People v. Anthony Robert Smith

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
May 26, 2022

2022COA56

No. 19CA2359, People v. Smith — Attorneys and Clients —
Ineffective Assistance of Counsel; Criminal Law —
Postconviction Remedies — Postconviction Counsel — Waiver
of Claims

As a matter of first impression in a criminal postconviction

proceeding under Crim. P. 35(c), a division of the Court of Appeals

holds, consistent with Dooly v. People, 2013 CO 34, that

postconviction counsel does not waive claims raised in a pro se

defendant’s postconviction motion by omitting them from a

supplemental motion. Applying this holding here, the division

concludes that postconviction counsel’s failure to reassert the

defendant’s pro se claims in her supplemental motion did not waive

those claims. Accordingly, the portion of the order finding a waiver

is reversed and the case is remanded for the trial court to make

findings on the remaining pro se claims.
COLORADO COURT OF APPEALS 2022COA56

Court of Appeals No. 19CA2359
Larimer County District Court No. 11CR1418
Honorable Gregory M. Lammons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Robert Smith,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Fox and Gomez, JJ., concur

Announced May 26, 2022

Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne R. Teodorovic, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Anthony Robert Smith appeals the postconviction court’s order

denying his Crim. P. 35(c) motions without a hearing. He argues

that the court erroneously found his pro se claims waived when

appointed counsel omitted them from her supplemental

postconviction motion. He also asserts that his claims warranted a

hearing. As a matter of first impression, we hold that appointed

counsel does not waive claims in a pro se motion by omitting them

from a supplemental motion. Therefore, we remand the case for the

postconviction court to consider the issues raised in Smith’s pro se

Crim. P. 35(c) motion and to determine whether a hearing is

warranted. However, we discern no error in the court’s ruling on

Smith’s supplemental motion and affirm that portion of the order.

I. Background

¶2 S.F., an eight-year-old girl, left her home with her mother

amidst her parents’ divorce proceedings. They moved to Fort

Collins to stay with her aunt (A.W.), her aunt’s boyfriend (Smith),

and her cousin (H.W.), a nine-year-old girl. Shortly thereafter, S.F.

told her mother that she had seen Smith walk around the house

naked from the waist down. She also said Smith had taken off her

and H.W.’s pants and had “walked his fingers” up their legs towards

1
their private areas. He also made them watch pornography on the

internet.

¶3 After the police were contacted, S.F. underwent a short

interview and a forensic interview. She repeated what she had told

her mother. But in the forensic interview, she added that Smith

slapped her face to make her watch the pornography. S.F. also told

the interviewer that Smith had removed her pants and underwear,

rubbed his hand on the outside of her private area, and touched

S.F.’s and H.W.’s breasts.

¶4 Police executed a search warrant at Smith’s home. They

seized a video camera containing a deleted video. The video showed

S.F. and H.W. asking Smith to show them the pornography website

he was watching earlier. Smith ignored the girls for a while but

eventually loaded the website on his laptop and let the girls watch.

¶5 The prosecution charged Smith with one count of sexual

assault on a child-position of trust-pattern of sexual abuse, three

counts of sexual assault on a child-position of trust, and four

counts of promotion of obscenity to a minor. A jury convicted him

of all charges. A division of this court affirmed his convictions in

2
People v. Smith, (Colo. App. No. 14CA0085, Dec. 31, 2015) (not

published pursuant to C.A.R. 35(f)).

¶6 In 2018, Smith filed a pro se Crim. P. 35(c) motion asserting

twelve claims related to ineffective assistance of counsel, newly

discovered evidence, and prosecutorial misconduct. Smith asked

for court-appointed counsel and a hearing. The postconviction

court appointed counsel, who then filed a supplemental Crim. P.

35(c) motion that expanded on three of Smith’s original claims and

clarified that Smith challenged only the effectiveness of his prior

trial counsel.1 The prosecution filed a response and the court

issued a written order addressing and denying the claims raised in

counsel’s supplemental motion without a hearing.

¶7 In footnote one of its order, the postconviction court found the

remaining issues raised in Smith’s pro se petition waived because

counsel had not reasserted them in the supplemental motion and

the prosecution had not responded to them. In support, it cited

People v. Breaman, 939 P.2d 1348, 1351 (Colo. 1997)

1 Smith was represented by several different attorneys throughout
the trial court proceedings.

3
(court-appointed public defenders do not have a duty to prosecute

meritless postconviction claims).

II. Waiver

¶8 Smith contends that the postconviction court erred in finding

that he waived his pro se claims by not reasserting them in

counsel’s supplemental motion. Because the supplemental motion

does not evidence an intent to waive or abandon the remaining pro

se claims, we agree.

A. Standard of Review and Law

¶9 We review a postconviction court’s decision to deny a Crim. P.

35(c) motion without a hearing de novo. People v. Cali, 2020 CO 20,

¶ 14; People v. Castillo, 2022 COA 20, ¶ 15.

¶ 10 When asserting the ineffective assistance of trial or appellate

counsel, a defendant must show (1) “that counsel’s performance

was deficient” and (2) “that the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see

also People v. Valdez, 789 P.2d 406, 410 (Colo. 1990) (the test for

ineffective assistance of appellate counsel is whether counsel’s

performance was deficient and prejudiced the defendant). Courts

must indulge a strong presumption that counsel’s conduct falls

4
within the wide range of reasonable professional assistance and

make “every effort . . . to eliminate the distorting effects of

hindsight.” Strickland, 466 U.S. at 689.

¶ 11 A court may deny a Crim. P. 35(c) motion without a hearing

only if the motion, files, and record clearly establish that the

defendant’s allegations are without merit and do not warrant

postconviction relief. Ardolino v. People, 69 P.3d 73, 77 (Colo.

2003). The motion may be denied without a hearing only if the

record establishes that the defendant’s allegations, even if true,

would fail to establish either the deficient performance or prejudice

prongs of the Strickland test. Id.

¶ 12 To establish deficient performance, a defendant must prove

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

reasonableness.” Strickland, 466 U.S. at 688. “The prejudice

component requires the defendant to prove that ‘there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” People v.

Garcia, 815 P.2d 937, 941 (Colo. 1991) (quoting Strickland, 466

U.S. at 694).

5
¶ 13 As relevant here, Crim. P. 35(c)(3)(I) and (II) require a pro se

defendant to initiate the postconviction review process by filing a

timely and compliant pro se motion. If a defendant requests and

the court appoints counsel, then counsel may request additional

time to investigate and “add any claims” counsel believes have

merit. Crim. P. 35(c)(3)(V). While court-appointed counsel has no

duty to prosecute meritless postconviction relief claims, Breaman,

939 P.2d at 1351, counsel may not seek dismissal of a defendant’s

claims against the defendant’s wishes, regardless of counsel’s belief

in the claims’ merits. Dooly v. People, 2013 CO 34, ¶ 7. Indeed, “a

district court is not authorized to grant an attorney’s motion to

dismiss his client’s application for postconviction relief without his

client’s informed consent.” Id. at ¶ 10. Moreover, the

postconviction court has an independent obligation to make

findings of fact and conclusions of law regarding Crim. P. 35(c)

claims, “irrespective of [an] attorney’s conclusions or analysis.”

Breaman, 939 P.2d at 1352.

¶ 14 Because a defendant’s right to postconviction review is

statutory, “a waiver of the right need only be voluntary.” People v.

Wiedemer, 852 P.2d 424, 438 (Colo. 1993). A voluntary decision is

6
one made intentionally, freely, deliberately, and without coercion.

People v. Martinez, 70 P.3d 474, 478 (Colo. 2003); Cardman v.

People, 2019 CO 73, ¶ 21. And, “we must indulge ‘every reasonable

presumption against waiver,’” People v. Rediger, 2018 CO 32, ¶ 46

(citation omitted), even for a “nonfundamental right,” Phillips v.

People, 2019 CO 72, ¶ 21.

B. Analysis

¶ 15 We conclude that Smith did not waive his pro se claims for two

reasons. First, to the extent the postconviction court found a

waiver based on counsel’s failure to reassert the pro se claims in

her supplemental motion, we disagree. Counsel titled her motion

“Supplemental Motion For Post-Conviction Relief.” The plain

meaning of supplement is “to add or serve as a supplement to.”

Merriam-Webster Dictionary, https://perma.cc/GN3D-PF8T; see

also Black’s Law Dictionary 1395 (11th ed. 2019) (“Unlike an

amended pleading, a supplemental pleading merely adds to the

early pleading and does not replace it.”) (emphasis added). This

meaning is consistent with the plain language of Crim. P.

35(c)(3)(V), permitting court-appointed counsel to add claims to a

defendant’s pro se motion. Indeed, it would make little sense to

7
require counsel to reassert claims already made. Cf. People v.

Clark, 2015 COA 44, ¶ 111 (increasing judicial efficiency is an

important concern because doing so preserves a scarce public

resource). Therefore, we conclude that court-appointed counsel is

not required to reassert issues raised in a pro se motion in a

supplemental motion in order to preserve them for the

postconviction court’s ruling and this court’s review.

¶ 16 Second, the People have not identified, nor can we find, any

language in the supplemental motion that purports to abandon or

waive any issues raised in Smith’s pro se motion. To be sure,

counsel has no duty to pursue meritless claims; however, nothing

in the record shows that counsel considered Smith’s pro se claims

to be meritless or that she sought (or received) Smith’s informed

consent to waive any claims. And we must indulge every

presumption against waiver. Phillips, ¶¶ 16, 18, 22 (declining to

infer waiver from counsel’s behavior).

¶ 17 In Dooly, court-appointed counsel filed a motion to dismiss the

defendant’s pro se postconviction motion on the grounds that it had

no merit. Dooly, ¶ 1. The district court granted counsel’s motion,

and a division of this court affirmed. Id. On review, our supreme

8
court discussed the decisions counsel and the defendant may

make, recognizing that trial counsel is generally accepted as the

“captain of the ship” and that appellate counsel may decide which

issues to pursue on appeal. Id. at ¶ 7. But in the postconviction

context, the court found that “[t]o permit the denial of

postconviction relief for lack of merit under the guise of granting

[counsel’s] motion to dismiss his client’s application would be little

different from permitting the appointment of counsel to ‘serve as the

court’s fact-finder,’ precisely the procedure we rejected in

Breaman.” Id. at ¶ 10. And it held that neither counsel nor the

postconviction court may dismiss a defendant’s claims without

informed consent. Id.

¶ 18 Applying Dooly’s holding here, we conclude that footnote one is

analogous to a postconviction court’s dismissal of a defendant’s

claims and that it fails to satisfy a postconviction court’s

independent obligation to make findings of fact and conclusions of

law for each claim raised. See Breaman, 939 P.2d at 1352. Absent

evidence of Smith’s intent to waive his pro se claims, we reverse the

portion of the postconviction court’s order finding a waiver and

9
remand this case to the postconviction court for an independent

evaluation of Smith’s pro se claims.2

III. Remaining Claims

¶ 19 Smith next contends that the postconviction court erroneously

denied two of his claims without a hearing.3 He argues that trial

counsel was ineffective in failing to make a record of the trial court’s

ex parte communications with the jury and in failing to consult an

independent expert to assist in preparing for cross-examination of

the prosecution’s generalized expert witness. We address and reject

each contention.

A. Ex Parte Communication

¶ 20 Once the jury began deliberating, the trial court explained to

the parties that it would ask the clerk to speak with the jury around

5 p.m. to see whether it was close to reaching a verdict. Assuming

the jury was not close to a verdict, the court said it saw no reason

to keep the jury late. The court told counsel that it would need to

admonish the jury, and that it could do so either off the record

2 We express no opinion on the merits of Smith’s pro se claims.
3 Because Smith does not appeal the court’s ruling on his failure to

investigate a witness or cumulative error, we deem them
abandoned. See People v. Liggett, 2021 COA 51, ¶ 53.

10
without counsel present or in the courtroom with counsel present.

Defense counsel stated that she did not have a problem with the

court admonishing the jurors off the record.

¶ 21 During deliberations, the jury asked two questions. And at

6:04 p.m., the jury asked to view a video. After a brief discussion

with both counsel, the court offered to personally deliver a written

response to the jury. Defense counsel objected and said the court

should not speak with the jury without counsel present, but she

agreed the bailiff could deliver the response. Instead, the court

brought the jury into the courtroom to ascertain the status of

deliberations, and defense counsel expressed her concern about the

jurors feeling rushed. The court gave the following instructions:

THE COURT: I’ve received your question. I
have an answer to your question; however, I’m
afraid we cannot wait longer, and I don’t want
-- and I know you all wanted to reach a verdict
tonight, but bottom line is we can’t stay. And I
-- it would be inappropriate to say you’ve got
five minutes, because you’d be rushed. And I
want -- I think, all the parties want you to take
as much time as you need to reach a verdict.
So I’m sorry to say you’re going to have to
come back Monday morning, but -- you’re
going to have to come back Monday morning.
And so as you go home over the weekend, all
the same reminders: don’t talk to anybody,
don’t talk to each other.

11
And this becomes important at this stage,
because once you’ve started deliberating, it’s
easy to talk to each other. Don’t do that. You
can only talk when you’re all together in the
jury room.
Of course, again, don’t do any
investigation and don’t do any research. And
what I will do, I have other things scheduled
Monday morning. I’m not going to visit with
you. I’m going to instruct you that whenever
you get here, you can begin deliberating.
I would -- as you go back into the jury
room, you can -- I would say you can start at
8:30 or 9:00. I wouldn’t encourage any later
than that. I don’t know if you can reach an
immediate consensus, but I’d say 8:30 or 9:00,
and then we’ll go through, take as long as you
need to finish reaching your verdict, and we’ll
go through the procedure Monday morning
that we went through this afternoon.

(Emphasis added.)

¶ 22 On direct appeal, Smith raised the ex parte communication

issue, and a division of this court held that counsel’s affirmative

acquiescence invited any error and that Smith had waived the right

to object. Smith, No. 14CA0085, slip op. at 6-7.

¶ 23 The postconviction court denied Smith’s claim and found that,

even assuming counsel’s deficient performance, he had not shown

what post-verdict conversations with the jurors would have revealed

and, thus, he failed to establish prejudice.

12
¶ 24 We discern no error in the court’s ruling for four reasons.

First, we are not convinced that any ex parte communications

occurred. The record before us reveals that the court intended to

have the clerk speak with the jury at the end of the day, and it gave

counsel the choice of being present or absent when it admonished

and released the jury. It further shows that the jury asked two

questions and deliberated well beyond 5 p.m., but it does not reveal

any ex parte communications during this time. And when counsel

objected to the court personally delivering any messages to the jury

concerning its request to view the video, the court brought the jury

into the courtroom and released it in counsel’s presence.

¶ 25 Second, while Smith argues that juror affidavits “would have

assisted in resolving this issue,” he does not explain how they

would have assisted or what they would have said. Indeed,

postconviction counsel made no efforts to obtain the jurors’ contact

information to learn what their affidavits might have revealed. See

People v. Simpson, 69 P.3d 79, 80-81 (Colo. 2003) (defendant has

the burden of providing sufficient facts to warrant a hearing).

Moreover, given the constrictions of CRE 606(b), Smith has not

established how he would have obtained this information.

13
¶ 26 Third, we are not persuaded that the court’s alleged ex parte

communications constituted a persistent reminder to the jury that

they needed to reach a decision and may have led it to feel rushed,

thereby undermining confidence in the verdict, because the record

does not support this argument. Instead, the record shows that the

court twice instructed the jurors to take as much time as they

needed to reach a verdict, and, absent contrary evidence, we

presume the jurors followed the court’s instructions. See People v.

Salas, 2017 COA 63, ¶ 14. Moreover, in light of the overwhelming

evidence presented in this case, including the video, even assuming

deficient performance, we discern no prejudice. See Dunlap v.

People, 173 P.3d 1054, 1068 (Colo. 2007) (prejudice prong of the

Strickland analysis not established where there is overwhelming

evidence of defendant’s guilt).

¶ 27 Fourth, we reject Smith’s claim that if the error had been

properly preserved, his conviction would have been reversed on

direct appeal. While we agree that preserved ex parte

communications are typically reviewed for harmless error, they are

not entitled to automatic reversal. Key v. People, 865 P.2d 822, 826

(Colo. 1994). And even assuming an erroneous ex parte

14
communication occurred, the postconviction court noted, and we

agree, that the error would likely have been found harmless in light

of the trial court’s instruction to the jurors to take their time

reaching a verdict. Cf. People v. Urrutia, 893 P.2d 1338,1342-43

(Colo. App. 1994) (finding harmless error when the trial court did

not indicate that jurors were under any time limit to reach a

consensus or declare a deadlock); People v. Fell, 832 P.2d 1015,

1020 (Colo. App. 1991) (telling a prospective juror that they “will be

out of here” in approximately two and one-half days was not

coercive); Allen v. People, 660 P.2d 896, 898 (Colo. 1983)

(instruction that jury only had another fifteen minutes to deliberate

before a mistrial was declared was coercive).

¶ 28 Therefore, we discern no error in the postconviction court’s

denial of this claim without a hearing. See Ardolino, 69 P.3d at 77.

B. Expert Consultation

¶ 29 The prosecutor endorsed and presented generalized expert

testimony on child sexual abuse.4 Smith contends trial counsel

4Generalized experts provide general context to educate the jury in
complex cases and often know little or nothing about the case facts,
have never met the victim, and have not performed any case-related
analyses or examinations. People v. Cooper, 2021 CO 69, ¶¶ 49-53.

15
should have consulted an independent expert to assist her in

cross-examining the prosecution’s expert. We disagree for two

reasons.

¶ 30 First, whether to consult or retain an expert is a matter of

strategy. Davis v. People, 871 P.2d 769, 773 (Colo. 1994) (the

decision to interview or call a particular witness, if made in the

exercise of reasonable professional judgment, is a tactical decision

that does not amount to ineffective assistance); People v. Newmiller,

2014 COA 84, ¶ 48 (Where defense counsel’s decision not to call an

expert to testify “was strategic and adequately informed,” defendant

could not overcome “the ‘virtually unchallengeable’ presumption

that counsel’s decision was objectively reasonable.”) (citation

omitted); People v. Aguilar, 2012 COA 181, ¶ 12 (Defense counsel’s

decision not to hire an expert “was a matter of trial strategy” that

fell within “the wide range of professionally competent assistance”;

further, “[d]efendant’s assertion that an expert could have

contradicted the prosecution’s evidence was facially speculative.”);

People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001) (“[T]he

tactical decision not to call . . . an expert witness was within the

discretion of trial counsel and does not support defendant’s claim of

16
ineffective assistance of counsel.”). The record reveals that,

initially, Smith’s counsel sought state funds to finance the cost of

an expert. But approximately two weeks later, counsel withdrew

her motion and said, “[u]pon further review of the case, the

undersigned has determined that an expert witness for the defense

will not be necessary.” Thus, the record shows that counsel

informed herself of the facts of the case and made a tactical

decision not to use an expert’s assistance to prepare for

cross-examination.

¶ 31 Second, decisions concerning whether and how to conduct

cross-examination are strategic ones committed to counsel’s

discretion. See Arko v. People, 183 P.3d 555, 558 (Colo. 2008)

(decision to conduct cross-examination is a strategic decision by

counsel). And when evaluating counsel’s decisions, we must forgo

the use of hindsight, and give counsel’s actions a strong

presumption of falling within the wide range of reasonable

professional conduct. Strickland, 466 U.S. at 689.

¶ 32 Trial counsel’s cross-examination challenged the expert’s

veracity by revealing her limited experience in dealing with

nonabused children, her admission to relying on studies with

17
flawed methodologies, her concession that almost any child

behaviors can be consistent with sexual abuse, and the use of

effective hypotheticals. Smith does not explain what additional

information that a jury would have found persuasive could have

been gleaned from consulting an independent expert. And “[m]ere

disagreement as to trial strategy will not support a claim for

ineffective assistance of counsel.” Bradley, 25 P.3d at 1275. Given

the overwhelming evidence presented at trial, we conclude that the

outcome likely would not have changed. See Dunlap, 173 P.3d at

1068.

¶ 33 Accordingly, we discern no error in the postconviction court’s

decision to deny this claim without a hearing. See Ardolino, 69 P.3d

at 77.

IV. Conclusion

¶ 34 The order is affirmed in part and reversed in part and the case

is remanded for the postconviction court to make further findings

on the claims raised in the pro se motion.

JUDGE FOX and JUDGE GOMEZ concur.

18