         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
                                                          November 29, 2018

                               2018COA168

No. 16CA1165, People v. Lancaster — Criminal Procedure —
Appearance of Counsel — Termination of Representation;
Attorneys and Clients — Ineffective Assistance of Counsel

     A criminal defendant and his trial counsel executed a fee

agreement providing that the representation of counsel terminates

at the conclusion of trial. Following trial, trial counsel informed

defendant that he would not represent him on appeal, but trial

counsel did not move to withdraw from the representation.

Defendant did not thereafter timely file a notice of direct appeal.

     In this opinion, the division addresses an issue of first

impression: whether trial counsel’s failure to perfect the defendant’s

appeal constituted ineffective assistance of counsel under Strickland

v. Washington, 466 U.S. 668 (1984), such that defendant is entitled

to file his direct appeal out of time. The division concludes that,
under People v. Baker, 104 P.3d 893 (Colo. 2005), trial counsel’s

representation of a criminal defendant terminates only as provided

under Crim. P. 44(e), notwithstanding the fee agreement, and,

therefore, trial counsel’s duty to perfect the defendant’s appeal is

not discharged until the representation terminates pursuant to

Crim. P. 44(e).
COLORADO COURT OF APPEALS                                     2018COA168


Court of Appeals No. 16CA1165
Jefferson County District Court No. 06CR1949
Honorable Todd L. Vriesman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry Gene Lancaster,

Defendant-Appellant.


                              ORDER REVERSED

                                  Division I
                         Opinion by JUDGE WELLING
                       Taubman and Bernard, JJ., concur

                        Announced November 29, 2018


Cynthia H. Coffman, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado,
for Defendant-Appellant
¶1    Defendant, Larry Gene Lancaster, contends that the district

 court erroneously denied his Crim. P. 35(c) motion alleging that his

 trial counsel was ineffective for failing to perfect his appeal. We

 agree and, therefore, reverse the district court’s order denying

 Lancaster’s Crim. P. 35(c) motion and order that Lancaster is

 entitled to file his direct appeal out of time.

                            I.    Background

¶2    In 2006, Lancaster was arrested after a teenage boy reported

 that Lancaster had provided him with marijuana and alcohol and

 initiated sexual contact. A second teenage boy later came forward

 with similar allegations. Lancaster was charged with sexual assault

 on a child (two counts), bribing a witness or victim (two counts),

 sexual assault, unlawful sexual contact, and contributing to the

 delinquency of a minor.

¶3    In May 2007, Lancaster went to trial. He was represented at

 trial by Steven Newell. Newell and Lancaster executed a fee

 agreement detailing the scope of Newell’s representation. The

 termination provision of that fee agreement provided as follows:

            Under Colorado Court rules, representation is
            terminated at the conclusion of trial court
            proceedings, which essentially is after a


                                     1
            finding of not guilty or a sentencing, unless
            otherwise directed by the Court or by
            agreement between you and Newell Vonachen
            and Weeks to represent you beyond that point.

¶4    The jury ultimately found Lancaster guilty on six of the seven

 counts. In October 2007, he received an indeterminate sentence of

 fourteen years to life. In December 2007, Lancaster filed a motion

 requesting additional presentence confinement credit. In that

 motion, Lancaster described himself as pro se. Neither he nor

 Newell filed a notice of appeal.

¶5    In September 2010, Lancaster filed a pro se Crim. P. 35(c)

 motion alleging that his trial counsel had been constitutionally

 ineffective by failing to file a notice of appeal. In his motion,

 Lancaster requested the appointment of postconviction counsel.

 The district court appointed the public defender to represent him in

 the postconviction proceedings.

¶6    Neither the public defender nor the district court took any

 action on Lancaster’s Crim. P. 35(c) motion for more than five years.

 In February 2016, sixty-four months after Lancaster’s original

 motion was filed, postconviction counsel filed a supplemental Crim.

 P. 35(c) motion. In the supplemental motion, Lancaster renewed



                                     2
 the ineffective assistance of trial counsel claim from his September

 2010 motion and added five additional claims. The district court

 ruled that the additional claims were time barred, but it held an

 evidentiary hearing on Lancaster’s first claim — that his trial

 counsel’s failure to perfect his appeal deprived him of

 constitutionally effective trial counsel. As reflected in the district

 court’s subsequent order, Lancaster based his claim on “ABA

 recommended standards regarding criminal justice practice,” not

 “Crim. P. 44 or . . . case law regarding ineffective assistance of

 counsel.”

¶7    Newell and Lancaster testified at the hearing. In a four-page

 order issued on May 26, 2016, the district court found that

 Lancaster had met with Newell after his conviction but before

 sentencing and stated his desire to appeal his conviction. The

 district court also found that Newell met with Lancaster three times

 after trial, during which time Newell “made clear, in writing and

 verbally, that he would not act as [Lancaster’s] attorney for an

 appeal.” Based on its conclusion that Newell’s representation

 terminated before the alleged ineffective assistance occurred, the




                                     3
 district court denied Lancaster’s ineffective assistance of trial

 counsel claim.

¶8    This appeal followed.

                              II.   Analysis

¶9    On appeal, Lancaster relies on People v. Baker, 104 P.3d 893

 (Colo. 2005), contending that Newell was constitutionally ineffective

 in failing to file a notice of appeal on his behalf. The People respond

 that Lancaster’s ineffective assistance claim must fail because

 Newell’s attorney-client relationship with Lancaster terminated

 pursuant to the undisputed terms of the fee agreement after

 Lancaster was sentenced on October 1, 2007. In addition, the

 People contend that Baker is distinguishable. We are unpersuaded

 by either of the People’s contentions and conclude that Newell’s

 failure to either file a notice of appeal on Lancaster’s behalf or

 withdraw pursuant to Crim. P. 44(d) and secure the appointment of

 the public defender to represent Lancaster on direct appeal

 constituted ineffective assistance of trial counsel under Strickland v.

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




                                    4
                                A.       Law

                  1.   Ineffective Assistance on Appeal

¶ 10   The Sixth Amendment of the United States Constitution and

  article II, section 16 of the Colorado Constitution guarantee the

  effective assistance of counsel. Strickland, 466 U.S. at 686; Lanari

  v. People, 827 P.2d 495, 500 (Colo. 1992). Claims of ineffective

  assistance of counsel are governed by the test set forth in

  Strickland. Under this test, a defendant must show that (1)

  counsel’s representation “fell below an objective standard of

  reasonableness” and (2) counsel’s deficient performance prejudiced

  the defendant. Strickland, 466 U.S. at 688, 694.

¶ 11   Where a defendant’s claim is that trial counsel failed to perfect

  an appeal, we do not analyze the merits of the defendant’s appellate

  claims. See People v. Long, 126 P.3d 284, 286-87 (Colo. App. 2005).

  Rather, a defendant who shows that counsel performed deficiently

  in failing to perfect the defendant’s appeal will have established

  both prongs of the Strickland test. Id. In Colorado, “the right to

  direct appeal of a criminal conviction is fundamental,” Peterson v.

  People, 113 P.3d 706, 708 (Colo. 2005), and “a lawyer who

  disregards specific instructions from the defendant to file a notice of


                                     5
  appeal acts in a manner that is professionally unreasonable,” Roe v.

  Flores-Ortega, 528 U.S. 470, 477 (2000). In such cases, “[t]he

  prejudice resulting from the failure to file a notice of appeal is not in

  the outcome of the proceeding itself, but in the forfeiture of the

  proceeding itself.” Long, 126 P.3d at 286-87 (citing Flores-Ortega,

  528 U.S. at 483).

                                2.    Baker

¶ 12   The Baker court determined that good cause existed under

  C.A.R. 26(b) to permit the defendant to pursue an untimely direct

  appeal because trial counsel’s failure to perfect the defendant’s

  appeal constituted ineffective assistance of counsel under

  Strickland. 104 P.3d at 898. Baker warrants close examination.

¶ 13   Baker was convicted of multiple felony offenses. After

  sentencing, he prepared a handwritten notice of appeal, which he

  showed to his trial counsel. Baker and his counsel agreed that

  counsel would not represent Baker on appeal, but counsel offered

  to type and submit Baker’s notice of appeal “as a courtesy.” Id. at

  895. But counsel ultimately failed to file the notice of appeal in the

  correct court, and Baker’s appeal was thus not perfected. Id.




                                     6
¶ 14    Two years later, after Baker learned that the notice of appeal

  had been incorrectly filed in the district court, he filed a new notice

  of appeal. This court issued an order directing Baker to show cause

  why the notice of appeal should not be dismissed for lack of

  jurisdiction due to its untimeliness. Baker argued in response that

  dismissal of his appeal would be unfairly prejudicial, as the failure

  to file a timely notice of appeal was caused by the ineffective

  assistance of his trial counsel, who had failed to perfect his direct

  appeal. A division of this court dismissed his appeal as untimely.

  Id.

¶ 15    Baker then petitioned the supreme court for relief pursuant to

  C.A.R. 21. The supreme court issued a rule to show cause why his

  appeal should not be accepted and ultimately concluded that the

  court of appeals abused its discretion in rejecting Baker’s appeal. It

  held that, notwithstanding counsel’s agreement with Baker that he

  would not represent him on appeal, Crim. P. 44(e) dictated that

  counsel’s responsibilities to his client did not end at sentencing. Id.

  at 896. Crim. P. 44(e) provides as follows:

             (1) Unless otherwise directed by the trial
             court or extended by an agreement between
             counsel and a defendant, counsel’s


                                     7
             representation of a defendant, whether
             retained or appointed, shall terminate at the
             conclusion of trial court proceedings and after
             a final determination of restitution. Trial court
             proceedings shall conclude at the point in
             time:

             (I)  When dismissal is granted by the court
             and no timely appeal has been filed;

             (II) When an order enters granting a deferred
             prosecution, deferred sentence, or probation;

             (III) After a sentence to incarceration is
             imposed upon conviction when no motion has
             been timely filed pursuant to Crim. P. 35(b) or
             such motion so filed is ruled on; or

             (IV) When a notice of appeal is filed by the
             defendant.

¶ 16   In Baker, trial court proceedings had not concluded within the

  meaning of subsection (I), (II), or (III) when the then-applicable

  forty-five-day period for Baker to file a notice of appeal under C.A.R.

  4(b) expired.1 Nor had appellate counsel been appointed. The

  supreme court held that Baker’s trial counsel had, therefore,

  provided constitutionally ineffective assistance under Strickland in

  failing to properly file Baker’s notice of appeal. The supreme court


  1In 2011, the rule was amended to allow forty-nine days. Rule
  Change 2011(19), Colorado Appellate Rules (Amended and Adopted
  by the Court En Banc, Dec. 14, 2011), https://perma.cc/KLV3-
  S9CE.

                                     8
  considered trial counsel’s ineffective assistance “as a factor

  contributing to a finding of good cause” for permitting Baker to

  pursue an untimely direct appeal. Id. at 897.

                 B.    Reversal Is Required Under Baker

¶ 17   On appeal, the People contend that Newell’s failure to file a

  notice of appeal on Lancaster’s behalf was not ineffective assistance

  because Newell’s representation of him terminated when Lancaster

  was sentenced on October 1, 2007. The People, in arguing that the

  attorney-client relationship terminated before the alleged ineffective

  assistance occurred, rely on the termination provision of the fee

  agreement as well as Lancaster’s testimony describing his

  understanding of when Newell’s representation of him ended. In

  light of Baker, however, we conclude that Newell’s representation of

  Lancaster did not terminate when the People contend, but instead,

  as prescribed by Crim. P. 44(e), continued through the deadline for

  filing a notice of appeal.

  1.    The Termination of Newell’s Attorney-Client Relationship with
            Lancaster is Controlled by Crim. P. 44(e), Not the Fee
                                 Agreement

¶ 18   In Baker, the supreme court held that, notwithstanding an

  agreement between a defendant and trial counsel providing that


                                     9
counsel would not represent the defendant on appeal, Crim. P. 44(e)

dictates when the representation terminates. See Baker, 104 P.3d

at 896 (“Even though counsel may have mistakenly believed that

because he had not agreed to represent Baker on appeal, his

responsibilities to his client ended at sentencing, . . . Crim. P. 44(e)

provides otherwise.”). Termination of representation pursuant to

Crim. P. 44(e) requires the occurrence of an event set forth in

subsections (I) through (IV) unless “otherwise directed by the trial

court or extended by an agreement between counsel and a

defendant.” (Emphasis added.) Crim. P. 44(e) does not, however,

contemplate any exception in cases where counsel and the

defendant have agreed to terminate the representation at an earlier

date — as in Baker and this case. To terminate representation

earlier requires leave of the court. See Crim. P. 44(d)(1).2




2 If Newell did not wish to file a notice of appeal on Lancaster’s
behalf, Newell could have discharged his duty to Lancaster by
timely moving to withdraw (for instance, at sentencing) and
requesting the appointment of the public defender to represent
Lancaster on appeal, as Lancaster automatically qualified for the
services of the public defender by virtue of his custodial status
following sentencing. Ronquillo v. People, 2017 CO 99, ¶ 34.

                                   10
¶ 19   In their brief on appeal, the People do not discuss Crim. P. 44.

  Instead, the People argue that Lancaster’s testimony establishes

  that Newell’s representation of him terminated in accordance with

  the fee agreement. Specifically, they point to Lancaster’s testimony

  at his Crim. P. 35(c) hearing in which he stated that, having met

  with Newell prior to his sentencing hearing, he understood that

  Newell would provide him no further assistance. But we disagree

  that the attorney-client relationship terminated based upon

  Lancaster’s subjective understanding.3

¶ 20   In support of their position, the People cite to People v.

  Bennett, 810 P.2d 661, 664 (Colo. 1991) — a civil case — for the

  proposition that counsel’s duty to a client continues “until the client

  clearly understands, or reasonably should understand, that the

  relationship is no longer to be depended upon.” This is not the

  applicable standard in a criminal case, however. Were it the

  standard, Crim. P. 44 subsections (d) (withdrawal of counsel) and

  (e) (termination of representation) would be rendered superfluous.


  3 We note that, although not raised by either party on appeal, the
  record shows that the district court did not discharge its duty at
  sentencing, pursuant to Crim. P. 44(e)(2), to “inform the defendant
  when representation shall terminate.”

                                    11
  See Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992,

  995 (Colo. 2003) (interpretations that render statutory provisions

  superfluous should be avoided); see also People v. Bueno, 2018 CO

  4, ¶ 18 (rules of criminal procedure are construed employing the

  same interpretive rules applicable to statutory construction). Yet

  the People, in their appellate brief, do not attempt to reconcile their

  position with Crim. P. 44. However, we conclude that Crim. P. 44(e)

  is dispositive on the issue of when Newell’s representation of

  Lancaster terminated.

            2.    Baker Is Not Meaningfully Distinguishable

¶ 21   The People contend that Baker is distinguishable, in any

  event. They contend that Baker was “[b]ased on” the fact that

  Baker’s trial counsel agreed to submit his notice of appeal but then

  failed to do so. They argue that, because Newell never agreed to

  submit Lancaster’s notice of appeal, there was no detrimental

  reliance and, therefore, Baker is inapposite. While we agree that

  Lancaster’s situation is different from Baker in this way, we

  disagree that trial counsel’s agreement in this regard was material

  to the holding in Baker.




                                    12
¶ 22   Trial counsel’s agreement to submit the notice of appeal was

  immaterial to the outcome in Baker. Our supreme court held that

  trial counsel was obligated to ensure that Baker’s appeal was

  perfected because he was counsel of record when the period for

  filing a notice of appeal under C.A.R. 4(b) expired. 104 P.3d at 896.

  A careful reading of Baker makes clear that its holding in no way

  hinged on Baker’s counsel’s agreement to file the notice of appeal as

  a courtesy. Instead, the supreme court explained that trial counsel

  remained Baker’s counsel of record because appellate counsel had

  not been appointed, trial counsel had not moved to withdraw, and

  the representation had not terminated pursuant to Crim. P. 44(e).

  See id. at 896-97. Trial counsel’s agreement to type and submit

  Baker’s notice of appeal was immaterial to the holding because the

  court concluded that counsel had a duty to ensure that Baker’s

  appeal was perfected. See id.

¶ 23   Baker is not, therefore, meaningfully distinguishable based on

  the fact that Newell did not offer to submit Lancaster’s notice of

  appeal. Instead, because he remained Lancaster’s counsel of record

  until he withdrew or the representation terminated — neither of

  which happened before the period for Lancaster to file a notice of


                                    13
  appeal under C.A.R. 4(b) expired — Newell, knowing that Lancaster

  wanted to appeal, had a duty to ensure that Lancaster’s appeal was

  perfected. See id.

       3.   Newell’s Failure to File Lancaster’s Notice of Appeal Was
                        Ineffective Assistance of Counsel

¶ 24    Newell’s failure to file a notice of appeal on Lancaster’s behalf

  without having been granted leave to withdraw amounted to

  constitutionally ineffective assistance of counsel under Strickland.

  Both prongs of the Strickland test are satisfied because Lancaster

  has shown that Newell disregarded specific instructions to file a

  notice of appeal. See Long, 126 P.3d at 286-87.

¶ 25    We review the district court’s factual findings for abuse of

  discretion, but review de novo the application of law to those factual

  findings. Carmichael v. People, 206 P.3d 800, 807-08 (Colo. 2009).

¶ 26    The district court held an evidentiary hearing on Lancaster’s

  Rule 35(c) petition at which it heard testimony from both Newell

  and Lancaster. Based on this testimony, the district court found

  that Lancaster had communicated to Newell his desire to appeal.

  Indeed, the record establishes that Lancaster wanted to appeal and

  that Newell understood that desire. Furthermore, based on the



                                     14
  discussion in Part II.B.2 of this opinion, Newell had a duty following

  sentencing to ensure that Lancaster’s appeal was perfected. For

  these reasons, we conclude that Lancaster has established

  ineffective assistance of counsel. See Baker, 104 P.3d at 897; Long,

  126 P.3d at 287; see also People v. Houser, 2013 COA 11, ¶ 42 n.5

  (noting that counsel’s “failure to perfect an appeal for a defendant

  who desired to appeal would be per se unreasonable”). Accordingly,

  we reverse the district court’s order denying Lancaster’s

  postconviction motion alleging ineffective assistance of counsel.

  C.    Lancaster Is Entitled to Pursue His Direct Appeal Out of Time

¶ 27   Because the ineffective assistance of trial counsel deprived

  Lancaster of his right to direct appeal of his conviction, we conclude

  that he is entitled to pursue a direct appeal out of time. See

  Peguero v. United States, 526 U.S. 23, 28 (1999) (“[W]hen counsel

  fails to file a requested appeal, a defendant is entitled to . . . an

  appeal without showing that his appeal would likely have had

  merit.”); People v. Hill, 296 P.3d 121, 125 (Colo. App. 2011) (the

  remedy for a defendant whose counsel failed to perfect an appeal is

  reinstatement of the defendant’s right to an appeal); Long, 126 P.3d

  at 287 (same). Pursuant to C.A.R. 4(b), Lancaster has forty-nine


                                      15
  days from the issuance of our mandate in which to file his direct

  appeal. People v. Boespflug, 107 P.3d 1118, 1121 (Colo. App.

  2004).

                     D.      Lancaster’s Other Claims

¶ 28   Because we conclude that trial counsel’s failure to perfect

  Lancaster’s appeal was ineffective assistance under Strickland

  entitling Lancaster to pursue a direct appeal, we need not and do

  not reach his additional claim in which he contends that the

  postconviction court erroneously denied the claims brought in his

  supplemental Crim. P. 35(c) motion as time barred.

                              III.   Conclusion

¶ 29   For these reasons, we reverse the postconviction court’s order

  denying Lancaster’s Crim. P. 35(c) motion. Based on this

  disposition, Lancaster may file his notice of direct appeal in this

  court within forty-nine days from issuance of the mandate, as

  provided by C.A.R. 4(b).

       JUDGE TAUBMAN and JUDGE BERNARD concur.




                                      16
