Peo v. Carpenter

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.

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¶ 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

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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.

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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

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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

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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.

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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

no error in the court’s ruling. See Dunlap, 173 P.3d at 1061-63. It

was Carpenter’s burden at the Rule 35(c) hearing to prove that trial

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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

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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.

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• 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.