     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 7, 2020

                                2020COA76

No. 17CA0972, Peo v Houser — Criminal Procedure —
Postconviction Remedies — Conviction Obtained or Sentence
Imposed in Violation of the Constitution; Attorneys and Clients
— Ineffective Assistance of Counsel

     A division of the court of appeals considers whether a district

court may deny without a hearing a defendant’s Crim. P. 35(c)

motion premised on trial counsel’s alleged ineffectiveness for not

presenting constitutional arguments that no appellate court in this

state has ever adopted. The majority holds that a Crim. P. 35(c)

motion fails to establish a meritorious claim of ineffective assistance

of counsel if it rests on an attorney’s failure to raise novel

arguments unsupported by then-existing precedent.

     The partial dissent would remand based on its determination

that several of the defendant’s constitutional claims that underlie

his ineffective assistance of counsel claims have merit. The partial
dissent would hold that a defendant is entitled to a hearing on a

Crim. P. 35(c) claim that presents serious constitutional questions

regarding the validity of his conviction and sentence.
COLORADO COURT OF APPEALS                                           2020COA76


Court of Appeals No. 17CA0972
Douglas County District Court No. 06CR678
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Charles Houser,

Defendant-Appellant.


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

                                   Division VII
                          Opinion by JUDGE LIPINSKY
                                 Fox, J., concurs
                 Berger, J., concurs in part and dissents in part

                            Announced May 7, 2020


Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Timothy Charles Houser, appeals the district

 court’s order denying his Crim. P. 35(c) motion for postconviction

 relief. The postconviction court rejected Houser’s constitutional

 arguments and his claims of ineffective assistance of counsel

 without a hearing.

¶2    We affirm the postconviction court’s denial of Houser’s

 constitutional arguments. We also affirm the portion of the

 postconviction court’s order addressing Houser’s claim that his trial

 counsel was ineffective for failing to raise novel arguments. We hold

 that an attorney cannot be deemed ineffective solely because he or

 she did not take positions unsupported or not “clearly

 foreshadowed” by then-existing law. In addition, we affirm the

 portion of the order holding that Houser is not entitled to a hearing

 on his claim that his attorney was ineffective for failing to raise a

 valid defense, because that claim fails as a matter of law. However,

 we reverse the postconviction court’s denial of Houser’s claims that

 his counsel was ineffective for not challenging the out-of-court

 identification of Houser and the search warrant resting on such

 identification, and not challenging the prosecution’s alleged

 outrageous conduct in forcing his first attorney to withdraw. The


                                    1
 case is remanded to the postconviction court for a hearing on those

 claims.

                           I.    Background

¶3    Houser was convicted of patronizing a prostituted child in

 violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old

 A.J. testified at Houser’s trial that she earned money through

 prostitution. She posted an advertisement on Craigslist in which

 she identified herself as a twenty-year-old “playmate.” Houser

 responded to A.J.’s posting. A.J. told police she went to Houser’s

 “home in Douglas County where he paid her $240 to engage in

 sexual acts with him.” People v. Houser, 2013 COA 11, ¶ 2, 337

 P.3d 1238, 1243 (Houser I).

¶4    Houser was charged with patronizing a prostituted child.

 Houser filed a pretrial notice of intent to assert an affirmative

 defense under section 18-1-503.5, C.R.S. 2019, that Houser had

 reasonably believed A.J. was over the age of eighteen. That statute

 authorizes a reasonable mistake of age defense, although it does

 not refer to the child prostitution statutes. The prosecution filed an

 objection to the notice, arguing that section 18-7-407, C.R.S. 2019,

 which expressly applies to the child prostitution statutes, precluded


                                    2
 Houser from raising such a defense. See § 18-7-407 (“In any

 criminal prosecution under sections 18-7-402 to 18-7-407, it shall

 be no defense that the defendant did not know the child’s age or

 that he reasonably believed the child to be eighteen years of age or

 older.”).

¶5     Following a hearing, the trial court found that section

 18-7-407 bars defendants charged with patronizing a prostituted

 child from presenting a reasonable mistake of age defense. The

 court, therefore, prohibited Houser from arguing at trial that he

 reasonably believed A.J. was at least eighteen years old.

¶6     A jury found Houser guilty of patronizing a prostituted child.

 The trial court sentenced him to thirty days in jail, with ten days’

 credit for time served, and sex offender intensive supervised

 probation for an indeterminate term of ten years to life. Six years

 later, after Houser failed to comply with the terms of his probation,

 the trial court resentenced him to two years to life in the custody of

 the Department of Corrections.




                                    3
                      A.    Houser’s Direct Appeal

¶7    Houser appealed his conviction. A division of this court

 affirmed. Houser I, ¶ 1, 337 P.3d at 1243. Two of the holdings in

 Houser I are relevant here.

¶8    First, the division affirmed the trial court’s ruling that Houser

 was precluded from presenting a reasonable mistake of age defense.

 Id. at ¶ 27, 337 P.3d at 1246. In comparing sections 18-1-503.5(1)

 and 18-7-407, the Houser I division acknowledged that the former

 “mandates that the court allow a reasonable belief defense when the

 victim is at least fifteen years old, [while] the other expressly

 prohibits such a defense.” Id. at ¶ 19, 337 P.3d at 1245. After

 meticulously analyzing the legislative history of the two statutes,

 the division determined that section 18-7-407 applies to the offense

 of patronizing a prostituted child. Thus, defendants charged with

 that offense cannot present a reasonable mistake of age defense, as

 a matter of law. Id. at ¶¶ 18-27, 337 P.3d at 1245-46.

¶9    Second, the division declined to consider Houser’s

 unpreserved argument that section 18-7-401(6), C.R.S. 2019, which

 defines “prostitution by a child,” is unconstitutionally vague on its

 face. Id. at ¶ 49, 337 P.3d at 1250. The division decided that


                                     4
  judicial economy did not “afford a basis” for departing from the

  principle that a constitutional challenge may not be raised for the

  first time on appeal. Id. at ¶¶ 28, 30, 49, 337 P.3d at 1246, 1247,

  1250.

                     B.   Houser’s Crim. P. 35(c) Motion

¶ 10   After the Houser I division affirmed his conviction, Houser filed

  a Crim. P. 35(c) motion challenging the constitutionality of his

  conviction and sentence, and alleging ineffective assistance of

  counsel. The postconviction court denied Houser’s motion without

  a hearing. It found that Houser I precluded Houser’s constitutional

  arguments and, even if Houser could present such arguments, they

  fail on the merits. It also held that Houser failed to establish

  prejudice and deficient performance and, therefore, is not entitled to

  a hearing on his ineffective assistance of counsel claims. This

  appeal followed.

¶ 11   In his appeal, Houser largely reasserts the arguments he

  presented in his Crim. P. 35(c) motion.

¶ 12   Houser raises four constitutional arguments: (1) the offense of

  patronizing a prostituted child is unconstitutionally vague; (2)

  section 18-7-401(6) violates Houser’s right to equal protection; (3)


                                     5
  section 18-7-407, which Houser I held precludes a defendant from

  raising an affirmative defense of reasonable mistake of age in child

  prostitution cases, violates Houser’s equal protection and due

  process rights; and (4) section 18-1.3-1004(2)(a), C.R.S. 2019, the

  Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is

  unconstitutional as applied to Houser and, specifically, violates his

  due process rights.

¶ 13   Further, Houser contends that his trial counsel was ineffective

  in failing to (1) challenge the constitutionality of section 18-7-407;

  (2) challenge the constitutionality of his sentence under SOLSA; (3)

  argue that the offense of patronizing a prostituted child is void for

  vagueness; (4) argue that Houser’s conviction under section

  18-7-406(1) violates equal protection; (5) raise a valid defense; (6)

  call a particular witness; and (7) challenge “the State’s outrageous

  conduct.” Houser argues that the postconviction court erred in

  denying him a hearing on the claims raised in his Crim. P. 35(c)

  motion.

                  II.   Houser’s Constitutional Claims

¶ 14   Before we address the merits of Houser’s constitutional

  arguments, we first consider the People’s contention that they are


                                     6
  not properly before us. The People assert that, because Houser

  raised only one constitutional argument in his direct appeal, we are

  precluded from considering all of Houser’s constitutional claims

  under Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) or, in the

  alternative, under the doctrine of law of the case. We disagree that

  Houser’s void for vagueness argument is not properly before us.

  However, we agree with the People that we are precluded from

  considering Houser’s other constitutional arguments under Crim. P.

  35(c).

   A.       Although Houser’s Void for Vagueness Argument Is Properly
           Before Us, We Do Not Consider Houser’s Other Constitutional
                         Arguments Under Crim. P. 35(c)

              1.   Crim. P. 35(c)(3)(VI) and Crim. P. 35(c)(3)(VII)

¶ 15    Crim. P. 35(c)(3)(VI) requires us to “deny any claim that was

  raised and resolved in a prior appeal . . . .” We must also “deny any

  claim that could have been presented in an appeal previously

  brought or postconviction proceeding previously brought . . . .”

  Crim. P. 35(c)(3)(VII); see Dunlap v. People, 173 P.3d 1054, 1062 n.4

  (Colo. 2007).

¶ 16    As discussed above, Houser contended in his direct appeal

  that the offense of patronizing a prostituted child is


                                       7
  unconstitutionally vague, although the division in Houser I declined

  to consider the argument. Houser I, ¶¶ 28, 49, 337 P.3d at 1246,

  1250. Houser’s void for vagueness argument, therefore, does not fit

  within Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) because it was

  raised, but not resolved, in Houser’s direct appeal. We therefore

  address this argument on the merits. We do not, however, consider

  Houser’s remaining constitutional arguments because Houser could

  have raised them in his direct appeal but did not do so. See Crim.

  P. 35(c)(3)(VII).

                          2.    Law of the Case

¶ 17    “[T]he law of the case ‘is a rule of practice, based upon sound

  policy that when an issue is once litigated and decided, that should

  be the end of the matter.’” Verzuh v. Rouse, 660 P.2d 1301, 1303

  (Colo. App. 1982) (quoting United States v. U.S. Smelting Ref. &

  Mining Co., 339 U.S. 186, 198 (1950)). Houser argues that the law

  of the case doctrine does not apply to his argument that section

  18-7-406 is void for vagueness because the division in Houser I

  “refused to address or resolve” the merits of that argument. We

  agree. Because Houser’s void for vagueness argument was not




                                     8
  “litigated and decided” in Houser I, the law of the case doctrine does

  not preclude us from addressing it.

       B.    The Offense of Patronizing a Prostituted Child Is Not
                          Unconstitutionally Vague

¶ 18   We disagree with Houser’s argument that the patronizing a

  prostituted child statute is unconstitutionally vague.

¶ 19   We review the constitutionality of a statute de novo. Dean v.

  People, 2016 CO 14, ¶ 8, 366 P.3d 593, 596. A statute is not void

  for vagueness so long as it “permits persons of ordinary intelligence

  to distinguish between permissible and illegal conduct and provides

  workable standards for those responsible for the enforcement and

  application of the law.” People v. West, 724 P.2d 623, 626 (Colo.

  1986).

¶ 20   A person commits the crime of “patronizing a prostituted

  child” by performing with a child one of the acts included in the

  definition of “prostitution by a child.” § 18-7-401(6); § 18-7-406(1).

  “[P]rostitution by a child” is defined as

             either a child performing or offering or agreeing
             to perform any act of sexual intercourse,
             fellatio, cunnilingus, masturbation, or anal
             intercourse with any person not the child’s
             spouse in exchange for money or other thing of
             value or any person performing or offering or


                                      9
             agreeing to perform any act of sexual
             intercourse, fellatio, cunnilingus,
             masturbation, or anal intercourse with any
             child not the person’s spouse in exchange for
             money or other thing of value.

  § 18-7-401(6).

¶ 21   Houser argues that, because the definition of “prostitution by

  a child” includes certain actions performed by a child, but not by

  the defendant, it is unclear how a “defendant can conform his

  behavior to avoid criminal liability.” See § 18-7-401(6). For

  example, he contends that a defendant could be found guilty of

  patronizing a prostituted child merely because a child offered to

  perform for the defendant one of the acts specified in section

  18-7-401(6). Houser suggests that merely reading a child’s written

  offer of prostitution, such as in a Craigslist posting, would be

  sufficient to convict a defendant of patronizing a prostituted child.

¶ 22   But Houser’s reading of the statute is too broad. Houser was

  not convicted of “prostitution by a child,” but of “patronizing a

  prostituted child” under section 18-7-406(1)(a). Section

  18-7-406(1)(a) requires that the defendant perform one of the

  prohibited acts with a child. The plain language of the statute




                                    10
  makes clear that the actions of a child alone do not constitute an

  offense under section 18-7-406(1)(a).

¶ 23   While we acknowledge that the language of section

  18-7-406(1)(a) could be clearer, a statute “need not be drafted with

  mathematical precision” to provide “fair warning of the proscribed

  conduct.” People v. Becker, 759 P.2d 26, 31 (Colo. 1988). Thus, we

  conclude that section 18-7-406(1) is not void for vagueness.

¶ 24   Houser also tacks on a cursory as-applied challenge at the

  conclusion of his vagueness argument, suggesting that the use of

  the word “offer[]” in section 18-7-401(6) “destroyed [his] defense”

  because “the [prosecution] was able to argue Houser was guilty

  regardless of whether [he had] sex” with A.J. We do not address

  this argument because Houser presented it as a bald legal

  proposition. Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19

  (Colo. App. 2010) (“We will not consider a bald legal proposition

  presented without argument or development.”). Further, we do not

  consider Houser’s as-applied challenge because he did not present

  such argument in his original Crim. P. 35(c) motion. See People v.

  Salinas, 55 P.3d 268, 270 (Colo. App. 2002).




                                    11
¶ 25   For these reasons, we conclude that Houser is not entitled to a

  hearing on his void for vagueness claim based on the record and the

  plain language of the statute. Thus, we affirm the postconviction

  court’s summary denial of this claim.

         III.   Houser’s Ineffective Assistance of Counsel Claims

¶ 26   We next address whether Houser is entitled to a hearing on his

  ineffective assistance of counsel claims. See Crim. P. 35(c)(3)(VIII)

  (requiring that we “shall not deny a postconviction claim of

  ineffective assistance of trial counsel on the ground that all or part

  of the claim could have been raised on direct appeal”). We conclude

  that Houser is entitled to a hearing on the merits of some, but not

  all, of his ineffective assistance of counsel claims.

                            A.   Applicable Law

                1.   Ineffective Assistance of Counsel Claims

¶ 27   A criminal defendant is constitutionally entitled to the effective

  assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687

  (1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). “The

  purpose of this constitutional guarantee is to ensure the accused a

  level of assistance calculated to produce a fair and just result in a




                                     12
  criminal prosecution.” People v. Garcia, 815 P.2d 937, 940 (Colo.

  1991).

¶ 28        A defendant’s conviction may be reversed based on a claim of

  ineffectiveness of counsel, but only if the defendant satisfies both

  prongs of the test the United States Supreme Court adopted in

  Strickland. Davis, 871 P.2d at 772. Under Strickland, a defendant

  must demonstrate that (1) counsel’s performance was outside the

  wide range of professionally competent assistance and (2) the

  defendant was prejudiced by counsel’s substandard legal work.

  Strickland, 466 U.S. at 687.

¶ 29        “Because a presumption of validity attaches to a judgment of

  conviction, the burden is on the defendant to prove both elements

  by a preponderance of the evidence.” People v. McDowell, 219 P.3d

  332, 339 (Colo. App. 2009); see People v. Naranjo, 840 P.2d 319,

  325 (Colo. 1992).

       2.     Counsel’s Failure to Raise a Novel Argument Does Not Give
                 Rise to an Ineffective Assistance of Counsel Claim

¶ 30        A lawyer does not perform deficiently by “failing to raise novel

  arguments that are unsupported by then-existing precedent.”

  United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019); see



                                        13
  Snider v. United States, 908 F.3d 183, 192 (6th Cir. 2018) (“We have

  repeatedly held that counsel is not ineffective for failing to predict

  developments in the law, unless they were clearly foreshadowed by

  existing decisions.”); see also Shaw v. Wilson, 721 F.3d 908, 916-17

  (7th Cir. 2013). “Nor does counsel fall below Strickland’s standard

  of reasonableness by failing to anticipate changes in the law, or to

  argue for an extension of precedent.” Morris, 917 F.3d at 823.

  Even if a “wholly novel claim” may have had merit in hindsight,

  counsel’s failure to raise such a claim does not render his

  performance constitutionally ineffective. Anderson v. United States,

  393 F.3d 749, 754 (8th Cir. 2005).

¶ 31   Courts throughout the country have adopted this rule.

  “[N]umerous state and federal courts have concluded that counsel’s

  failure to advance novel legal theories or arguments does not

  constitute ineffective performance.” Ledbetter v. Comm’r of Corr.,

  880 A.2d 160, 167 (Conn. 2005). This does not mean that an

  attorney cannot be ineffective because he or she did not present an

  argument lacking decisive precedent. “Even where the law is

  unsettled, . . . counsel must raise a material objection or argument

  if ‘there is relevant authority strongly suggesting’ that it is


                                     14
  warranted.” Morris, 917 F.3d at 824 (quoting United States v.

  Carthorne, 878 F.3d 458, 466 (4th Cir. 2017)). “While defense

  attorneys need not predict every new development in the law, ‘they

  are obliged to make [ ] argument[s] that [are] sufficiently

  foreshadowed in existing case law.’” Id. (quoting Shaw, 721 F.3d at

  916-17).

¶ 32   Thus, an attorney performs effectively by choosing “to

  maneuver within the existing law, declining to present untested or

  rejected legal theories.” State v. McNeill, 700 N.E.2d 596, 607 (Ohio

  1998); see Bailey v. State, 472 N.E.2d 1260, 1265 (Ind. 1985)

  (holding that counsel is not ineffective if he or she fails to “change

  then-existing law”); see also Engle v. Isaac, 456 U.S. 107, 134

  (1982) (“[T]he Constitution guarantees criminal defendants only a

  fair trial and a competent attorney. It does not insure that defense

  counsel will recognize and raise every conceivable constitutional

  claim.”).

¶ 33   The partial dissent asserts that we are making new bright line

  rule in holding that an attorney cannot be deemed ineffective for not

  presenting new theories or arguments. There is nothing novel

  about our holding, however. Our approach reflects the well-


                                     15
  established principle that, to prevail on a claim of ineffective

  assistance of counsel, a defendant must show that his or her

  counsel’s legal work fell outside the “wide range of professionally

  competent assistance.” Strickland, 466 U.S. at 690. Indeed, no

  reported Colorado decision has held that an attorney was ineffective

  because he or she did not attempt to break new legal ground, and

  the partial dissent cites to no Colorado authority in support of its

  expansive view of ineffectiveness.

¶ 34   The partial dissent asserts that

             [i]f any of Houser’s constitutional claims that
             underlie his ineffective assistance of counsel
             claims have merit, he should be given an
             opportunity to convince a district court judge,
             based on evidence, including expert testimony,
             that the failure to raise those meritorious
             claims constituted deficient performance under
             the first prong of Strickland.

  Infra ¶ 93. But under this reasoning, a defendant would be entitled

  to a hearing on any Crim. P. 35(c) claim for ineffective assistance

  merely by arguing that counsel failed to raise a constitutional

  argument with any potential merit. This would be true even where

  the claim rests on arguments that would have been directly contrary




                                     16
  to the law at the time of trial and where counsel raised a reasonable

  alternative argument.

¶ 35   Strickland cautioned that “[i]t 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 was unreasonable.”

  Strickland, 466 U.S. at 689. The Court noted that “[i]ntensive

  scrutiny of counsel . . . could dampen the ardor and impair the

  independence of defense counsel, discourage the acceptance of

  assigned cases, and undermine the trust between attorney and

  client.” Id. at 690. Thus, “[c]ourts should strive to ensure that

  ineffectiveness claims not become so burdensome to defense

  counsel that the entire criminal justice system suffers as a result.”

  Id. at 697.

¶ 36   The partial dissent’s interpretation of ineffectiveness would

  also have significant repercussions for every attorney in this state,

  as it would lower the bar for proving professional negligence. See

  Rantz v. Kaufman, 109 P.3d 132, 139 (Colo. 2005) (explaining that

  the “inquiry undertaken” in cases involving ineffective assistance


                                    17
  and cases involving legal malpractice “is identical and focuses on

  what ordinary members of the legal profession would have done at

  the time the action was taken”). If a criminal defense attorney can

  be deemed ineffective for not urging a court to adopt a new

  constitutional rule, then an attorney could be found professionally

  negligent for making the same judgment call. Finding that an

  attorney commits malpractice by not seeking this type of change in

  the law would flood the courts with new professional negligence

  lawsuits, as well as novel claims filed by attorneys practicing

  defensive lawyering.

       3.    Denials of Crim. P. 35(c) Motions Without a Hearing

¶ 37   A defendant is entitled to a hearing on the merits of a Crim. P.

  35 motion if he or she “assert[ed] facts that if true would provide a

  basis for relief.” White v. Denver Dist. Court, 766 P.2d 632, 635

  (Colo. 1988). A court, therefore, may only deny a Crim. P. 35(c)

  motion without a hearing when “the motion and the files and record

  of the case show to the satisfaction of the court that the defendant

  is not entitled to relief.” Crim. P. 35(c)(3)(IV); see People v. Thomas,

  867 P.2d 880, 890-91 (Colo. 1994). “Summary denial of a

  postconviction relief motion is also appropriate if the claims raise


                                     18
  only an issue of law, or if the allegations, even if true, do not

  provide a basis for relief.” People v. Venzor, 121 P.3d 260, 262

  (Colo. App. 2005).

¶ 38        Thus, “[t]he denial of a claim of ineffective assistance of

  counsel without a hearing is justified if, but only if, the existing

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

  true, would fail to establish either constitutionally deficient

  performance or prejudice.” People v. Chavez-Torres, 2016 COA

  169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843;

  see People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996).

¶ 39        “We review de novo a postconviction court’s denial of a Crim.

  P. 35(c) motion without a hearing.” People v. McGlaughlin, 2018

  COA 114, ¶ 25, 428 P.3d 691, 697.

       B.    The Failure to Raise Novel Legal Arguments Did Not Render
                             Houser’s Counsel Ineffective

¶ 40        Houser contends that his counsel was ineffective by failing to

  raise four arguments that were not established by precedent at the

  time: the unconstitutionality of section 18-7-407, the

  unconstitutionality of Houser’s sentence under SOLSA, section




                                         19
  18-7-406(1) is void for vagueness, and section 18-7-406(1) violates

  equal protection.

¶ 41   We disagree and affirm the postconviction court’s denial of

  these claims without a hearing because, as a matter of law,

  Houser’s counsel was not ineffective for failing to raise novel

  arguments.

  1.    Failure to Challenge the Constitutionality of Section 18-7-407

¶ 42   Houser argues that his counsel was ineffective because he

  failed to challenge the constitutionality of section 18-7-407, which

  precludes a defendant from raising a mistake of age defense in

  cases involving offenses under the child prostitution statutes. We

  disagree.

¶ 43   Houser does not cite, and, with one exception, we cannot find,

  any reported case involving a challenge to the constitutionality of

  section 18-7-407. See People v. Maloy, 2020 COA 71, ¶ 44, ___ P.3d

  ___, ___ (rejecting challenge to the constitutionality of section

  18-7-407).

¶ 44   Significantly, at the time of Houser’s trial, no Colorado case

  had yet clarified whether section 18-7-407 or section 18-1-503.5(1),

  the more general statute allowing for a reasonable mistake of age


                                     20
  defense, applied to the offense of patronizing a prostituted child.

  The issue was not resolved until Houser’s direct appeal. See

  Houser I, ¶ 14, 337 P.3d at 1244 (concluding, “in a matter of first

  impression, that section 18-7-407 prevents a defendant from

  offering a reasonable belief in age defense to a charge of patronizing

  a prostituted child”) (emphasis added); see also Maloy, ¶ 40, ___

  P.3d at ___ (citing to Houser I for the proposition that, under

  sections 18-1-503.5(1) and 18-7-407, the affirmative defense of

  reasonable mistake of age is not available to a defendant charged

  with patronizing a prostituted child).

¶ 45   At the pretrial hearing on this issue, Houser’s counsel argued

  that section 18-1-503.5(1) applied to the offense of patronizing a

  prostituted child and that Houser should therefore be allowed to

  argue at trial that he reasonably believed A.J. was an adult. In

  support of this argument, counsel cited to the legislative history of

  each statute and presented a number of other arguments

  supporting his position. Houser’s attorney did not challenge the

  constitutionality of section 18-7-407, however. The prosecution

  countered that section 18-7-407 applied based on rules of statutory




                                    21
  construction because it was more specific than section

  18-1-503.5(1).

¶ 46   The postconviction court, which had also presided over the

  hearing, said that, although it had ultimately concluded that

  18-7-407 was “better law,” the argument of Houser’s counsel had

  been “skillful and rational.”

¶ 47   Houser urges us to conclude that counsel’s failure to challenge

  the constitutionality of section 18-7-407 rendered his performance

  ineffective. Regardless of the persuasiveness of Houser’s

  constitutional arguments, the issue before us is whether counsel’s

  choice of argument rendered his performance deficient. Anderson,

  393 F.3d at 754 (explaining that the question is not whether

  counsel’s decision to choose an argument was “intelligent or

  effective,” but whether the decision was an unreasonable one that

  only an incompetent attorney would make); see also Strickland, 466

  U.S. at 690 (“[S]trategic choices made after thorough investigation

  of law and facts relevant to plausible options are virtually

  unchallengeable . . . .”). Because a challenge to the

  constitutionality of section 18-7-407 would have been novel at the

  time, Houser’s counsel was not ineffective by not presenting such a


                                    22
  challenge and choosing, instead, to argue that the statute did not

  apply to Houser.

¶ 48   We hold that, regardless of the facts Houser could present at a

  Crim. P. 35(c) hearing, he could not prove that his counsel’s

  performance was deficient on the grounds that the attorney did not

  mount a novel constitutional challenge to section 18-7-407 when

  counsel put forth a “skillful and rational” argument that the statute

  did not apply. If successful, the argument would have allowed

  Houser to raise the defense of reasonable mistake of age. Thus, we

  affirm the postconviction court’s decision to deny Houser a hearing

  on his claim that his counsel was ineffective for failing to challenge

  the constitutionality of section 18-7-407.

  2.   Failure to Challenge the Constitutionality of Houser’s Sentence
                                Under SOLSA

¶ 49   Houser contends that his counsel’s failure to challenge the

  constitutionality of SOLSA as applied to Houser rendered counsel’s

  performance deficient. We disagree.

¶ 50   As Houser acknowledges, divisions of this court — including

  the divisions that decided the issue before his trial — have rejected

  every facial challenge to the constitutionality of SOLSA. See, e.g.,



                                    23
People v. Knobee, 2020 COA 7, ¶ 63, ___ P.3d ___, ___; People v.

Sabell, 2018 COA 85, ¶ 47, 452 P.3d 91, 100; People v. Relaford,

2016 COA 99, ¶ 72, 409 P.3d 490, 501; People v. Torrez, 2013 COA

37, ¶ 88, 316 P.3d 25, 40; People v. Collins, 250 P.3d 668, 679

(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.

2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). Until

April 2020, divisions of this court had also rejected every as-applied

challenge to the constitutionality of the statute. See Maloy, ¶ 35,

___ P.3d at ___ (ruling in favor of the defendant’s as-applied equal

protection challenge to a section of SOLSA for the first time in a

reported case); see also Sabell, ¶ 45, 452 P.3d at 100 (rejecting an

as-applied constitutional challenge to SOLSA because the division

was not persuaded to depart from the numerous decisions of

previous divisions of this court affirming the constitutionality of

SOLSA); People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003)

(holding that SOLSA was not unconstitutional as applied to the

defendant); cf. People in Interest of T.B., 2019 COA 89, ¶ 1, ___ P.3d

___, ___ (holding that the automatic lifetime registration

requirement contained in the Colorado Sex Offender Registration




                                  24
  Act is unconstitutional as applied to juveniles) (cert. granted Feb. 3,

  2020).

¶ 51   Rather than raise an argument unsupported by Colorado

  precedent, Houser’s counsel asserted that Houser was not subject

  to SOLSA because he reasonably believed A.J. was an adult, asked

  the court to consider that A.J. had misled Houser about her age,

  noted that the legislature did not intend that SOLSA punish

  someone like Houser who reasonably believed he was patronizing

  an adult prostitute, and argued that the sex offender treatment

  required under SOLSA was unnecessary based on Houser’s

  psychological evaluations.

¶ 52   Because the Colorado appellate courts had universally rejected

  constitutional challenges to SOLSA at the time of Houser’s trial, he

  cannot establish he was prejudiced by counsel’s failure to raise

  such a challenge. The record therefore establishes that Houser

  cannot make a successful ineffective assistance of counsel claim

  based on his counsel’s failure to attack the constitutionality of

  SOLSA. See Chavez-Torres, ¶ 31, 410 P.3d at 696.




                                    25
¶ 53   We therefore affirm the postconviction court’s denial of

  Houser’s request for a hearing on his claim that his counsel was

  ineffective for failing to challenge the constitutionality of SOLSA.

       3.    Failing to Argue that Section 18-7-406(1) Is Void for
                                  Vagueness

¶ 54   Houser contends that his counsel was ineffective for failing to

  argue that the offense of patronizing a prostituted child is void for

  vagueness. We disagree.

¶ 55   As discussed in Part II.B above, we conclude, as a matter of

  first impression, that the offense of patronizing a prostituted child

  under section 18-7-406(1) is not unconstitutionally vague.

  Houser’s counsel, therefore, was not deficient for failing to raise this

  novel argument. See Morris, 917 F.3d at 823. Moreover, because

  we conclude that section 18-7-406(1) is not unconstitutionally

  vague, Houser cannot demonstrate a reasonable probability that,

  but for his counsel’s failure to argue vagueness, “the result of the

  proceeding would have been different.” Strickland, 466 U.S. at 694.

¶ 56   Thus, we affirm the postconviction court’s denial of Houser’s

  request for a hearing on his claim that his counsel was ineffective

  for failing to attack section 18-7-406(1) as unconstitutionally vague.



                                    26
       4.   Failure to Argue that Houser’s Conviction Under Section
                      18-7-406(1) Violates Equal Protection

¶ 57    Houser argues that his counsel was ineffective because he did

  not present an equal protection argument. Houser asserts that he

  was denied equal protection because, even though his conduct fell

  within the meaning of “soliciting for child prostitution” under

  section 18-7-402, C.R.S. 2019, he was charged under section

  18-7-406(1) for patronizing a prostituted child, which carries a

  harsher penalty. Houser alleges that his counsel “recognized the

  offer and agreement language in the ‘prostitution by a child’

  definition was problematic. Yet, his counsel didn’t try to litigate the

  constitutionality of this language.” But the issue is not whether

  such an equal protection argument could have merit. It is whether

  counsel could be found ineffective for choosing not to present the

  argument. We disagree with Houser that his counsel’s decision

  rendered him ineffective.

¶ 58    The partial dissent asserts that Houser is nonetheless entitled

  to a hearing on his claim that his counsel was ineffective for not

  launching a constitutional attack on section 18-7-406(1), even

  though no such attack had succeeded in any reported decision at



                                    27
  the time of Houser’s trial. The partial dissent relies on the division’s

  determination in Maloy that the defendant was denied equal

  protection because, as applied to the defendant’s conduct,

  patronizing a prostituted child proscribed the same conduct as

  pandering of a child and inducement of child prostitution, even

  though the latter offenses carry lighter sentences than the former

  offense. Id. (The division in Maloy also concluded that, based on

  the facts of the case, solicitation does not proscribe the same

  conduct as patronizing a prostituted child.)

¶ 59   Had Maloy predated Houser’s trial and Houser’s counsel

  nevertheless failed to raise an as-applied equal protection challenge

  to 18-7-406(1)(a), Houser’s ineffective assistance claim may well

  have warranted a hearing to determine whether Maloy sufficiently

  foreshadowed a change in the law that would have impacted the

  outcome of Houser’s case. But the division did not decide Maloy

  until more than ten years after Houser’s trial.

¶ 60   A defense attorney is not ineffective because he or she did not

  raise an untested constitutional challenge to a criminal charge that

  is not clearly foreshadowed by then-existing case law. See

  Anderson, 393 F.3d at 754; see also Snider, 908 F.3d at 192.


                                    28
¶ 61        Houser does not point us to any foreshadowing in Colorado

  case law that would have required his counsel to argue that section

  18-7-406(1) violates equal protection. Instead, Houser merely cites

  to cases holding that unrelated statutes violate equal protection.

  For example, Houser relies on People v. Marcy, 628 P.2d 69, 71-72

  (Colo. 1981), in which the Colorado Supreme Court held that two

  murder statutes were “not sufficiently distinguishable . . . to

  warrant the substantial differential in penalty authorized by the

  statutory scheme.” Houser therefore is not entitled to relief for

  ineffective assistance of counsel because his counsel did not

  present a novel equal protection argument not “clearly

  foreshadowed” under existing law. See Venzor, 121 P.3d at 262.

¶ 62        Thus, we affirm the postconviction court’s denial without a

  hearing of Houser’s ineffective assistance claim based on his

  counsel’s failure to present an equal protection argument.

       C.     Houser Is Not Entitled to a Hearing on His Claim that His
                      Counsel Failed to Raise a Valid Defense

¶ 63        Houser further contends that he is entitled to a hearing on his

  claim that his counsel was ineffective by offering a theory of defense

  that admitted Houser’s guilt without his consent. Houser argues



                                        29
  that this tactic demonstrated that his counsel was ignorant of

  sections 18-7-406(1)(a) and 18-7-401(6). We disagree and conclude

  that his counsel’s theory of defense did not, as a matter of law,

  admit Houser’s guilt. See Venzor, 121 P.3d at 262 (“Summary

  denial of a postconviction relief motion is . . . appropriate if the

  claims raise only an issue of law . . . .”).

¶ 64   Houser’s counsel argued that, although Houser arranged for

  A.J. to visit his home, they did not have sex because A.J. refused to

  produce an ID after Houser demanded that she prove she was at

  least eighteen. According to this theory, Houser was prepared to

  pay A.J. for sex, but only if she first convinced him that she was at

  least eighteen. Defense counsel admitted that Houser agreed to

  “pay [A.J.] for her time,” but argued Houser did not pay her for sex.

  Instead, Houser’s counsel asserted that Houser paid A.J. because

  he knew “her pimp [was] in the car” and he feared for his safety if

  she walked out his door without cash in hand.

¶ 65   At the time of Houser’s trial, few Colorado appellate decisions

  addressed the offense of patronizing a prostituted child. See People

  v. Madden, 111 P.3d 452, 457 (Colo. 2005); People v. Holland, 708

  P.2d 119, 119 n.2 (Colo. 1985). And only one of the cases —


                                      30
  Madden — analyzed section 18-7-406(1)(a). See Madden, 111 P.3d

  at 457.

¶ 66   In Madden, the court reversed a defendant’s conviction for

  attempted patronizing of a prostituted child because “there was no

  evidence presented at trial that [the defendant] attempted to give

  anything of value to [the child] or to any other person in exchange

  for sex [with the child].” Id. at 460. The court held that

  “‘patronizing a prostituted child’ requires an exchange of something

  of value” for “sex with a child.” Id. at 459.

¶ 67   Under the reasoning of Madden, the jury could have acquitted

  Houser if it found he had not paid A.J. for sex. While a division of

  this court later concluded in Houser I that a “person need not

  perform a sexual act to be guilty of patronizing a prostituted child,”

  the case law at the time of Houser’s trial permitted an argument

  that a defendant could not be found liable for patronizing a

  prostituted child if he did not perform one of the prohibited acts

  with her. Houser I, ¶ 69, 337 P.3d at 1253. Counsel’s defense,

  although unpersuasive to the jury, did not amount to a guilty plea

  because it gave the jury an avenue under the existing case law to

  find Houser not guilty.


                                     31
¶ 68   Thus, we deny Houser’s claim that he is entitled to a hearing

  on his claim that his counsel was ineffective for not raising a valid

  defense. See Crim. P. 35(c)(3)(IV); see also Thomas, 867 P.2d at

  890-91.

  D.   Houser Is Entitled to a Hearing on the Merits of His Remaining
                                   Claims

          1.    Failure to Challenge Out-of-Court Identification

¶ 69   Houser argues that he is entitled to a hearing on his claim

  that his trial counsel was ineffective for failing to sufficiently

  challenge A.J.’s out-of-court identification of him and to file a

  motion to suppress the search warrant for his home premised on

  that identification. We agree.

¶ 70   Houser alleges that, instead of conducting a photo lineup,

  Mike Ryan, a Denver Police Department detective, drove with A.J. to

  Houser’s residence, improperly showed her only a single photo, and

  asked, “[I]s this the guy?” The affidavit filed in support of the

  warrant used to search Houser’s home bolsters Houser’s challenge

  to the photo identification and search of his home. It states that

  Ryan “obtained a photo of [Houser], which he showed to [A.J.].” But

  it can also be interpreted to support the prosecution’s assertion



                                      32
  that Ryan later told another officer, months after the search, that

  he “showed A.J. six photos, including [Houser’s] Colorado DMV

  photo,” one at a time.

¶ 71   Houser’s first attorney filed a motion to suppress A.J.’s out-of-

  court identification as impermissibly suggestive, but later requested

  that the motion “be tabled for the time being until Ryan shows up

  to testify.” Houser’s second attorney withdrew the motion to

  suppress during a hearing on the issue and explained to the court

  that, after discussing the photo identification with the prosecutor,

  he was satisfied — based on the prosecutor’s reputation — there

  were no issues related to the lineup.

¶ 72   Houser argues he was prejudiced because his counsel never

  called Ryan to testify whether he showed A.J. a single photo —

  which may have been impermissibly suggestive and could have

  invalidated the warrant used to search his home — or six

  photographs, as the prosecution contended.

¶ 73   Because this allegation, if true, could support a claim that his

  counsel’s conduct was deficient for failing to challenge a potentially

  improper out-of-court identification based upon a prosecutor’s

  reputation, Houser is entitled to a hearing on the merits of this


                                    33
  claim. See White, 766 P.2d at 635. Thus, we remand this claim to

  the postconviction court for a hearing on the merits.

   2.    Failure to Challenge the State’s Alleged Outrageous Conduct

¶ 74    Houser contends that he is entitled to a hearing on his claim

  that his counsel was ineffective for failing to challenge the

  prosecution’s alleged “outrageous conduct.” Houser argues that the

  prosecution “committed outrageous conduct by pretending to be the

  victim in the case, intruding on Houser’s attorney[-]client

  relationship . . . and interfering with Houser’s right to counsel.” He

  alleges, and the record reflects, that the lead police officer in the

  case, Dea Aragon, investigated Charles Leidner, Houser’s first

  attorney, for alleged witness intimidation of A.J.

¶ 75    The People contend that Aragon initiated the investigation

  after A.J.’s mother contacted the Douglas County Sheriff’s Office to

  report a threatening call from Leidner and his investigator, in which

  the men told her that, if A.J. testified, they would “drag [her] over

  the coals, embarrass her, and eat her alive.” The men also allegedly

  threatened to charge A.J. and her mother with federal tax evasion.

¶ 76    Following Aragon’s investigation, a special prosecutor filed a

  motion to disqualify Leidner from further representation of Houser.


                                     34
  Houser, then represented by conflict-free counsel, requested that

  Leidner remain his attorney. Although the court denied the

  prosecutor’s motion to disqualify Leidner, Leidner later moved to

  withdraw as Houser’s counsel. The trial court granted the motion

  and Scott Reisch succeeded Leidner as Houser’s lawyer.

¶ 77   Houser argues he was prejudiced because Reisch failed to

  argue that the prosecution’s conduct in allegedly pressuring Leidner

  to withdraw from the case was outrageous. Houser asserts that,

  “[h]ad Reisch successfully litigated this claim, it could have resulted

  in the dismissal of [the] charge[] against Houser” because the

  remedy for a prosecutor’s outrageous conduct is dismissal of the

  charges. See United States v. Russell, 411 U.S. 423, 431 (1973).

  The postconviction court denied Houser’s claim because it

  concluded that the prosecution’s conduct was not outrageous.

¶ 78   The proper question, however, is whether Houser’s allegation,

  if true, would provide a basis for an ineffective assistance claim. We

  conclude it would and, therefore, remand the claim to the

  postconviction court for a hearing on the merits.




                                    35
                             IV.   Conclusion

¶ 79   The postconviction court’s denial of Houser’s Crim. P. 35(c)

  motion is affirmed except as to Houser’s right to a hearing on his

  claims that his counsel was ineffective for (a) not challenging A.J.’s

  out-of-court identification of Houser and the search warrant resting

  on such identification and (b) not challenging the prosecution’s

  alleged outrageous conduct. The case is remanded to the

  postconviction court for a hearing on those claims.

       JUDGE FOX concurs.

       JUDGE BERGER concurs in part and dissents in part.




                                    36
       JUDGE BERGER, concurring in part and dissenting in part.

¶ 80   This is the majority’s central holding: “We hold that an

  attorney cannot be deemed ineffective solely because he or she did

  not take positions unsupported or not ‘clearly foreshadowed’ by

  then-existing law.” Supra ¶ 2. This new bright line rule is not

  consistent with Crim. P. 35(c). Unless reversed by the supreme

  court, this new rule will have long-lasting consequences that are at

  odds with the language of Crim. P. 35(c), the beneficent purposes

  underlying that rule, and the bedrock constitutional guarantee of

  reasonably effective assistance of counsel.

                       I.    Postconviction Claims

¶ 81   In his postconviction motion and on this appeal, Houser

  claims that his counsel was ineffective for failing to raise four

  constitutional arguments: (1) his conviction violated his equal

  protection rights; (2) his conviction should be vacated because the

  patronizing a prostituted child statute is unconstitutionally vague;

  (3) the Colorado Sex Offender Lifetime Supervision Act of 1998

  (SOLSA) and section 18-7-407, C.R.S. 2019, as applied to him,

  violated his substantive due process rights; and (4) his sentence

  under SOLSA violated his rights under the Eighth Amendment and


                                     37
  article II, section 20 of the Colorado Constitution.1 Although the

  majority grants limited relief to Houser and remands for an

  evidentiary hearing on certain other ineffective assistance claims, it

  rejects, without a hearing and as a matter of law, every one of the

  claims described above.

¶ 82   If any one of the constitutional claims underpinning his

  ineffective assistance of counsel claims fails, the related ineffective

  assistance claim necessarily fails as well. In that event, it would be

  impossible to satisfy the prejudice requirement under Strickland v.

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

¶ 83   But if any of Houser’s underlying constitutional claims are

  meritorious, then there is a reasonable probability that, but for

  counsel’s failure to raise them, the outcome of the trial would have

  been different. Strickland, 466 U.S. at 694-95. Thus, if any of

  Houser’s underlying constitutional claims would have succeeded,

  he must be given the opportunity, at an evidentiary hearing, to


  1 Houser also advances other claims, including direct constitutional
  claims. I agree with the majority that all but one of the direct
  constitutional claims are successive because they could have been
  brought on direct appeal. Crim. P. 35(c)(3)(VII). I also agree with
  the majority’s disposition of those claims not addressed in this
  dissent.

                                     38
  prove that his counsel’s performance was deficient. Instead, the

  majority’s newly created rule bars all of these claims.

       II.     The Majority’s New Rule Regarding Constitutional Claims is
             Inconsistent with Existing Law, Unworkable, and Unwarranted

¶ 84         The majority’s new rule cuts directly against the express

  language of Crim. P. 35(c)(2)(I), which states that “every person

  convicted of a crime is entitled as a matter of right to make

  application for postconviction review upon the grounds . . . [t]hat

  the conviction was obtained or sentence imposed in violation of the

  Constitution or laws of the United States or the constitution or laws

  of this state.”

¶ 85         Postconviction remedies are designed “to prevent

  constitutional injustice.” Edwards v. People, 129 P.3d 977, 982

  (Colo. 2006) (quoting People v. Rodriguez, 914 P.2d 230, 252 (Colo.

  1996)). A rule that would bar consideration of the merits of

  Houser’s ineffective assistance claims is inconsistent with the

  broad, remedial purposes of Crim. P. 35(c).

¶ 86         It is further inconsistent with the Sixth Amendment’s

  guarantee to criminal defendants of reasonably effective assistance

  of counsel. U.S. Const. amend. VI. A defendant is not entitled to



                                         39
  the best criminal lawyer in a given jurisdiction; a defendant is

  entitled to the “reasonably effective assistance” of counsel.

  Strickland, 466 U.S. at 687. From the established proposition that

  a defendant is entitled only to reasonably effective counsel, the

  majority reasons that in every case a lawyer’s failure to raise claims

  that have not been accepted or “clearly foreshadowed” in that

  jurisdiction (or in a controlling jurisdiction) can never constitute

  ineffective assistance. While the majority’s insistence on not raising

  the constitutionally required level of performance may help courts

  address frivolous claims more efficiently, the cure is worse than the

  disease.

¶ 87   First, and contrary to the majority opinion, it is entirely

  conceivable that the failure to raise a meritorious constitutional

  claim could be objectively unreasonable, even if such claim had not

  been previously road-mapped for counsel in a controlling, published

  decision. The determination of whether counsel’s failure to raise

  such a claim was reasonable “present[s] mixed questions of law and

  fact.” Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). And the

  Colorado Supreme Court has recognized that appellate courts will

  rarely be in the position to decide such inherently factual questions.


                                     40
  Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). While sometimes

  the trial record will clearly demonstrate lack of prejudice, “[u]nless

  the issue was expressly litigated . . . , it is far less likely that a trial

  record will demonstrate that potentially prejudicial acts or

  omissions of counsel were not only strategic choices but were ones

  that were reasonable in light of the law and facts.” Id. Thus, we

  cannot reject such inherently factual claims as a matter of law.

¶ 88   Second, an allegation of ineffective assistance premised on

  counsel’s failure to raise a constitutional attack on the conviction

  does not without more (actually, much more) establish ineffective

  assistance. The majority states that anything less than its

  categorical prohibition would result in a situation in which “a

  defendant would be entitled to a hearing on any Crim. P. 35(c) claim

  for ineffective assistance merely by arguing that counsel failed to

  raise a constitutional argument with any potential merit.” Supra

  ¶ 34. But that is not the case.

¶ 89   In order to be entitled to a hearing, the defendant must first

  establish that the underlying constitutional claim is meritorious

  and that, but for counsel’s failure to raise it, the outcome of the

  proceeding would have been different. Strickland, 466 U.S. at


                                       41
  694-95. If a controlling court such as the United States Supreme

  Court or the Colorado Supreme Court has not accepted the

  constitutional theory, the task is even more difficult, and in the vast

  majority of cases, the claim will fail. But the fact that the burden is

  daunting, and that most such challenges will fail for any number of

  reasons, is not a warrant for creating, as the majority has done, a

  rule that prohibits, as a matter of law, all such challenges.

¶ 90   Once the defendant has established the merits of the

  underlying constitutional claim, then the defendant must meet the

  high bar of establishing that counsel was deficient in failing to raise

  that claim. Id. at 687-91. As discussed above, this determination

  is properly the subject of a hearing.

¶ 91   The majority contends that this approach would “lower the bar

  for proving professional negligence.” Supra ¶ 36. Apart from the

  fact that this is simply irrelevant to the question of whether Houser

  received effective assistance of counsel, it is untrue. Even when the

  defendant has established the merits of the underlying claim and a

  reasonable probability that the failure to raise the claim affected the

  outcome of the proceedings, the defendant must still establish, as




                                    42
  always, that the failure to raise such claim “fell below an objective

  standard of reasonableness.” Strickland, 466 U.S. at 688.

¶ 92   To reach its overbroad holding, the majority relies on non-

  controlling cases from other jurisdictions purportedly holding that a

  “lawyer does not perform deficiently by ‘failing to raise novel

  arguments that are unsupported by then-existing precedent.’”

  Supra ¶ 30 (quoting United States v. Morris, 917 F.3d 818, 823 (4th

  Cir. 2019)). But unlike the majority, many of these jurisdictions

  have also recognized the limits of such a broad rule and the

  nuances associated with these ineffective assistance challenges.

  For example, in Morris, the court stated that “counsel sometimes

  will be required to make arguments ‘even in the absence of decisive

  precedent.’” Morris, 917 F.3d at 823-24 (quoting United States v.

  Carthorne, 878 F.3d 458, 465-66 (4th Cir. 2017)). Indeed, unlike

  the majority, the Seventh Circuit has recognized that a lack of

  precedent supporting a defendant’s ineffective assistance claim is

  “only half the picture,” and that a “dearth” of precedent should have

  indicated to defense counsel that the facts and circumstances of

  that case were “unusual” and distinguishable from existing case




                                    43
  law. Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013)

  (emphasis added).

¶ 93   If any of Houser’s constitutional claims that underlie his

  ineffective assistance of counsel claims have merit, he should be

  given an opportunity to convince a district court judge, based on

  evidence, including expert testimony, that the failure to raise those

  meritorious claims constituted deficient performance under the first

  prong of Strickland.

¶ 94   I now proceed to analyze the constitutional claims that Houser

  claims should have been advanced on his behalf but were not.2

                         III.   Equal Protection

¶ 95   Houser claims that he was deprived of equal protection of the

  law when he was punished for violating the statute that prohibits

  patronizing a child prostitute when that same conduct is also

  criminalized by another statute that carries a much lower penalty.




  2 Because the constitutional questions that are determinative of
  whether Houser can prove prejudice under the second prong of
  Strickland v. Washington, 466 U.S. 668 (1984), are questions of law,
  there is no reason to remand to the postconviction court to resolve
  them. This court stands in as good a position as the postconviction
  court in that respect.

                                    44
¶ 96   This is not a novel constitutional claim. The Colorado

  Supreme Court has repeatedly held that “Colorado’s guarantee of

  equal protection is violated where two criminal statutes proscribe

  identical conduct, yet one punishes that conduct more harshly.”

  Dean v. People, 2016 CO 14, ¶ 14.

¶ 97   More specifically, Houser argues that his conviction violates

  his equal protection rights under the Colorado Constitution because

  the patronizing statute criminalizes the same conduct as the

  soliciting a child prostitute statute, while imposing a harsher

  penalty.3

¶ 98   The statutes, however, differ in a key respect. Patronizing

  requires that the child prostitute actually perform, offer, or agree to

  perform a sex act in exchange for money. § 18-7-406(1)(a), C.R.S.

  2019; see § 18-7-401(6), (7), C.R.S. 2019. Soliciting does not. § 18-


  3Unlike the United States Constitution, the Colorado Constitution
  contains no express equal protection clause, but the Colorado
  Supreme Court has construed the due process clause of the
  Colorado Constitution to imply a similar guarantee. Dean v. People,
  2016 CO 14, ¶ 11. Colorado courts have construed the equal
  protection guarantees under the Colorado Constitution more
  broadly than those available under the United States Constitution.
  People v. Stewart, 55 P.3d 107, 114 (Colo. 2002) (citing United
  States v. Batchelder, 442 U.S. 114 (1979)).


                                    45
  7-402(1)(a), C.R.S. 2019. Thus, a defendant is punished more

  severely under the patronizing statute for successfully inducing the

  child to respond to an offer for money in exchange for sex.4 “The

  general assembly may establish more severe penalties for acts that

  it believes have graver consequences, even if the differences are only

  a matter of degree.” People v. Stewart, 55 P.3d 107, 114-15 (Colo.

  2002). Accordingly, I would reject this specific claim.

¶ 99   But, as analyzed in the recent case of People v. Maloy, 2020

  COA 71, other child prostitution statutes prohibit the same conduct

  engaged in by Houser but impose non-SOLSA penalties. A person

  patronizes a child prostitute in violation of section 18-7-406(1)(a) if

  such person “[e]ngages in an act which is prostitution of a child,” as

  defined in section 18-7-401(7), or an act that is prostitution “by a

  child,” as defined in section 18-7-401(6). In Maloy, the defendant

  was convicted of patronizing a child prostitute under the

  “prostitution of a child” definition for inducing a child to perform

  certain sexual acts (with third persons, not the defendant), or



  4“[A]ctual performance of a sexual act is not necessary; a mere offer
  or agreement to perform is sufficient, provided money has been
  promised.” People v. Houser, 2013 COA 11, ¶ 84.

                                     46
  inducing her to allow others to perform such acts, by coercion or

  threat or intimidation or in exchange for money or other thing of

  value. Id. at ¶ 21 (citing § 18-7-401(7)). The division concluded

  that the conviction violated equal protection principles under the

  Colorado Constitution because section 18-7-403(1)(a), C.R.S. 2019

  (pandering of a child), and section 18-7-405.5, C.R.S. 2019

  (inducement of child prostitution), as applied to the defendant,

  criminalize the same conduct but do not require an indeterminate

  life sentence under SOLSA. Id. at ¶ 21.

¶ 100   Houser was convicted of patronizing under the “prostitution by

  a child” subsection, but this does not change the result of the equal

  protection analysis.

             “Prostitution by a child” means either a child
             performing or offering or agreeing to perform
             any act of sexual intercourse, fellatio,
             cunnilingus, masturbation, or anal intercourse
             with any person not the child’s spouse in
             exchange for money or other thing of value or
             any person performing or offering or agreeing
             to perform any act of sexual intercourse,
             fellatio, cunnilingus, masturbation, or anal
             intercourse with any child not the person’s
             spouse in exchange for money or other thing of
             value.

  § 18-7-401(6).



                                   47
¶ 101   This language is, admittedly, confusing. How can someone

  other than a child prostitute engage in an act that is “prostitution

  by a child?” As I understand it, section 18-7-406(1)(a) and section

  18-7-401(6) together prohibit any action that results in an act of

  prostitution by a child. In this case, the jury found that Houser

  engaged in some act that resulted in a child offering or agreeing to

  perform a sex act in exchange for money.5 Like in Maloy, this

  conduct could also form the basis for non-SOLSA charges under the

  pandering and inducement statutes.

¶ 102   The pandering statute prohibits someone, “for money or other

  thing of value,” from “[i]nducing a child by menacing or criminal

  intimidation to commit prostitution.”6 § 18-7-403(1)(a). Admittedly,

  Houser did not act “for money or other thing of value.” Nor did he

  realize an act of child prostitution through “menacing or

  intimidation.” But, for the reasons described in Maloy, these

  distinctions are meaningless for purposes of the equal protection


  5 On this record, we cannot know whether the jury also concluded
  that Houser had sex with A.J.
  6 Pandering, under section 18-7-403(1)(a), C.R.S. 2019, is a class 2

  felony, but it is not an offense subject to punishment under the
  Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA).
  §§ 18-1.3-1003(5)(a), -1004(1)(a), C.R.S. 2019.

                                    48
  analysis. Maloy, ¶¶ 27-29. Houser should not be subjected to

  greater punishment when his conviction required proof of fewer

  elements and his conduct was less blameworthy than that of

  someone convicted of pandering. Id. at ¶¶ 28-29.

¶ 103   A person commits inducement of child prostitution if such

  person, “by word or action, other than [by menacing or criminal

  intimidation], induces a child to engage in an act which is

  prostitution by a child.” § 18-7-405.5. As discussed above, that is

  exactly the conduct Houser was convicted of here.

¶ 104   Accordingly, and consistent with the analysis in Maloy,

  Houser’s conviction and sentence for patronizing a child prostitute

  violated his right to equal protection of the law. If, but only if,

  Houser can establish that his counsel’s performance was deficient,

  he is entitled to relief.

                       IV.    Substantive Due Process

¶ 105   SOLSA and section 18-7-407, as applied to Houser, violate his

  substantive due process rights.

¶ 106   This, again, is not a novel claim. Indeed, variations of this

  argument are raised in almost every appeal to this court in which a

  SOLSA sentence was imposed. While other divisions of this court


                                      49
  have rejected variations of this argument, they have not addressed

  the facts and circumstances presented here.

¶ 107   Various divisions of this court have rejected facial substantive

  due process challenges to SOLSA.7 However, many did so without

  independent analysis, relying only on the reasoning of earlier

  divisions. People v. Knobee, 2020 COA 7, ¶ 63; People v. Sabell,

  2018 COA 85; People v. Relaford, 2016 COA 99, ¶ 72; People v.

  Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250 P.3d 668, 679

  (Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App.

  2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). The

  lead cases, People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App.

  2003), and People v. Strean, 74 P.3d 387, 393 (Colo. App. 2002),

  addressed only facial challenges.8 The Colorado Supreme Court

  has never weighed in on these questions. Accordingly, Houser’s

  counsel could have raised the narrow, as-applied challenge that



  7 Some of these cases, e.g., People v. Sabell, 2018 COA 85, purport
  to address an as-applied challenge to SOLSA, but they do not
  engage in any as-applied analysis, and instead simply rely on the
  decisions of earlier divisions to reject the claim.
  8 People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003),

  addresses as-applied challenges to SOLSA, but not an as-applied
  substantive due process challenge.

                                    50
  Houser now raises on appeal without departing from the broader

  holdings in Oglethorpe and Strean.

¶ 108   “[T]he touchstone of due process is protection of the individual

  against arbitrary action of government,” County of Sacramento v.

  Lewis, 523 U.S. 833, 845 (1998) (citation omitted), and “sanctions

  which are downright irrational,” Hudson v. United States, 522 U.S.

  93, 103 (1997). Substantive due process prohibits the government

  from engaging in conduct that shocks the conscience or interferes

  with rights implicit in the concept of ordered liberty. People v.

  Garlotte, 958 P.2d 469, 474 (Colo. App. 1997). When no

  fundamental right is implicated, substantive due process requires

  that legislation bear a rational relationship to a legitimate

  governmental interest. People v. Zinn, 843 P.2d 1351, 1353 (Colo.

  1993).

¶ 109   Under SOLSA and section 18-7-407, which prohibited Houser

  from raising the defense that he believed A.J. was of age at trial,

  Houser was convicted of the felony of patronizing a child prostitute

  and sentenced to an indeterminate life sentence without any proof

  that he had intended to patronize a child prostitute. If he had only

  been found guilty of patronizing an adult prostitute, he would have


                                     51
  been convicted of less than a misdemeanor — a class 1 petty

  offense. § 18-7-205, C.R.S. 2006. Thus, section 18-7-407 imposed

  strict liability for an element of the offense that transformed

  Houser’s crime from a petty offense to a felony bearing an

  indeterminate life sentence.

¶ 110   In my view, imposing an indeterminate life sentence without

  any proof that Houser actually intended to commit the element of

  the crime requiring the indeterminate life sentence both shocks the

  conscience and offends notions of ordered liberty.9

¶ 111   Moreover, under the facts of this case, the relationship

  between Houser’s conduct that was proved at trial and the

  indeterminate life sentence exceeds the bounds of rationality and

  thus the protections of the Due Process Clause. SOLSA’s

  indeterminate sentencing requirement is based on the presumption


  9 Questions regarding the constitutionality of strict liability criminal
  statutes that impose substantial penalties are complex, and many
  related questions remain unresolved by both the United States
  Supreme Court and the Colorado Supreme Court. See People v.
  Manzo, 144 P.3d 551, 554-59 (Colo. 2006) (recognizing that public
  welfare offenses are “a constitutionally permissible type of strict
  liability offense”); Alan C. Michaels, Constitutional Innocence, 112
  Harv. L. Rev. 828, 834 (1999). But here, the issue is quite narrow
  and does not require an extensive analysis of the limits of the
  General Assembly’s power to define strict liability crimes.

                                     52
  that the “majority” of sex offenders, if untreated, are likely to

  reoffend. § 18-1.3-1001, C.R.S. 2019. But in this case, there has

  never been an adjudication that Houser intended to patronize a

  child prostitute. Nevertheless, SOLSA presumes that he is likely to

  again act as a sex offender if untreated and requires an

  indeterminate life sentence or, in the discretion of the district court,

  indeterminate probation. Without proof of intent, there is no

  rational relationship between the facts proved at trial and the

  sentence required by SOLSA.

¶ 112   Irrespective of whether the Due Process Clause limits a state’s

  power to define a strict liability defense that imposes a life sentence,

  here SOLSA and section 18-7-407 create the perverse and patently

  irrational result by which a defendant cannot defend himself at trial

  by arguing that he never intended to commit the offense, but then

  can only get out of prison and off parole if he admits to that same

  offense.10 The Due Process Clause demands more than such a

  Kafkaesque result.


  10This is materially different from the ordinary SOLSA situation in
  which a defendant is convicted of an offense that prescribes mens
  rea components while the defendant maintains his innocence.


                                     53
               V.   Grossly Disproportionate Punishment

¶ 113   Houser argues that his counsel was ineffective at sentencing

  because his counsel failed to argue that an indeterminate sentence

  was “not proportionate to his actual criminal conduct” in violation

  of the Eighth Amendment. The effective life sentence imposed on

  Houser raises obvious proportionality concerns. The majority does

  not specifically refer to this claim but presumably rejects it based

  on its newly formulated rule.

¶ 114   While I agree with Houser that his sentence creates the

  inference of gross disproportionality, I cannot, on this record,

  conclude that his sentence violates the Eighth Amendment. That

  determination requires evidence to be presented to the

  postconviction court.

¶ 115   The legislature’s authority to prescribe punishment “is limited

  by the principle of proportionality that is embedded in the

  constitutional prohibition against the infliction of cruel and

  unusual punishment.” Wells-Yates v. People, 2019 CO 90M, ¶ 1.




  Here, no court has ever adjudicated whether Houser ever had any
  intent to patronize a child prostitute.


                                    54
  The Eighth Amendment prohibits “not only barbaric punishments,

  but also sentences that are disproportionate to the crime

  committed.”11 Id. at ¶ 5 (quoting Solem v. Helm, 463 U.S. 277, 284

  (1983)). “Simply put . . . the punishment should fit the crime.” Id.

  at ¶ 1.

¶ 116   In analyzing whether the punishment fits the crime, courts

  must first weigh the gravity or seriousness of the offense and the

  harshness of the penalty and determine whether this comparison

  leads to an inference of gross disproportionality (abbreviated

  proportionality review). Id. at ¶¶ 11-15. If it does, then courts must

  consider the sentences for other crimes in the same jurisdiction and

  sentences for the same crime in other jurisdictions (extended

  proportionality review). Id. at ¶¶ 15-17.

             A.   The Gravity or Seriousness of the Offense

¶ 117   To weigh the gravity or seriousness of the offense, courts must

  consider “the harm caused or threatened to the victim or society,”

  as well as the “culpability of the offender.” Id. at ¶ 12 (quoting




  11Article II, section 20 of the Colorado Constitution is identical to
  the Eighth Amendment.


                                    55
  Solem, 463 U.S. at 292).12 Without a doubt, patronizing a child

  prostitute threatens serious harm to both the victim and society.

  The defendant’s moral or criminal culpability, however, depends

  largely on the defendant’s state of mind. See Solem, 463 U.S. at

  293; Wells-Yates, ¶ 12.

¶ 118   In this case, we know only that Houser intended to patronize a

  prostitute. Because section 18-7-407 precluded Houser from

  raising the defense that he did not know A.J. was underage, the

  jury did not reach the question of whether Houser knew A.J. was

  underage, and we cannot reach that conclusion. While this

  conduct is illegal, it is only a petty offense, whereas patronizing a

  child prostitute is a class 3 felony punishable by an indeterminate

  sentence in prison.

                   B.    The Harshness of the Penalty

¶ 119   Houser’s indeterminate life sentence is one of the harshest

  sentences available under Colorado’s criminal code because it is, in

  effect, a life sentence. While we must consider Houser’s parole

  eligibility in weighing the severity of the sentence, Wells-Yates, ¶ 14,


  12Unlike some crimes, patronizing a child prostitute is not per se
  grave or serious. Wells-Yates v. People, 2019 CO 90M, ¶ 65.

                                     56
  we must also acknowledge the sentence’s upper limit and the

  realities of a SOLSA sentence.

¶ 120   In the equal protection context, courts “weigh[] the relative

  harshness of a penalty by looking principally to the overall potential

  term of imprisonment, not the timing of parole eligibility.” Dean,

  ¶ 28. I see no reason not to do so here, and the upper limit is

  incarceration for the rest of Houser’s natural life.

¶ 121   Furthermore, under SOLSA, a sex offender may not be

  released on parole unless the parole board determines that the

  offender “has successfully progressed in treatment.” § 18-1.3-

  1006(1)(a), C.R.S. 2019. If Houser continues to maintain, as he has

  since he was charged, that he intended only to patronize an adult

  prostitute — a claim that has never been adjudicated by any court

  — and has no sexual interest in children, it is difficult to see how he

  could ever successfully progress in treatment and thus be released

  from prison.

¶ 122   Weighing these factors, I conclude that sentencing Houser to

  an indeterminate life sentence without establishing that he

  intended to patronize a child prostitute leads to an inference of




                                     57
  gross disproportionality between the gravity or seriousness of the

  crime and the harshness of the penalty.

¶ 123   On this record, however, I cannot complete the second step of

  the analysis mandated by Wells-Yates. “In the absence of a need for

  . . . a detailed comparison of sentences imposed for . . . crimes in

  this or other jurisdictions, an appellate court is as well positioned

  as a trial court to conduct a proportionality review.” People v.

  Gaskins, 825 P.2d 30, 37-38 (Colo. 1992), abrogated on other

  grounds by Wells-Yates, 2019 CO 90M. Under Wells-Yates, ¶ 17,

  the determination of whether Houser’s sentence constitutes

  unconstitutionally excessive punishment requires an analysis of the

  sentences for other crimes in the same jurisdiction and sentences

  for the same crime in other jurisdictions — facts not in the record

  before us.

                             VI.   Conclusion

¶ 124   For these reasons, I would remand to the postconviction court

  for a determination of whether Houser’s counsel was deficient for

  failing to raise equal protection and substantive due process

  challenges to his conviction and sentence. If the postconviction

  court determined based on evidence presented at a hearing that


                                    58
  counsel provided ineffective assistance in failing to raise these

  claims, Houser would be constitutionally entitled to relief.

¶ 125   On the Eighth Amendment claim, I would remand to the

  postconviction court to conduct an extended proportionality review.

  If the postconviction court then concluded that the sentence was

  unconstitutionally disproportionate, it would be required to hold a

  hearing to determine whether Houser’s counsel was deficient for

  failing to raise an Eighth Amendment claim.

¶ 126   I respectfully dissent from the majority’s contrary disposition.




                                    59
