Peo v. Hill

19CA0126 Peo v Hill 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0126

Adams County District Court No. 10CR3476

Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Lee Hill, Jr.,

Defendant-Appellant.

ORDER AFFIRMED

Division V

Opinion by JUDGE RICHMAN

Harris and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-

Appellant

1

¶ 1

Defendant, Steven Lee Hill, Jr., appeals the district court’s

order denying his Crim. P. 35(c) motion for postconviction relief.

We affirm.

I. Background

¶ 2

Hill was convicted of sexual assault following a jury trial. His

conviction was affirmed on direct appeal. People v. Hill, (Colo. App.

No. 12CA1338, Nov. 6, 2014) (not published pursuant to C.A.R.

35(f)). Proceeding pro se, he filed a timely Crim. P. 35(c) motion for

postconviction relief, which was supplemented after the court

appointed counsel. The supplemented motion alleged that Hill had

received ineffective assistance of counsel both at trial and on

appeal. As is relevant to this appeal, Hill asserted that his trial

counsel gave him bad advice about exercising his right to testify at

trial and his appellate counsel failed to raise an important

argument on appeal.

¶ 3

The postconviction court summarily denied all of Hill’s claims

except for the one concerning his trial counsel’s advice about

testifying. The court then held a hearing on that claim, during

which Hill and his trial counsel testified. Ultimately, the court

denied that claim too, concluding that Hill was not credible and had

2

failed to establish that his trial counsel’s advice was “outside the

range of professionally competent assistance.”

¶ 4

On appeal, Hill asserts that he carried his burden of proof at

the hearing regarding his trial counsel’s alleged ineffectiveness and

was entitled to a hearing regarding his appellate counsel’s alleged

ineffectiveness.1 We address the issues in turn.

II. Ineffective Assistance of Trial Counsel

¶ 5

Hill first contends that he sufficiently demonstrated to the

postconviction court that his trial counsel’s advice about testifying

constituted ineffective assistance of counsel, and, therefore, the

court erred when it denied his claim and his request for a new trial.

We disagree.

A. Standard of Review

¶ 6

Ineffective assistance of counsel claims present mixed

questions of law and fact. Dunlap v. People, 173 P.3d 1054, 1063

(Colo. 2007). We defer to the postconviction court’s factual findings

1 Hill’s motion raised other claims that are not reasserted on appeal;

we deem those claims abandoned. See People v. Rodriguez, 914

P.2d 230, 249 (Colo. 1996) (a defendant’s failure to specifically

reassert on appeal claims that the postconviction court denied

constitutes a “conscious relinquishment” of those claims).

3

if they are supported by the record but review its legal conclusions

de novo. Id.

B. Applicable Law

¶ 7

A defendant in a criminal case has a constitutional right to the

effective assistance of counsel. People v. Corson, 2016 CO 33, ¶ 32.

To prevail on an ineffective assistance of counsel claim, a defendant

must demonstrate that (1) his counsel’s performance was deficient

and (2) he was prejudiced as a result. Strickland v. Washington,

466 U.S. 668, 687 (1984).

¶ 8

To establish deficient performance, a defendant needs to show

that his counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 687-88. In so doing, he must overcome a

“strong presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance.” Id. at 689.

¶ 9

To establish prejudice, a defendant needs to show that “there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id.

at 694. “Reasonable probability” means “a probability sufficient to

undermine confidence in the outcome.” Id.

4

¶ 10

If a court concludes that a defendant has failed to prove either

of the test’s prongs, it need not address the other. People v.

Washington, 2014 COA 41, ¶ 20. Further, as the trier of fact, the

postconviction court is responsible for determining the weight and

credibility to be given to witness testimony, People v. Curren, 228

P.3d 253, 258 (Colo. App. 2009), which are determinations we may

not disregard on appeal. People v. Hardin, 2016 COA 175, ¶ 43.

¶ 11

In addition to the right to counsel, a defendant in a criminal

case has a constitutional right to testify in his own defense. People

v. Curtis, 681 P.2d 504, 509-10 (Colo. 1984). One of defense

counsel’s duties is to adequately advise her clients about the right.

See People v. Naranjo, 840 P.2d 319, 323 (Colo. 1992) (explaining

that a defendant is entitled to the “full and careful advice of his

lawyer” before deciding whether to testify at trial (quoting Martinez

v. People, 173 Colo. 515, 518, 480 P.2d 843, 844 (1971))). And like

the right to counsel, the right to testify has been recognized as a

fundamental right deserving of certain procedural safeguards.

People v. Blehm, 983 P.2d 779, 786 (Colo. 1999).

¶ 12

Accordingly, a defendant may waive his right to testify, but

only if the waiver is knowing, voluntary, and intelligent. Moore v.

5

People, 2014 CO 8, ¶ 10. To ensure a valid waiver, the trial court

must provide a multi-part “Curtis advisement,” advising the

defendant that, among other things, he has a right to testify and if

he wants to testify then no one can prevent him from doing so. Id.

¶ 13

One of the purposes of a Curtis advisement is to preclude

postconviction disputes between defendant and counsel, People v.

Chavez, 853 P.2d 1149, 1153 (Colo. 1993), but disputes still arise.

This is true even when the advisement was adequate. See Moore,

¶ 22 (a complete Curtis advisement is not dispositive of whether a

defendant validly waived his right to testify).

¶ 14

At the same time, because a complete Curtis advisement

strongly suggests that a defendant’s wavier of his right to testify

was valid, a defendant who wants to challenge his waiver in the face

of an adequate advisement may introduce new evidence showing

that his waiver was not knowing, voluntary, and intelligent. Id. at

¶ 26. For example, he may put on evidence of “what [he] did or did

not understand in waiving the right, what the attorney did or did

not say; and any other pertinent circumstances relating to [his]

condition at the time of the waiver.” Id.

6

¶ 15

Advising a defendant not to testify, by itself, does not

constitute ineffective assistance of counsel. People v. Layton, 200

Colo. 59, 61-62, 612 P.2d 83, 85 (1980).

C. Analysis

¶ 16

In his motion, Hill alleged that his trial counsel was ineffective

because counsel inadequately advised him about his right to testify

at trial and then pressured him not to testify, rendering his

eventual waiver of the right both “unknowing” and “involuntary.”

(This despite the record reflecting that he received a complete Curtis

advisement from the trial court.)

¶ 17

During the hearing, Hill explained that, looking back, he

wanted to testify at trial that his sexual encounter with the victim

was consensual because “if the jury would have heard my side of

the story, I think they would have seen a bigger picture and seen

that — maybe some truth in what I was saying.” As for why he did

not testify, Hill said that his counsel, in a “very calm” manner, told

him that he should not testify “because I think you’re going to lose

the case,” and this “scared” him. On cross-examination, however,

Hill admitted he both received and understood the trial court’s

7

advisement that he (1) had the right to testify if he wanted to and

(2) could exercise the right even if his attorney did not want him to.

¶ 18

For her part, Hill’s trial counsel said that in preparation for

Hill’s trial, she discussed with him that he would have to make a

decision about whether or not to testify. Although counsel did not

recall their exact discussion, she testified that her practice at the

time was to “talk to my clients about the fact that they are the only

ones who get to make the decision to testify or not,” and “[i]t’s my

job as an attorney to be a good guide; to advise a client as to

whether they should testify or not and what the implications are.”

¶ 19

Counsel further explained that she advised Hill not to testify

partly because Hill “was a little bit foggy about what happened that

night” and had “said that he was under the influence so he couldn’t

remember everything.” This, counsel worried, would allow the

prosecution to “make hay” of the gaps in his story. Additionally,

she thought that the narrative Hill told her about the encounter

being consensual was “generally consistent” with statements he had

made to police after the incident that were going to be admitted at

trial. Last, she explained that Hill was set to go to trial in a

different case after the trial in this case, and that this case involved

8

CRE 404(b) evidence, so Hill “would be opening himself up to

statements that he would be making not only in this case but that

could potentially be used against him in the [other] case.”

¶ 20

In a written order, the postconviction court denied Hill’s

ineffective assistance of counsel claim, finding that “based upon

credibility factors,” it was “more likely [than not]” that trial counsel

adequately advised Hill about his right to testify, and concluding

that trial counsel’s advice not to testify was “objectively reasonable”

because

 Hill’s statements to police, which were played for the

jury, articulated his story of a consensual encounter;

 a prior felony conviction of Hill’s would have been

revealed to the jury had he testified;

 there was an open and unresolved case in another

jurisdiction involving similar charges and similar factual

allegations, and deciding to testify would have subjected

Hill to cross-examination in that case; and

 Hill’s recollection of counsel’s performance was not clear.

¶ 21

On appeal, Hill contends that the postconviction court erred

because his trial counsel’s advice about testifying was not

9

“objectively reasonable,” as counsel “had no strategic reason not to

call him,” his testimony “could not have hurt his case,” and

“[w]ithout his testimony, the jury had no choice but to convict him.”

¶ 22

But these arguments are unpersuasive because we agree with

the postconviction court that Hill’s trial counsel expressed

legitimate reasons as to why she advised Hill not to testify, and the

postconviction court credited her, and not Hill’s, testimony.

¶ 23

What is more, Hill admitted that when he waived his right to

testify at trial, he understood that he had the right and could testify

even if his counsel did not want him to. Accordingly, accepting that

Hill was “scared” by the prospect of losing his case, and even

assuming that his trial counsel told him that he “would” lose if he

testified, the evidence demonstrates that Hill’s waiver was knowing,

voluntary, and intelligent, and was not the product of coercion or of

ineffective assistance of counsel.

III. Ineffective Assistance of Appellate Counsel

¶ 24

Hill next contends that the postconviction court erred when it

denied him a hearing regarding his appellate counsel’s alleged

ineffectiveness. Again, we disagree.

10

A. Standard of Review

¶ 25

A district court’s denial of a Crim. P. 35(c) motion without a

hearing is reviewed de novo. People v. Higgins, 2017 COA 57, ¶ 11.

B. Applicable Law

¶ 26

Ordinarily, a defendant is entitled to an evidentiary hearing on

the claims contained in his Crim. P. 35(c) motion. See People v.

Simpson, 69 P.3d 79, 81 (Colo. 2003) (“To warrant a hearing, a

defendant need only assert facts that, if true, would provide a basis

for relief.”). Still, a court may deny a Crim. P. 35(c) motion without

a hearing if “the motion, the files, and the record clearly establish

that the allegations in the motion lack merit and do not entitle the

defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17; see also

Crim. P. 35(c)(3)(IV). Bare and conclusory allegations are, likewise,

insufficient. People v. Phipps, 2016 COA 190M, ¶ 18.

¶ 27

The test for determining whether a defendant has received

ineffective assistance of appellate counsel is generally the same as

the test for whether he has received ineffective assistance of trial

counsel. People v. Ray, 2015 COA 92, ¶ 13. Application of the test

will vary, however, depending on the type of claim presented. Id.

11

¶ 28

As is relevant to this case, when the claim is that counsel’s

performance was deficient because she overlooked a meritorious

argument on appeal, the defendant must show that the ignored

argument was “clearly stronger” than those presented. People v.

Trujillo, 169 P.3d 235, 238 (Colo. App. 2007) (quoting Ellis v.

Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002)). It is not enough to

show that the ignored argument was nonfrivolous. Id.; People v.

Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (rejecting a claim that

appellate counsel was ineffective for failing to raise all available

issues). And to demonstrate prejudice, the defendant must show a

reasonable probability that, but for counsel’s errors, he would have

prevailed on appeal. People v. Long, 126 P.3d 284, 286 (Colo. App.

2005).

C. Analysis

¶ 29

In his motion, Hill alleged that his appellate counsel was

ineffective because although counsel raised two issues on appeal —

that Hill’s statements to the police should have been suppressed

and that the CRE 404(b) evidence should not have been admitted —

counsel failed to raise an even stronger one: prosecutorial

misconduct.

12

¶ 30

Specifically, Hill asserted that his counsel should have argued

that a prosecutor made “improper and prejudicial” statements

during closing arguments when the prosecutor told the jury: “I

suspect that in the next few minutes you will hear discussion

alluding to credibility issues of [the victim], or allude that this was

maybe a chance encounter, one-night stand, or act of prostitution.

I am asking you don’t allow the defendant to further denigrate,

humiliate [the victim].”2

¶ 31

According to Hill’s motion, the statements were improper

because it is “reasonably likely” that they “inflame[d] the passions of

the jury to reach a decision based upon emotions and bias, instead

of the evidence in the record.” The motion also argued that had the

issue been raised on direct appeal, there is a “reasonable

probability” that a division of this court would have determined that

the statements were improper and, therefore, “the outcome of the

proceedings would have been different.”

2 Hill objected to the statements at trial, but the court overruled his

objection.

13

¶ 32

In its order summarily denying Hill’s claim, the postconviction

court explained that, in its opinion, the statements, while arguably

improper, were at most harmless, and as such, the court could not

conclude that Hill’s appellate counsel ignored an issue that was

“clearly stronger” than the two that were presented.

¶ 33

On appeal, Hill contends that the postconviction court erred

because the allegations in his motion were facially sufficient to

warrant a hearing on his claim. We disagree because although the

motion explained why Hill thinks his prosecutorial misconduct

argument is a good one, neither it nor the reply filed in support

thereof alleged how the argument was clearly stronger than the

arguments that appellate counsel did make. In fact, there is no

discussion whatsoever comparing the relative strength of the

prosecutorial misconduct argument against either the suppression

argument or the Rule 404(b) argument. And the bare allegation

that Hill’s appellate counsel failed to raise a potentially meritorious

argument “does not overcome the presumption that appellate

counsel’s choice [to assert other arguments] was the result of a

strategic election.” Trujillo, 169 P.3d at 239.

14

¶ 34

Thus, we agree with the postconviction court’s decision to

deny Hill’s claim without a hearing. See Taylor v. Taylor, 2016 COA

100, ¶ 31 (we may affirm on any ground supported by the record).

IV. Conclusion

¶ 35

The order is affirmed.

JUDGE HARRIS and JUDGE GOMEZ concur.