by Sam Rutherford

The Supreme Court of Colorado issued an opinion defining the scope of a defendant’s pro se Crim. P. 35(c) motion containing a request for counsel on postconviction review, holding that the trial court has only two choices: (1) determine none of the claims has arguable merit and deny the motion in its entirety or (2) determine at least one claim has arguable merit and grant the request for postconviction counsel and not deny any of the claims, i.e., not limit the scope of postconviction counsel’s representation to only arguably meritorious claims.

Background

Francine Erica Segura and two codefendants committed an armed home invasion robbery. Segura was convicted of multiple related offenses following a jury trial and sentenced to 111 years in prison. Her convictions and sentence were affirmed on direct appeal, but the trial court later reduced Segura’s sentence to 73 years.

Segura then filed a pro se motion for postconviction relief pursuant to Rule 35 of the Colorado Rules of Criminal Procedure (“Rule 35”) in the trial court, raising 11 ineffective assistance of trial counsel claims. Segura, who was in prison and indigent, also requested that the trial court appoint counsel to represent her. The trial judge reviewed Segura’s pro se motion, concluding that 10 of her 11 claims lacked merit and dismissed them accordingly.

As to the one remaining claim, the court found it arguably meritorious and forwarded Segura’s pro se motion to the prosecutor’s office and the Office of the Public Defender (“OPD”) for further review and briefing. The OPD subsequently determined it could not represent Segura due to a conflict of interest, so an attorney from the Office of Alternate Defense Counsel (“OADC”) was assigned to represent her. The OADC attorney briefed only the one claim that survived the trial court’s initial screening of Segura’s motion. The trial court held an evidentiary hearing on this claim and denied it on the merits.

Segura timely appealed, and the Court of Appeals affirmed in part and reversed in part. The appellate court affirmed the denial of the one claim the trial judge found initially meritorious but held that the trial court violated the plain language of Rule 35 by limiting the OADC attorney’s representation to only the claim the trial court determined was arguably meritorious. Instead, the trial court should have appointed counsel to represent Segura without limitation with respect to her claims and then permitted the attorney to decide which claims to pursue on Segura’s behalf, according to the appellate court.

The prosecution sought and was granted discretionary review in the Colorado Supreme Court, which affirmed in a unanimous opinion.

Analysis

The Court granted certiorari review to determine whether the trial court erred by limiting postconviction counsel’s representation of Segura to only the one claim it found arguably meritorious. This issue turned on the proper construction of Rule 35, which is reviewed de novo. Hunsaker v. People, 500 P.3d 1110 (Colo. 2021).

The Court stated that court rules are interpreted like statutes, meaning that if the plain language of the rule is unambiguous, the reviewing court must apply it as written. People v. Steen, 318 P.3d 487 (Colo. 2014). Or, as the Court elegantly explained, “[w]hen a rule ‘is as clear as a glass slipper and fits without strain, courts should not approve an interpretation that requires a shoehorn.’” Quoting Demko v. United States, 216 F.3d 1049 (Fed. Cir. 2000). Instead, courts “simply apply the rule—i.e., ‘merely to put [the glass slipper] on the foot where it belongs.’” Quoting Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219 (10th Cir. 2016).

Based on the facts of the present case, the Court stated that Rule 35 unambiguously requires the trial court to appoint counsel for Segura without limiting the scope of postconviction counsel’s representation. Rule 35(c)(3)(I)-(IX) delineates the procedures that must be followed for filing and resolving postconviction motions. Under subsection (c)(3)(IV), a trial court may deny a pro se motion without forwarding a copy to the prosecutor’s office or the OPD if it concludes that the motion, the record, and the file show the defendant is not entitled to relief on any of the claims raised. But, under subsection (c)(3)(V), if the trial court determines that the pro se motion contains at least one claim with arguable merit and the defendant requests the appointment of counsel, it must forward the entire motion to the prosecutor’s office and the OPD. That is, the trial court may not forward just the claim(s) it believes has arguable merit, the Court instructed.

The Court then explained the procedure the OPD must follow once it receives a non-frivolous postconviction motion: OPD must “file a response within forty-nine days indicating whether it has a conflict of interest and, if not, whether it intends to enter its appearance and whether it needs more time to investigate the defendant’s claims. If the OPD enters its appearance, it must include in its response any additional claims that have arguable merit.” Citing Rule 35(c)(3)(V). The trial court must then hold an evidentiary hearing on the claims raised by appointed counsel unless they can be resolved on the pleadings, the Court instructed.

But what the trial court may not do is “restrict the scope of postconviction counsel’s representation,” stated the Court. Instead, when, as in Segura’s case, “a defendant files a pro se Crim. P. 35(c) motion that contains a request for counsel,” the trial court can either deny the entire motion as frivolous or, if “at least one claim has arguable merit,” the court “must grant the request for postconviction counsel and forward a complete copy of the motion to the prosecution and the OPD. The OPD must then determine which claims (if any) lack arguable merit and should be abandoned, which arguably meritorious claims (if any) should be supplemented, and which new claims (if any) have arguable merit and should be added,” the Court instructed.

Because the trial court did not follow this procedure in Segura’s case, the Court held that the trial court violated the plain language of Rule 35. This error was not harmless because the prosecution failed to raise that argument.

Conclusion

Accordingly, the Court affirmed the Court of Appeals’ decision vacating the trial court’s order denying Segura’s 10 uncounseled postconviction claims and remanded the case for further proceedings consistent with its opinion, i.e., appointed counsel must have unlimited discretion to decide which claims, including ones not raised by Segura, to pursue. See: People v. Segura, 558 P.3d 234 (Colo. 2024).  

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