lawyer

  must be present).

¶ 16   The Sixth Amendment, however, requires that a defendant

  have a licensed lawyer at the critical stages of his criminal case,

  Wheat, 

, and, as noted, the Colorado Supreme

  Court has held that law students are not licensed lawyers, 

. Thus, the Sixth Amendment requires that a

  licensed lawyer be present in the courtroom when a law student

  represents a criminal defendant during a critical stage of his

  criminal case.

¶ 17   If the supervising lawyer is not in the courtroom during those

  critical stages, no licensed lawyer is present, and the defendant is

  denied his constitutional right to counsel guaranteed by the Sixth

  Amendment. Such a complete deprivation of counsel is a structural

  error, requiring reversal without regard to any showing of prejudice.

  United States v. Cronic, 

, 659 n.25 (1984); Hagos v.

  People, 

, ¶ 10.

                   2.   Other Violations of C.R.C.P. 205.7

¶ 18   Having determined that it is a violation of C.R.C.P. 205.7 for

  the supervising lawyer not to be present during critical stages of a


                                     9
  criminal case, and that such a violation constitutes structural error,

  we now turn to the question of how to evaluate other possible

  violations of C.R.C.P. 205.7. No Colorado appellate case has

  addressed this question; however, a number of other states

  (applying similar statutes or rules) have.

¶ 19   One line of cases holds that even if a licensed lawyer appears

  at the proceeding, the substantial involvement by a law student

  (such as the examination of witnesses), without the client’s consent

  to representation by the law student, is a structural error. See

  People v. Miller, 

, 709 (Cal. App. Dep’t Super. Ct.

  1979); In Interest of C.B., 

, 448 (Fla. Dist. Ct. App.

  1989); see also In re Denzel W., 

, 986 (Ill. 2010)

  (Freeman, J., dissenting).5

¶ 20   This conclusion is premised on the theory that allowing a non-

  lawyer to participate in the proceeding without the defendant’s

  actual consent constitutes a partial waiver of the right to counsel.

  5 By citing these cases, which addressed statutes or rules that
  required the client’s consent to be in writing, we do not address
  whether the Sixth Amendment, as opposed to rules governing
  student lawyer practice, requires written consent. See People v.
  Miller, 

, 709 (Cal. App. Dep’t Super. Ct. 1979); In
  Interest of C.B., 

, 448 (Fla. Dist. Ct. App. 1989).


                                    10
  

. Such a waiver must be knowingly,

  voluntarily, and intentionally made. 

  Another line of cases holds that all violations of the rules

  governing student practice — other than the threshold question of

  the supervising lawyer’s presence — are evaluated under the

  Strickland v. Washington, 

(1984), test governing the

  ineffective assistance of counsel. Washington v. Moore, 

, 662 (8th Cir. 2005); Denzel 

; State v.

  Loding, 

, 676-82 (Neb. 2017).

¶ 22   We agree with those decisions that apply Strickland to

  violations other than the absence of the supervising lawyer. They

  appropriately distinguish the situation in which the defendant is

  not represented by counsel at all — when only a non-licensed law

  student is representing the defendant during a critical stage of his

  criminal case — from the very different circumstance in which the

  defendant is represented by a licensed lawyer but the

  representation allegedly falls below the level of competence

  demanded by the Constitution, due in part to the participation of

  the law student.




                                    11
¶ 23   While the presence or absence of a supervising lawyer in the

  courtroom is a binary choice, other possible violations of C.R.C.P.

  205.7, such as the quality and quantity of supervision, or whether

  consent was given (orally, in writing, or both), are more nuanced.

  Once it has been determined that the defendant was represented by

  a licensed lawyer, it is entirely appropriate to determine the

  adequacy of that representation by the test for ineffective assistance

  of counsel announced in Strickland, 

. See Denzel 

.

          C.   Analysis of McGlaughlin’s Crim. P. 35(c) Motion

¶ 24   The supreme court has repeatedly held that a postconviction

  court must hold an evidentiary hearing on a Crim. P. 35(c) motion

  “unless 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, 

, ¶ 17 (emphasis

  added) (citing White v. Denver Dist. Court, 

, 634 (Colo.

  1988)). “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.” People v.

  Venzor, 

, 262 (Colo. App. 2005). “Likewise, if the


                                     12
  claims are bare and conclusory in nature, and lack supporting

  factual allegations, the motion may also be denied without a

  hearing.” 

  We review de novo a postconviction court’s denial of a Crim. P.

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

,

  1266 (Colo. App. 2010); see also People v. Higgins, 

,

  ¶ 11; People v. Smith, 

, ¶ 12; People v. Phipps, 

, ¶ 20.

¶ 26   At the same time, we recognize the tension between de novo

  review and the supreme court rule authorizing postconviction

  courts to make some findings of fact without a hearing in deciding

  Crim. P. 35(c) motions. See Crim. P. 35(c)(3)(V). But, contrary to

  the dissent’s contention, not every disputed question of fact can be

  decided without a hearing. Were that the case, the supreme court’s

  default rule that a hearing is required unless an exception applies

  would be swallowed by the exception itself.

¶ 27   To give effect to the supreme court’s default rule, deference to

  a postconviction court’s factual finding by application of the clearly

  erroneous standard is warranted only when the factfinding was




                                    13
  made using accepted procedures and when the record clearly

  establishes the fact. Neither requirement was met here.

¶ 28   Ordinarily, of course, in order to properly find disputed facts, a

  court holds a hearing and considers all (not just some) of the

  relevant evidence, documentary and testimonial, before making a

  factual finding. See, e.g., J.A. Walker Co. v. Cambria Corp., 

, 130 (Colo. 2007) (applying this rule to a fraudulent

  inducement challenge to an arbitration agreement); Archangel

  Diamond Corp. v. Lukoil, 

, 1190 (Colo. 2005), as

  modified on denial of reh’g (Dec. 19, 2005) (applying this rule in the

  C.R.C.P. 12(b)(2) context); People v. Wunder, 

, ¶ 34

  (“[A] trial court may not, consistent with procedural due process,

  enter judgments for civil penalties and restitution on disputed facts

  without holding an evidentiary hearing.”).

¶ 29   Here, the postconviction court relied on some evidence to find

  that the public defender was present in the courtroom during

  McGlaughlin’s plea hearing. But, the court did not consider all of

  the evidence, some of which would support a finding that the public

  defender was not present. And, indisputably, it did not consider

  the evidence perhaps most probative of the question — testimony


                                    14
  by the public defender and even the presiding judge. For this

  reason alone, the court’s factual finding is not entitled to deference

  under the clearly erroneous standard of review.

¶ 30   Moreover, the second requirement for deference is also lacking

  — the fact is not “clearly established” by the existing record.

¶ 31   To effectuate the supreme court’s relevant holdings,

  postconviction courts may only dispense with a hearing when the

  record clearly establishes that the defendant is not entitled to relief.

  Kazadi, ¶ 17. That is, when a disputed issue of material fact is

  central to the determination of whether the defendant has alleged a

  meritorious postconviction claim, that fact may be determined by

  the court only when the fact itself is “clearly established.” See IV

  ABA Standards for Criminal Justice § 22-4.6(a) (2d ed. 1980) (“A

  plenary hearing to receive evidence, by testimony or otherwise, is

  required whenever there are material questions of fact which must

  be resolved in order to determine the proper disposition of the

  application for relief.”). It follows that a postconviction court may

  make a dispositive factual finding without a hearing only when the

  fact in question is “clearly established.”




                                     15
¶ 32   For the reasons we articulate below, the historical finding of

  fact that the public defender was present at the plea hearing is not

  clearly established by the existing record. As a result, contrary to

  the dissent’s suggestion, we may not defer to that factual finding.

  We must instead remand for the postconviction court to hold an

  evidentiary hearing on that question and then make findings of fact

  after considering all of the relevant evidence.

                  1.    The Public Defender’s Presence

¶ 33   As noted, McGlaughlin specifically alleged in his Crim. P. 35(c)

  motion that the deputy public defender was not present in the

  courtroom when he pleaded guilty.

¶ 34   In finding that the deputy public defender was present at the

  plea hearing, the postconviction court primarily relied on the plea

  court’s minutes.6 Based on our review of the court’s minutes

  (reproduced below), we are convinced that those minutes alone




  6 In that respect, we note that the judge who decided the
  postconviction motion was not the same judge who presided over
  the plea hearing. Thus, the postconviction court could have had no
  personal knowledge that the public defender was present at the plea
  hearing.


                                    16
  cannot properly be the basis of the court’s factual finding made

  without a hearing.

¶ 35   First, the minutes relied on by the postconviction court reflect

  two separate proceedings: the plea hearing, which took place on

  November 19, 2012, and the sentencing hearing, which took place

  on January 10, 2013. Even if the deputy public defender was

  present at the sentencing hearing (and he apparently was based on

  the transcript of that hearing), such a determination is not

  dispositive of the question whether the deputy public defender also

  was present at the critical plea hearing.




¶ 36   We cannot determine from the face of the minutes whether the

  deputy public defender was present at the plea hearing, the



                                    17
  sentencing hearing, or both. Nor can we determine when the

  apparently different handwritten notations were made by the

  presiding judicial officer. Importantly, we cannot tell if the name of

  the deputy public defender (A. Egizi) was inserted at the sentencing

  hearing or at the plea hearing.

¶ 37   Second, there is other evidence in the record that supports a

  finding that the public defender was not present. The transcript of

  the plea hearing, for example, does not reflect the appearance of the

  deputy public defender in any respect. He is not listed on the

  portion of the hearing transcript that traditionally contains the

  names of the lawyers who were present and participated in the

  hearing. So far as can be gleaned from the transcript, the deputy

  public defender never entered his appearance or introduced the law

  student to the court at the hearing as required by C.R.C.P.

  205.7(2)(b)(i)(D). See 

.

¶ 38   The plea court also never addressed the deputy public

  defender at the hearing (indeed, from the context of the presiding

  judge’s statements, we cannot tell whether the judge was aware

  that the person representing McGlaughlin was not a licensed

  lawyer, but instead a law student).


                                    18
¶ 39   Third, the law student alone signed the “Attorney Certificate to

  the Court” in McGlaughlin’s plea agreement and Crim. P. 11

  advisement. Although the signature line is labeled as “Attorney’s

  Signature,” only the law student (who is not a lawyer) signed the

  document. The deputy public defender’s name does not appear

  anywhere on the plea agreement.

¶ 40   While the court minutes constitute relevant evidence on the

  question of whether the deputy public defender was present at the

  plea hearing, they are by no means conclusive of that question, and

  they do not rise to the level of certainty required to dispense with an

  evidentiary hearing.7 In other words, the court minutes do not,

  together with any other information in the record, “clearly establish”

  that the deputy public defender was at the plea hearing. It follows


  7 The rule that the interpretation of an unambiguous writing is a
  question of law, see O’Brien v. Vill. Land Co., 

, 249
  (Colo. 1990), provides no support for the postconviction court’s
  finding. In this case, no single writing is dispositive of the question
  of whether the public defender was present at the plea hearing.
  Indeed, to make a reasoned determination of that question, a fact
  finder must consider multiple writings (the court minutes,
  transcripts of the plea hearing, and the documents executed in
  connection with the plea hearing) as well as testimony of percipient
  witnesses: the defendant, the public defender, the prosecutor, and
  even the judge that presided over the hearing.


                                    19
  that the postconviction court erred in deciding this quintessentially

  factual question without a hearing.

              2.    Effectiveness of McGlaughlin’s Counsel

¶ 41   Just as we cannot on this record sustain the postconviction

  court’s finding that the deputy public defender was present during

  McGlaughlin’s plea hearing, we also cannot sustain the court’s

  findings and conclusions without a hearing that the law student

  was adequately supervised — which was central to its conclusion

  that McGlaughlin received the effective assistance of counsel.

¶ 42   The postconviction court concluded — based in part on its

  erroneous finding that the deputy public defender was present at

  the plea hearing — that the law student was supervised in her

  representation of McGlaughlin. It also found that the law student

  was “involved in a supervised capacity with two licensed attorneys

  well before [McGlaughlin] entered a guilty plea.” While that finding

  may be supported by the record, we conclude that absent a hearing,

  it is insufficient to support a further finding that the deputy public

  defender adequately supervised (or supervised at all) the law

  student in connection with the plea hearing.




                                    20
¶ 43   Irrespective of whether the law student previously represented

  McGlaughlin or appeared on his behalf at other hearings, applying

  the Kazadi standard, the record does not “clearly establish” the

  quantity or quality of supervision respecting the legal advice

  provided in connection with the plea hearing. Therefore, the

  postconviction court erred in deciding this question without the

  benefit of a hearing.

                3.    An Evidentiary Hearing is Required

¶ 44   We therefore remand the case to the postconviction court for

  an evidentiary hearing. Based on the evidence presented at that

  hearing, the postconviction court must first determine if the deputy

  public defender was present during the plea hearing. If it finds that

  the deputy public defender was not present at McGlaughlin’s plea

  hearing, then McGlaughlin was deprived of his constitutional right

  to counsel — a structural error — and the postconviction court

  must vacate McGlaughlin’s plea and judgment of conviction, and

  reinstate the original charges. See Denzel 

;

  see also Hagos, ¶ 10; 

.

¶ 45   If, on the other hand, the postconviction court finds that the

  deputy public defender was present during the plea hearing, it


                                    21
  must then reanalyze McGlaughlin’s remaining claims — including

  his claim that the law student was not adequately supervised —

  under Strickland. See Denzel 

; see also

  

; 

.

¶ 46   Finally, if, based on the evidence presented, the court finds

  that the deputy public defender was present during McGlaughlin’s

  plea hearing and that McGlaughlin did not meet his burden under

  Strickland to show that he was deprived of the effective assistance

  of counsel, McGlaughlin is not entitled to relief and the court

  should again deny his Crim. P. 35(c) motion.

                            III.   Conclusion

¶ 47   The order denying McGlaughlin’s Crim. P. 35(c) motion is

  reversed, and the case is remanded for the proceedings directed

  above.

       CHIEF JUDGE LOEB concurs.

       JUDGE BERNARD dissents.




                                    22
       JUDGE BERNARD, dissenting.

¶ 48   I disagree with the majority’s decision to reverse the trial

  court’s order. I therefore respectfully dissent.

                                I.   Introduction

¶ 49   Generally, the Sixth Amendment requires a licensed attorney

  to represent a client in court. Wheat v. United States, 

,

  159 (1988). But C.R.C.P. 205.7 allows certified law students to

  practice in certain circumstances. See People v. Coria, 

, 389 (Colo. 1997). As is relevant to my analysis, Rule 205.7

  establishes the following conditions for law student externs who

  work under the supervision of public defenders. They cannot

  represent clients facing felony charges. C.R.C.P. 205.7(2)(a)(i). The

  client must consent to the student attorney’s representation.

  C.R.C.P. 205.7(2)(a)(i)(B). The consent must be made a part of the

  record in the case and brought to the court’s attention. C.R.C.P.

  205.7(2)(a)(ii). And the student attorney must be “under the

  supervision of the public defender or one of his or her deputies.”

  C.R.C.P. 205.7(2)(a)(i)(B).




                                       23
                     II.      Defendant’s Contentions

¶ 50   Defendant filed his Crim. P. 35(c) motion in May 2014. As is

  pertinent to my analysis, it raised three contentions.

¶ 51   First, he claimed that he was denied his Sixth Amendment

  right to counsel because he had been represented by a student

  attorney, not by a licensed attorney — a public defender in this case

  — when he pled guilty. Indeed, he added, the public defender was

  not even present when he entered his guilty plea.

¶ 52   Second, the assistance that he received from the student

  attorney was ineffective because the public defender had not

  adequately supervised her. He supported this claim by pointing to

  violations of Rule 205.7:

       •    the student attorney represented him on a felony charge,

            even though Rule 205.7(2)(a)(i) prevented her from doing

            so;

       •    he did not consent to the student attorney’s

            representation, even though Rule 205.7(2)(a)(i)(B)

            required such consent; and




                                      24
       •    the student attorney did not make a record during the

            plea hearing that she was a student attorney, so the

            court was not aware that she was one.

¶ 53   Third, he claimed that the student attorney was ineffective

  because she did not adequately advise him that his guilty plea to

  third degree assault would include a finding that it was a crime of

  domestic violence or that the domestic violence finding could have

  consequences in future proceedings. He added that the public

  defender had not discussed the particulars of the plea with him or

  signed the plea agreement.

¶ 54   I disagree with all three contentions. As the reader can see,

  they contain several factual assertions, including (1) the public

  defender was not present when defendant entered his guilty plea;

  and (2) the public defender did not adequately supervise the

  student attorney. The postconviction court made specific findings

  of fact concerning these two contentions. Defendant submits that

  we should disregard them. I cannot do so because the record

  supports them.




                                    25
              III.   The Postconviction Court’s Factual Findings

¶ 55   John Adams said, while arguing in defense of the British

  soldiers during the Boston Massacre trial in 1770, that “[f]acts are

  stubborn things; and whatever may be our wishes, or inclinations,

  or the dictates of our passions, they cannot alter the state of facts

  and evidence.” David McCullough, John Adams 68 (2001). The

  stubborn things in this case are the postconviction court’s factual

  findings.

¶ 56   One of these stubborn things concerned a handwritten

  notation of a public defender’s name on something called the trial

  court’s “minutes.” These minutes contained both the student

  attorney’s name and the public defender’s name. The

  postconviction court found that the notation in the minutes meant

  that the public defender and the student attorney had both been

  present, representing defendant, during the plea hearing.

¶ 57   But defendant claims that “it appears” that the public

  defender’s name “was added at a later time,” after the student

  attorney’s name. This suggests, defendant continues, that the trial

  court wrote the public defender’s name on the minutes during the

  sentencing hearing, not during the plea hearing. Defendant


                                      26
  supports this claim by pointing out that the public defender’s name

  was “written at an angle” after the student attorney’s name.

¶ 58   The other stubborn thing involved the postconviction court’s

  finding that the student attorney was adequately supervised.

  Defendant claims that the record contradicts this finding.

¶ 59   This is all very interesting. But defendant’s contentions about

  the postconviction court’s factual findings arise too late in the

  process because they are directed to the wrong audience. We

  review a postconviction court’s decision to deny a Crim. P. 35(c)

  motion de novo, but we defer to the court’s factual findings if the

  record supports them. Dunlap v. People, 

, 1063 (Colo.

  2007). In other words, we are an appellate court, and we cannot

  find facts. People v. A.W., 

, 845 (Colo. 1999). This

  proposition is so fundamental that our supreme court has

  described it as “axiomatic.” Gebhardt v. Gebhardt, 

,

  30, 

, 1050 (1979).

¶ 60   Rather, it was the postconviction court’s job in this case to

  find the facts. If defendant’s contention had any force, it was up to

  the postconviction court to recognize it. “The empirical component

  of . . . fact finding[] is the basic responsibility of the trial court,


                                       27
  involving as it does a weighing of evidence and an assessment of

  credibility.” People v. Pearson, 

, 786 (Colo. 1986)

  (Quinn, C.J., dissenting). “[A]ppellate courts are not to decide

  factual questions de novo, reversing any findings they would have

  made differently.” Maine v. Taylor, 

, 145 (1986).

¶ 61   We will “set aside a trial court’s factual findings only when

  they are so clearly erroneous as to find no support in the record.”

  People v. Beauvais, 

, ¶ 22. “Where there are two

  permissible views of the evidence, the factfinder’s choice between

  them cannot be clearly erroneous.” Anderson v. City of Bessemer

  City, 

, 574 (1985). “This is so even when the [trial]

  court’s findings do not rest on credibility determinations, but are

  based instead on physical or documentary evidence or inferences

  from other facts.” 

the [trial] court’s account of the

  evidence is plausible in light of the record viewed in its entirety, the

  court of appeals may not reverse it.” 

¶ 62   According to the opposing views of defendant and the

  prosecution, there are two permissible ways to view the evidence in

  this case. On the one hand, the postconviction court could have

  found, as defendant suggests, that the notation of the public


                                     28
  defender’s name on the minutes occurred after the plea hearing and

  that the student attorney had not been adequately supervised. On

  the other hand, it could have found, as it ultimately did, that the

  notation meant that the public defender was present during the

  plea hearing and that the student attorney had been adequately

  supervised.

¶ 63   Does the record support the postconviction court’s factual

  findings that the public defender attended the plea hearing and that

  he adequately supervised the student attorney? The answer to this

  question is “yes,” particularly because the court made other,

  complementary findings: (1) “public defenders represented . . .

  [d]efendant in his three cases after he dismissed private counsel”;

  (2) public defenders had appeared on defendant’s behalf “on at least

  five separate occasions”; (3) the student attorney had been “involved

  in . . . [d]efendant’s representation well before he entered his plea”;

  (4) the presentence report “identified . . . [d]efendant’s counsel” as

  both the public defender and the student attorney; and (5) the

  public defender had been “significantly involved in and primarily

  responsible for the plea negotiations that resulted in” defendant’s

  guilty plea.


                                     29
¶ 64   The postconviction court also found that the student attorney

  had been supervised during the plea hearing. More specifically, the

  court found that

             [b]ased upon [the student attorney’s] ongoing
             involvement in the county court cases and
             prior appearance with . . . [d]efendant, the
             [c]ourt does not find . . . [d]efendant’s claim
             that he only met [the student attorney] on the
             day of his sentencing to be credible. Rather,
             the [c]ourt finds that claim to be directly
             contradicted by the court files. [The student
             attorney] was involved in a supervised capacity
             with two licensed attorneys well before . . .
             [d]efendant entered a guilty plea. Court
             minutes indicate that she continued to be
             supervised at the disposition hearing by [the
             public defender], even though he did not speak
             on the record. Based on the foregoing, the
             [c]ourt concludes that . . . [d]efendant was
             adequately represented by counsel at all
             critical stages of the proceedings and that . . .
             [d]efendant’s claim does not entitle him to
             post-conviction relief.

¶ 65   Based on the interlocking nature of all of these findings, I

  conclude that they were “plausible in light of the record viewed in

  its entirety.” 

. I am therefore duty

  bound to reject defendant’s contention. See 

  “The rationale for deference to the original finder of fact is not

  limited to the superiority of the trial judge’s position to make



                                    30
  determinations of credibility.” 

“The trial judge’s major

  role is the determination of fact, and with experience in fulfilling

  that role comes expertise.” 

appellate court duplicates

  a trial court’s factfinding, the result “would very likely contribute

  only negligibly to the accuracy of fact determination at a huge cost

  in diversion of judicial resources.” 

¶ 67   Defendant implicitly asks us to ignore the postconviction

  court’s expertise. See 

This expertise includes familiarity

  with the records, including the minutes, that trial courts generate

  in the postconviction court’s judicial district. I cannot ignore the

  postconviction court’s expertise because doing so (1) would not

  further the efficacy of our review; (2) would not advance the

  factfinding ball one inch; and (3) would exact “a huge cost” by

  diverting our resources from deciding issues of law. 

¶ 68   The postconviction court evaluated the entire record, including

  the minutes, and the court placed the minutes in the context of

  other facts. Another fact finder might have found the facts to favor

  defendant, but that is not a proper contention to raise in an

  appellate court. See 

. The court found what

  it found, and the record supports what it found. So, as far as the


                                     31
  postconviction court’s factual findings are concerned, our job was

  over before it started. To paraphrase John Adams’s eloquent

  statement, whatever defendant’s wishes, or inclinations, or the

  dictates of his passions may be, they cannot now alter the

  postconviction court’s stubborn factual findings.

¶ 69   It is beyond dispute that we review a postconviction court’s

  decision to deny a Crim. P. 35(c) motion without a hearing de novo.

  See, e.g., People v. Smith, 

, ¶ 12. This means that we

  review de novo the postconviction court’s decision to deny

  defendant’s Crim. P. 35(c) motion because the record clearly

  established that defendant was not entitled to relief. People v.

  Venzor, 

, 262 (Colo. App. 2005).

¶ 70   What does the phrase “clearly established” mean in the

  context of a Crim. P. 35(c) proceeding? Neither the supreme court

  nor the court of appeals has defined this term. And it does not

  appear in Crim. P. 35(c).

¶ 71   Instead, Crim. P. 35(c)(3)(IV) states that, “[i]f the motion and

  the files and record of the case show to the satisfaction of the court

  that the defendant is not entitled to relief, the court shall enter

  written findings of fact and conclusions of law in denying the


                                     32
  motion.” (Emphasis added.) It is obvious in this case that the

  motion, the file, and the record showed, to the postconviction

  court’s satisfaction, that defendant was not entitled to relief.

¶ 72   And the phrase “clearly established” is likewise absent from

  Crim. P. 35(c)’s instructions to a postconviction court about what to

  do if its review of the motion, the file, and the record does not

  satisfy it that the defendant is not entitled to relief. In such

  circumstances, the postconviction court should serve the

  prosecution with the defendant’s motion, appoint the public

  defender, and consider the public defender’s response. Crim. P.

  35(c)(3)(V). But, even then, “the court shall grant a prompt hearing

  on the motion unless, based on the pleadings, the court finds that it

  is appropriate to enter a ruling containing written findings of fact

  and conclusions of law.” 

¶ 73   It is my view that “clearly established” refers to the quality of

  the proof in the record rather than to the simple existence of a

  disagreement about what the proof means. Certainly, some

  disagreements raise serious questions about the quality of the

  proof. But, for the reasons that I have explained above, the

  disagreement in this case does not raise such serious questions.


                                     33
¶ 74   Defendant’s Crim. P. 35(c) motion was not filed during a

  pretrial stage of the proceedings when he was still presumed to be

  innocent. And we are not considering the equivalent of an outcome-

  determinative civil motion that a litigant has filed before the merits

  of the case have been decided, such as those covered by C.R.C.P.

  12(b)(2) (lack of jurisdiction), C.R.C.P. 12(b)(5) (failure to state a

  claim), or C.R.C.P. 56 (summary judgment). Rather, this Crim. P.

  35(c) proceeding occurred after the defendant had pled guilty.

  Indeed, as our supreme court pointed out, “[i]n a Crim. P. 35(c)

  proceeding, there is a presumption of validity attaching to a

  judgment of conviction.” People v. Naranjo, 

, 325

  (Colo. 1992).

¶ 75   The focus of defendant’s contention in this case is on whether

  the record clearly established that he was not entitled to relief. I

  think that, when evaluating whether the record did so, we must, in

  the course of our de novo review, defer to the postconviction court’s

  factual findings. If not, what are those factual findings for?

  Defendant does not cite any case, and I have not found one, which

  holds that, as part of our de novo review, we should decline to defer

  to the postconviction court’s factual findings about the record.


                                      34
¶ 76   And what happens if we do not defer to those findings?

  (Remember that deferring to the factual findings does not mean

  affirming them if the record does not support them.) I think that

  puts us in the unenviable position of acting as super fact finders,

  substituting our view of the facts for the postconviction court’s view.

  As I have explained above, that is not a productive place for an

  appellate court.

               IV.   Application of the Sixth Amendment

¶ 77   Because I would defer to the postconviction court’s findings, I

  turn to answering this question: What happens when one or more

  of the conditions in Rule 205.7, which governs the practice of law

  student externs, has not been met? I think that this question leads

  me to sequential analyses, both of which involve the Sixth

  Amendment.

¶ 78   First, I must decide whether defendant’s Sixth Amendment

  right to counsel was denied. I conclude that it was not because the

  postconviction court found that the public defender was present

  when defendant pled guilty.

¶ 79   Second, I must figure out whether defendant was denied his

  right to effective assistance of counsel under the test established by


                                    35
  Strickland v. Washington, 

, 687 (1984). I conclude that

  he was not, so I agree with the postconviction court’s determination

  that defendant did not “meet his burden to satisfy the Strickland

  standard.”

                  A.    The Law of Other Jurisdictions

¶ 80   I begin my analysis by recognizing that, although the slate is

  clean in Colorado, other states have analyzed similar contentions

  about law students who represent defendants under local rules or

  statutes. When I look at these cases, I find two relevant themes.

¶ 81   One theme is that, as long as a licensed attorney is present,

  the participation of a law student in the defendant’s case who has

  not complied with the applicable rules does not deny the defendant

  the Sixth Amendment right to counsel. In re Denzel W., 

, 982 (Ill. 2010) (“The presence of the licensed attorney, who

  certainly is counsel for constitutional purposes, is not somehow

  ‘cancelled out’ by the law student’s participation, even if the law

  student has not complied with” the pertinent rules governing the

  student’s practice.); accord State v. Terrazas, 

, 1152

  (Ariz. Ct. App. 2015) (citing In re Denzel 

);

  People v. Perez, 

, 8 (Cal. 1979) (“Because defendant was


                                    36
  at all times represented by both an actively participating

  supervising attorney and a certified law student, he did have

  representation of counsel.”); Collins v. State, 

, 85 (Ind.

  Ct. App. 2014); State v. Loding, 

, 679-80 (Neb.

  2017) (holding there was no violation of the defendant’s right to

  counsel when a licensed attorney was present at all times during

  the defendant’s trial and during all interactions between the

  defendant and the student attorney).

¶ 82   The corollary to this first theme is that a defendant’s right to

  counsel is violated if the defendant is represented by an

  unsupervised and unprepared law student. Adams v. State, 

, 109 (Ind. Ct. App. 1998) (“In view of the lack of any

  meaningful supervision by an attorney . . . over [the law student’s]

  representation, and coupled with [the student’s] total lack of

  familiarity with the case, we conclude that [the defendant] was

  effectively unrepresented . . . .”) (citation omitted); Benbow v. State,

  

, 403-04 (Miss. 1993) (Because “the sponsoring

  attorney [was not] present with his intern in the courtroom” when

  the defendant entered a guilty plea, the defendant was “not

  represented by counsel . . . .”); City of Seattle v. Ratliff, 

  630, 635 (Wash. 1983) (“We hold that [the defendant] was denied

  his right to counsel because the trial court prevented [the law

  student] from attaining the status of ‘counsel’ by apparently

  preventing him from contacting his supervis[ing]” attorney.); see

  also United States v. Cronic, 

, 659 n.25 (1984) (The

  United States Supreme Court “has uniformly found constitutional

  error without any showing of prejudice [only] when counsel was

  either totally absent, or prevented from assisting the accused

  during a critical stage of the proceeding.”).

¶ 83   (I note that at least three cases from Florida’s Fourth District

  Court of Appeal have held that a violation of the law student

  practice rules was, under the facts of these cases, a sufficient basis

  to reverse a conviction. D.K. v. State, 

, 51-52 (Fla.

  Dist. Ct. App. 2004); L.R. v. State, 

, 916 (Fla. Dist.

  Ct. App. 1997); In Interest of J.H., 

, 163 (Fla. Dist.

  Ct. App. 1991). People v. Miller, 

, 709 (Cal. App.

  Dep’t Super. Ct. 1979), and the dissent in In re Denzel 

(Freeman, J., dissenting), reach similar results. I am

  not persuaded by these cases because they are contrary to the

  majority trend, to which I refer above.)


                                     38
¶ 84   The second theme is that “a supervising attorney does not

  satisfy his or her obligation . . . merely by being physically present.”

  In re Denzel 

. Courts must also apply the

  standard Strickland two-step analysis in such circumstances. Id.;

  see also Washington v. Moore, 

, 662-63 (8th Cir. 2005);

  United States v. Rimmell, 

, 286 (8th Cir. 1994); Duval v.

  State, 

, 525-26 (Fla. Dist. Ct. App. 1999); 

.

¶ 85   This second theme means that the defendant must show that

  (1) the representation was deficient because it fell below the level of

  reasonably competent assistance; and (2) the deficient

  representation was prejudicial because there was a reasonable

  probability that, but for counsel’s unprofessional errors, the result

  of the proceeding would have been different. People v. Lopez, 

, ¶ 58 (citing 

). The defendant

  must establish both of these prongs to obtain relief. Davis v.

  People, 

, 779 (Colo. 1994).

                       B.    Application of the Law

¶ 86   I initially conclude that defendant was not denied his Sixth

  Amendment right to counsel. Not only did the student attorney


                                     39
  represent him at the time of his plea, but the postconviction court

  found that the public defender was present during the plea and that

  the public defender adequately supervised the student attorney.

  See In re Denzel 

; accord 

; 

; 

; 

. As I recognized above, these were factual

  findings to which I must defer. See People v. Gardner, 

, 1266 (Colo. App. 2010).

¶ 87   Turning to defendant’s ineffective assistance of counsel claim,

  I initially disagree with the prosecution’s assertion that he did not

  raise it in the postconviction court. True, his pro se assertion was

  inartful: he was “not adequately represented by the public defender”

  because the student attorney was “not . . . an attorney at all.” But

  he also alleged that (1) he was “present[ing] questions as to whether

  . . . [the student attorney and two public defenders who represented

  him] fail[ed] to advise on complete charges” and as to whether they

  had engaged in “collective, fraudulent misrepresentation”; (2) “the

  final defense counsel [meaning the student attorney], who

  misrepresented [her] credentials through[out] negotiations, unduly

  influenced the defendant by discouraging the trial procedures based


                                    40
  on fear of an affirmative defense by way of self defense . . . .”; and

  (3) “the so-claimed public defender [the student attorney] did not

  hold a prescient apprehension during her representation of the

  defendant.”

¶ 88   These various allegations may not be a model of pleading

  clarity. But I think that they sufficiently raised an ineffective

  assistance of counsel claim. See Rael v. People, 

, ¶ 17

  (parties do not need to employ “talismanic language” to preserve a

  contention). So, like the postconviction court, I will proceed to

  address the claim’s merits.

¶ 89   Even if I assume that the student attorney’s representation fell

  below the level of reasonably competent assistance because she, or

  the public defender, violated Rule 205.7, I nonetheless conclude

  that defendant has not satisfied the prejudice prong of the

  Strickland test. See 

. This is so because he

  has not shown that there was a reasonable probability that, but for

  counsel’s unprofessional errors, the result of the proceeding would

  have been different. Lopez, ¶ 58.

¶ 90   Defendant contends that he suffered prejudice because he

  would not have pled guilty if he had known that the plea included a


                                      41
  domestic violence finding. He adds that this finding subjected him

  to greater social stigma. But the record indicates that he was aware

  that the plea would include such a finding. For example, the

  prosecution’s motion to add the third degree assault count clearly

  stated that it involved a domestic violence finding. And the written

  plea agreements for the third degree assault charge and the

  violation of a protection order charge, which defendant signed,

  stated that he was pleading guilty to a domestic violence offense.

¶ 91   Aside from pointing to the putative violations of Rule 205.7,

  defendant did not explain how those violations prejudiced him. For

  one example, although he alleged that the public defender did not

  discuss the plea disposition with him, he did not allege that the

  student attorney had misadvised him about anything besides the

  domestic violence finding.

¶ 92   Indeed, courts in other jurisdictions have held that such

  violations do not, without more, constitute prejudice for purposes of

  an ineffective assistance of counsel inquiry. See 

; 

; People v. Smith, 

, 974 (Ill. Ct. App. 2008) (concluding that the

  defendant’s lack of consent to or knowledge of representation by law


                                   42
  student during hearing on motion to suppress did not constitute

  ineffective assistance of counsel).

¶ 93   My conclusion does not mean that Rule 205.7’s requirements

  are “mere suggestions.” In re Denzel 

(quoting

  People v. Houston, 

, 34 (Ill. 2007)). As the Nebraska

  Supreme Court pointed out in Loding, “there is a disciplinary

  process established to adjudicate rule 

. And, if defendant had linked the rule violations with

  demonstrable prejudice, he could have shown that his counsel had

  been ineffective. But the simple violation of Rule 205.7 “is not the

  matter before us in this appeal.” 

  I would therefore affirm the postconviction court’s order

  denying defendant’s request for a hearing because his Crim. P. 35(c)

  motion did not state adequate factual or legal grounds for relief.

  Crim. P. 35(c)(3)(IV).




                                    43