People v. Palermo

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
March 12, 2026

2026COA12

No. 24CA0131, People v. Palermo — Criminal Law — Court
Appointed Counsel — Request for Substitute Counsel —
Bergerud Hearing

A division of the court of appeals considers whether a hearing

on a criminal defendant’s request for substitute counsel under

People v. Bergerud, 223 P.3d 686 (Colo. 2010) (Bergerud hearing),

must be heard by a judge other than the one presiding over the

case. The division concludes that nothing in Bergerud requires as

much and that the judge presiding over the case may, but is not

required to, oversee a Bergerud hearing.

The division thus rejects the defendant’s contentions that the

district court erred by having the same judge preside over the

Bergerud hearing and the sentencing hearing, failing to advise him

that he risked waiving his attorney-client privilege during the

Bergerud hearing, and relying on certain information in imposing
his sentence. The division also declines to consider the defendant’s

challenge to the validity of his plea agreement.

Accordingly, the division affirms the sentence imposed by the

district court.
COLORADO COURT OF APPEALS 2026COA12

Court of Appeals No. 24CA0131
Huerfano County District Court Nos. 22CR44 & 22CR45
Honorable J. Clay McKisson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Palermo,

Defendant-Appellant.

SENTENCE AFFIRMED

Division VII
Opinion by JUDGE MOULTRIE
Tow and Lum, JJ., concur

Announced March 12, 2026

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Anthony Palermo, appeals the sentence imposed

after he pleaded guilty to harassment and assault. We affirm.

I. Background

¶2 In 2023, Palermo entered into a plea agreement to resolve

charges from two cases in which he was charged with stalking,

harassment, sexual assault on a child by one in a position of trust,

and sexual assault. In exchange for dismissal of these charges,

Palermo pleaded guilty to harassment and an amended count of

second degree assault, a class 4 felony. Following a hearing (plea

hearing), the district court accepted Palermo’s guilty plea.

¶3 Three months later, the court held a hearing on Palermo’s

asserted conflict with his court-appointed counsel (Bergerud1

hearing), immediately followed by a sentencing hearing. At the

Bergerud hearing, the court determined that no conflict existed

between Palermo and his counsel and explained that Palermo could

either continue with his existing, court-appointed counsel or

1 A court holds a Bergerud hearing when a defendant objects to

court-appointed counsel without providing a sufficiently detailed
motion on which the court can base its decision whether to appoint
substitute counsel. See People v. Bergerud, 223 P.3d 686, 694-95
(Colo. 2010).

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proceed without counsel. Palermo chose to continue with counsel

for sentencing. During the sentencing hearing, the court, noting

Palermo’s criminal history, including a previous sexual offense

involving a minor, sentenced Palermo to fifteen years in prison for

second degree assault and a concurrent four-month jail term for

harassment.

¶4 Palermo contends that his sentence should be reversed

because the district court erred by (1) holding the Bergerud hearing

without having a different judge preside over the hearing and

without advising him that he was waiving his attorney-client

privilege; (2) sentencing him without affirming that he understood

and agreed to the presumptive range and crime of conviction

implicated by his plea agreement; and (3) relying on insufficient and

inaccurate information in imposing the sentence. We address each

contention in turn.

II. Bergerud Hearing

A. Additional Facts

¶5 Two months after Palermo entered his plea, he filed a motion

asserting that he had a conflict with his counsel and wanted to fire

2
her. Palermo also said that his counsel coerced him into accepting

an inappropriate plea agreement.

¶6 At the Bergerud hearing, outside the presence of the

prosecution and the public, the district court heard argument from

Palermo and his counsel on Palermo’s motion. The court asked

Palermo if he was requesting a new attorney. Palermo said he

didn’t feel like his counsel’s representation had been effective or

that he had “ever been given an opportunity to even voice [his] side

of the story.” He asked the court to allow him to “defend [him]self

pro se and afford [him] a legal team . . . to advise him.”

¶7 Defense counsel said that she had been in consistent

communication with Palermo and had previously discussed the plea

agreement with him, but Palermo had only told her that day that he

didn’t feel he’d received enough time to consider the plea

agreement. Counsel said she would have requested a continuance

if Palermo had informed her that he wasn’t ready to accept the plea.

¶8 The court found that Palermo failed to establish good cause for

a substitution of counsel and that Palermo wasn’t “coerced in any

way” to enter into the plea agreement. In making its determination,

the court noted that Palermo didn’t have any questions at the plea

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hearing, said that he had enough time to review the plea agreement,

agreed that he wanted to continue with his guilty plea, and entered

his plea voluntarily.

¶9 After the court indicated it would give him a different

advisement if he wanted to represent himself at the sentencing

hearing, Palermo chose to continue with his court-appointed

counsel.

B. Applicable Law and Standard of Review

¶ 10 A criminal defendant has a constitutional right to have an

impartial judge at all stages of the proceedings. See Sanders v.

People, 2024 CO 33, ¶¶ 27-28. Thus, a judge may not preside over

a criminal proceeding if he is actually biased — that is, the judge is

“interested or prejudiced with respect to the case,” § 16-6-201(1)(d),

C.R.S. 2025, such that, “in all probability,” he will be unable to

“deal[] fairly with a party,” People v. Julien, 47 P.3d 1194, 1197

(Colo. 2002). And even if he harbors no actual bias, a judge should

recuse himself from any case “in which the judge’s impartiality

might reasonably be questioned.” People in Interest of A.G.,

262 P.3d 646, 650 (Colo. 2011) (quoting C.J.C. 2.11(A)).

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¶ 11 However, “[u]nless a reasonable person could infer that the

judge would in all probability be prejudiced against [a party], the

judge’s duty is to sit on the case.” Smith v. Dist. Ct., 629 P.2d 1055,

1056 (Colo. 1981). A reasonable person is “well-informed,

thoughtful and objective” rather than “hypersensitive, cynical, and

suspicious.” People v. Owens, 219 P.3d 379, 386 (Colo. App. 2009)

(citation omitted).

¶ 12 Whether a district court judge had a duty to recuse himself is

a question of law that we review de novo. Richardson v. People,

2020 CO 46, ¶ 22.

¶ 13 A district court must establish that a defendant has a

well-founded reason for believing that court-appointed counsel can’t

or won’t represent him before appointing substitute counsel.

People v. Bergerud, 223 P.3d 686, 694 (Colo. 2010). At a Bergerud

hearing, the court must receive information from both the

defendant and the attorney about the nature of their conflict to

allow the district court to determine whether the defendant is

entitled to substitute counsel. Id. at 694-95. In making this

inquiry, the court may examine a defendant and his counsel’s

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disagreement “without infringing on the attorney-client privilege.”

Id. at 694.

C. Analysis

1. The Court Didn’t Err By Failing to Have a Different District
Court Judge Preside Over the Bergerud Hearing

¶ 14 Palermo argues that a Bergerud hearing “should generally be

held in front of a different, neutral judge.” We aren’t persuaded.

¶ 15 In Bergerud, the supreme court established a four-factor test

to guide district court and appellate inquiry into whether substitute

counsel is warranted.2 223 P.3d at 695. The supreme court did

not, however, address whether a judge other than the one presiding

over the case should conduct the hearing on a defendant’s request

for substitute counsel. But it’s worth noting that in Bergerud the

same judge who was presiding over the underlying case oversaw the

hearing on the defendant’s request for substitute counsel. See id.

at 692. The supreme court neither suggested that this was

2 The Bergerud factors are (1) the timeliness of the defendant’s

request; (2) whether the defendant substantially and unreasonably
contributed to the underlying conflict; (3) whether the attorney-
client conflict was so great that it resulted in a total lack of
communication or otherwise prevented an adequate defense; and
(4) the adequacy of the court’s inquiry into the defendant’s
complaint. Bergerud, 223 P.3d at 695.

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improper nor instructed that a different judge handle the matter on

remand. See id. at 705-07. Thus, despite Palermo’s assertion

otherwise, Bergerud doesn’t require that a different judge hear a

defendant’s request for substitute counsel.3

¶ 16 The other cases Palermo cites in support of his argument,

People v. Mills, 163 P.3d 1129 (Colo. 2007), and People v. Delgadillo,

2012 COA 33, are likewise inapposite. Mills discussed how a

district court should proceed when postconviction counsel — a

public defender — requests to withdraw due to an alleged conflict

arising from a different public defender’s earlier representation of

the same defendant. 163 P.3d at 1132-35. Delgadillo concerned a

court’s sua sponte, midtrial decision to hold “a proceeding in

camera for the prosecutor to question defense counsel” about

counsel’s advice to the defendant without the defendant’s waiver of

his attorney-client privilege. Delgadillo, ¶¶ 2-3, 11-12. Moreover,

neither case stands for the general proposition — asserted by

3 We’re aware that in some Colorado judicial districts Bergerud

hearings are routinely conducted by a judge other than the trial
judge. Nothing in Bergerud prohibits this, and we don’t mean to
suggest that a Bergerud hearing must be heard by the judge
presiding over the case.

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Palermo — that when a concern arises implicating a defendant’s

attorney-client privilege with his court-appointed counsel, the

substance of the concern must be heard by a judge other than the

one assigned to the case. Cf. People v. Schultheis, 638 P.2d 8, 14

(Colo. 1981) (when counsel asks to withdraw due to an alleged

irreconcilable conflict, “counsel should proceed with a request for a

record out of the presence of the trial judge and the prosecutor if

the court denies the motion to withdraw”).

¶ 17 Palermo argues that a different judge should have handled his

Bergerud hearing because his reaction to the judge’s decision not to

appoint him new counsel “may have tainted the judge’s view of him”

for purposes of sentencing. But, generally, what a judge learns in

their judicial capacity alone isn’t sufficient to support a finding of

bias that requires recusal. See Smith, 629 P.2d at 1057; Sanders,

¶¶ 32, 42 (a remote and insubstantial risk of bias doesn’t mandate

recusal; rather, recusal is required only when a judge is actually

biased or there is an objectively reasonable probability that the

judge will be unable to deal fairly with a party under the

circumstances). And, apart from overseeing the Bergerud hearing,

Palermo hasn’t put forth any other reasons the assigned judge

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might have been biased. See Richardson, ¶ 37 (rejecting the

defendant’s argument that a judge should have recused himself

when “nothing in the record reasonably call[ed] into question the

judge’s impartiality toward the parties”).

¶ 18 Accordingly, we conclude that it wasn’t error for the assigned

judge to preside over the Bergerud hearing.

2. The Court Didn’t Err by Failing to Advise Palermo About
Waiving His Attorney-Client Privilege

¶ 19 Palermo also argues that the district court erred by failing to

advise him that he risked waiving his attorney-client privilege

during the Bergerud hearing. We disagree.

¶ 20 The client holds the attorney-client privilege, which protects

communications related to legal advice between an attorney and

their client. Delgadillo, ¶ 15. However, “a request for new counsel

necessarily implies a limited waiver of the attorney-client privilege”

because an attorney’s obligations “must yield to the court’s need to

investigate the nature of the attorney-client dispute.” Bergerud,

223 P.3d at 703. And Bergerud allows a court to “inquire as to

pertinent details of a disagreement between a defendant and

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counsel without infringing on the attorney-client privilege.” Id. at 694

(emphasis added).

¶ 21 Because Palermo’s request for new counsel, by its nature,

implied a limited waiver of his attorney-client privilege, the court

didn’t err by not advising him of this waiver. See id. at 703; see

also People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006) (noting that a

defendant may impliedly waive the attorney-client privilege by

placing at issue the “propriety of advice given” by their attorney).

III. Plea Agreement

A. Additional Facts

¶ 22 Paragraph two of Palermo’s written plea agreement stated that

he would plead guilty to an amended count of “[a]ssault in the

second degree,” but in the same sentence, it provided a citation to

section 18-3-402(1)(a), C.R.S. 2025, the sexual assault statute.

Paragraph five of the agreement listed the elements of second

degree assault with a deadly weapon.4 See § 18-3-203(1)(b), C.R.S.

2025. Paragraph three of the plea agreement, entitled “Terms of the

4 Palermo’s defense counsel noted that this was a “plea of

convenience.” There is no indication that a deadly weapon was
involved in the factual circumstances underlying the offense.

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Plea Agreement,” stated that the parties agreed to a sexual factual

basis for the plea, along with a sentencing range of five to sixteen

years in the custody of the Department of Corrections (DOC). Then,

in paragraph four, the agreement explained that a class 4 felony

was punishable by a term of two to twelve years of imprisonment

depending on mitigating or aggravating circumstances.

B. Analysis

¶ 23 Palermo contends that the district court erred by sentencing

him without affirming that he understood and agreed to the plea

because the written plea agreement indicated he was pleading guilty

to second degree assault with a deadly weapon but cited the statute

for sexual assault. He notes that while both crimes are class 4

felonies, they have different sentencing ranges. Palermo argues

that, collectively, the ambiguity of the written agreement, his mental

health, his asserted conflict with his attorney, and the lack of

discussion at the plea hearing regarding the elements of the crime

to which he was pleading guilty created a situation that required

the court to affirm “that he understood and agreed to the crime of

conviction and sentencing range before proceeding to sentencing.”

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¶ 24 The People contend that we shouldn’t consider Palermo’s

argument because it doesn’t challenge his sentence but rather

implicates the validity of his plea. We agree with the People.

¶ 25 A defendant who challenges his guilty plea by asserting that

the plea agreement was entered into unknowingly or unintelligently,

or that plea counsel provided ineffective assistance, implicates the

constitutionality of his conviction. See Sanchez-Martinez v. People,

250 P.3d 1248, 1255 (Colo. 2011) (“[T]o be constitutionally valid, a

defendant must enter his guilty plea knowingly, voluntarily, and

intelligently.”); Davis v. People, 871 P.2d 769, 772 (Colo. 1994) (a

criminal defendant is constitutionally entitled to the effective

assistance of counsel).

¶ 26 A defendant who, before sentencing, challenges the

constitutionality of his guilty plea may seek to withdraw the plea

under Crim. P. 32(d). Kazadi v. People, 2012 CO 73, ¶ 14.

However, after sentencing, a defendant must file a Crim. P. 35(c)

motion to withdraw the plea. See Crim. P. 35(c)(2)(I). This is so

because postconviction review of whether a defendant validly

waived a constitutional right usually requires consideration of facts

brought forward by the defendant that aren’t contained in the direct

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appeal record. See Moore v. People, 2014 CO 8, ¶ 17

(“Post-conviction review focuses not only on the sufficiency of the

advisement itself, but also on the actual knowing, voluntary, and

intelligent nature of a defendant’s waiver.”). Accordingly, because

Palermo’s challenge to his sentence is fundamentally a challenge to

the constitutional validity of his guilty plea, it’s not properly before

us in this direct appeal, and we decline to consider it further. See

People v. Kirk, 221 P.3d 63, 64-65 (Colo. App. 2009) (because the

defendant’s post-sentencing request to withdraw his guilty plea

required resolution of factual issues, the defendant was required to

raise his request in a Crim. P. 35(c) motion rather than on direct

appeal).

IV. Sufficiency and Accuracy of Sentencing Evidence

¶ 27 Palermo contends that the district court erred by relying on

insufficient and inaccurate information in imposing his sentence.

We discern no abuse of discretion.

A. Additional Facts

¶ 28 At the sentencing hearing, both the victim and her mother

said that Palermo forced himself on the victim more than once, and

they requested the maximum sentence. On the other hand,

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Palermo’s mother said that the victim’s mother told her that the

victim was a “willing participant” in having sex with Palermo. The

court responded that it was “not going to entertain anything that is

placing blame” on the victim.

¶ 29 Before Palermo addressed the court, the court indicated that it

would put “some limitation” on Palermo’s statements by “not

allow[ing] [Palermo] to use [his statements] as an opportunity to

further victimize the family or . . . place any blame on the victim.”

¶ 30 Palermo said that he was angry because the way that the

victim and her family “portrayed the situation” was “false” and “not

true.” Palermo said that he didn’t physically attack the victim or

force himself on her and that they had a consensual relationship.

Thus, he requested the minimum sentence in the range.

B. Applicable Law and Standard of Review

¶ 31 We will uphold a sentence if it is (1) within the range required

by law; (2) based on appropriate considerations as reflected in the

record; and (3) factually supported by the circumstances of the

case. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990).

¶ 32 We review a sentencing decision for an abuse of discretion.

See People v. Torrez, 2013 COA 37, ¶ 71. A district court has broad

14
discretion in sentencing when, as here, it imposes a sentence within

the statutory range. People v. Rice, 606 P.2d 1300, 1302-03 (Colo.

1980). In exercising its discretion, the court should consider,

among other things, the nature of the offense; the offender’s

character, rehabilitative potential, and criminal history; any

aggravating or mitigating circumstances; and the protection of the

public. Torrez, ¶ 73. However, the court may find certain factors

more compelling than others and may conclude that “the

circumstances of the crime alone” justify a harsh sentence. Id. at

¶ 74.

¶ 33 We won’t reverse a sentencing decision unless the court

imposed a sentence that is manifestly arbitrary, unreasonable, or

unfair or is based on an erroneous construction of the law.

People v. Herrera, 2014 COA 20, ¶ 16.

C. Analysis

¶ 34 As applicable here, the mandatory sentencing range for second

degree assault with a deadly weapon is five to sixteen years.

§ 18-3-203(2)(b); § 18-1.3-406(2)(a)(I)(A), (2)(a)(II)(C), C.R.S. 2025

(defining second degree assault with a deadly weapon as a crime of

violence); § 18-1.3-401(1)(a)(V.5)(A), (8)(a)(I), (10)(a), (10)(b)(XII),

15
C.R.S. 2025 (outlining the presumptive sentencing range for class 4

felonies and aggravated sentencing ranges for crimes of violence

and extraordinary risk crimes).

¶ 35 Although the court sentenced Palermo within the statutory

range, he contends that the court improperly considered statements

from the victim and her mother that Palermo forced himself on the

victim while precluding Palermo and his mother from introducing

rebuttal information about the victim’s consent.

¶ 36 But, as indicated in the record, the court explicitly

acknowledged testimony from Palermo’s mother that the victim’s

mother had previously said that the victim consented to a sexual

relationship with Palermo. And the court permitted Palermo to

point out discrepancies in the victim’s account of events, his

perception that he and the victim had a consensual relationship,

and his position that he didn’t physically attack or force himself on

the victim. Additionally, the court noted that it had reviewed the

presentence investigation report and the sex offense-specific

evaluation, both of which provided Palermo’s version of events,

including his assertion that his relationship with the victim was

consensual. The record thus refutes Palermo’s assertion that he

16
and his mother were precluded from introducing evidence of

consent at the sentencing hearing. And Palermo fails to explain

how the court otherwise relied on inaccurate information in

imposing his sentence.

¶ 37 After considering all of the above information, the court

indicated it had concerns about Palermo’s four prior felony

convictions, including a prior conviction for a sexual offense

involving a minor, and lack of accountability for his actions in this

case. Palermo doesn’t challenge the appropriateness of these other

sentencing considerations. See Torrez, ¶ 73. In any event, the

court wasn’t required to discuss each factor relevant to its decision;

it was only required to provide a reasonable explanation for its

sentencing decision. See id. at ¶ 74; see also People v. Myers, 45

P.3d 756, 757 (Colo. App. 2001) (“The fact that a sentencing court

finds aggravating factors to be more compelling than mitigating

factors does not constitute an abuse of discretion or indicate that

the trial court failed to consider evidence of mitigation.”).

¶ 38 Because Palermo’s sentence falls within the statutory range,

was based on appropriate considerations, and is supported by the

17
circumstances of the case, we won’t substitute our judgment for

that of the district court. See Fuller, 791 P.2d at 708.

V. Disposition

¶ 39 The sentence is affirmed.

JUDGE TOW and JUDGE LUM concur.

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