     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 26, 2020

                                2020COA47

No. 17CA1060, People v. Wardell — Criminal Procedure —
Presence of the Defendant — Postconviction Remedies

     A division of the court of appeals considers whether a

defendant has a constitutional right or right by rule to be present in

person at a Crim. P. 35(c) evidentiary hearing. The division

concludes that a defendant does not have such a right. Rather,

whether to grant a defendant’s request to be present in person at a

postconviction hearing is an issue within the postconviction court’s

discretion. In this case, the division concludes that the

postconviction court did not abuse its discretion in denying

defendant’s request to be physically present because defendant was

in federal prison out of state and defendant had agreed to testify

telephonically.
COLORADO COURT OF APPEALS                                          2020COA47


Court of Appeals No. 17CA1060
Larimer County District Court No. 94CR776
Honorable Gregory M. Lammons, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wendel Robert Wardell, Jr.,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division III
                          Opinion by JUDGE ROMÁN
                       Dunn and Rothenberg*, JJ., concur

                          Announced March 26, 2020


Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Defendant, Wendel Robert Wardell, Jr., asserts that he had

 the right to appear at a Crim. P. 35(c) postconviction hearing, that

 he sufficiently established ineffective assistance of counsel, and

 that his plea in this case was involuntary. Deciding an issue of first

 impression in Colorado, we conclude that a defendant does not

 have a right to appear in person at a Crim. P. 35(c) evidentiary

 hearing. Rather, whether a defendant may appear in person is

 subject to the postconviction court’s discretion. In this case, we

 conclude that the postconviction court did not abuse its discretion

 when it denied defendant’s request to be present in person at the

 Crim. P. 35(c) evidentiary hearing. We also reject defendant’s

 substantive Rule 35(c) claims. Thus, we affirm.

                           I.   Background

¶2    This case comes to us with a tortuous procedural history. In

 1994, defendant pled guilty to one count of fraud by check and was

 sentenced to eighteen months in prison. Subsequently, he

 appealed the denial of a pre-plea motion to dismiss the case, which

 was affirmed by another division of this court in People v. Wardell,

 (Colo. App. No. 95CA0049, Apr. 18, 1996) (not published pursuant

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

                                   1
¶3    In 1996, defendant filed a pro se motion for appointment of

 counsel for the purpose of pursuing a Crim. P. 35(c) motion based

 upon alleged ineffective assistance of his plea counsel and appellate

 counsel. The postconviction court denied the motion, finding no

 meritorious claim for relief under Crim. P. 35(c). Defendant

 appealed that ruling, and a division of this court affirmed in People

 v. Wardell, (Colo. App. No. 96CA1274, Mar. 19, 1998) (not

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

¶4    In 1998, defendant, again acting pro se, filed a Crim. P. 35(c)

 motion based upon the following allegations: (1) defendant had been

 denied the effective assistance of his plea counsel; (2) he had been

 denied the effective assistance of his second appellate counsel; and

 (3) his guilty plea was involuntary as a result of the ineffective

 assistance of his plea counsel. The postconviction court denied the

 motion without a hearing, finding that the basis for that motion was

 the same as that which had been raised by prior motions and

 denied by the court.

¶5    In 2000, another division of this court affirmed in part,

 reversed in part, and remanded the case with instructions based on

 the trial court’s failure to appoint postconviction counsel or hold an

                                    2
 evidentiary hearing. People v. Wardell, slip op. at 9 (Colo. App. No.

 99CA1040, Oct. 12, 2000) (not published pursuant to C.A.R. 35(f)).

 The division instructed the postconviction court “to appoint counsel

 to represent defendant at an evidentiary hearing to determine: (1)

 whether defendant’s plea counsel provided ineffective assistance by

 threatening to withdraw if defendant did not plead guilty; and (2)

 whether counsel’s alleged threats rendered defendant’s guilty plea

 involuntary.” Id. The division also instructed the court on remand

 to “enter findings of fact and conclusions of law with respect to

 these two issues.” Id.

¶6    The postconviction court issued an order again denying

 defendant’s Rule 35(c) motion without an evidentiary hearing.

 Instead, the postconviction court relied on appointed counsel’s

 written representation that defendant lacked a meritorious claim.

 On appeal, a division of this court found that the postconviction

 court erred and remanded the case for an evidentiary hearing in

 accordance with the instructions from the 2000 Wardell decision.

 See People v. Wardell, (Colo. App. No. 13CA0926, Aug. 20, 2015)

 (not published pursuant to C.A.R. 35(f)).



                                   3
¶7    Back on remand, prior to the evidentiary hearing, defendant

 requested that the postconviction court issue a writ to bring him

 from federal prison in South Carolina to the hearing.1 The

 postconviction court denied defendant’s request.

¶8    The postconviction court then held an evidentiary hearing and

 allowed defendant to present postconviction claims from two cases

 — this case and 92CR995 — because defendant’s motions relied on

 the same or similar factual arguments; namely, that defendant was

 coerced into pleading guilty in this case and that, as a result, his

 plea was not voluntary.2

¶9    At the hearing, defendant appeared and testified telephonically

 and was represented in person by counsel. The only evidence

 presented to the postconviction court was defendant’s testimony.




 1 To writ the defendant in this case, the postconviction court would
 have issued an order requiring that defendant be transported from
 federal prison in South Carolina to the hearing in Colorado.
 2 In 92CR995, defendant pled guilty to theft by check in exchange

 for deferred judgment and sentence. When defendant pled guilty in
 this case, he confessed the motion to revoke deferred judgment and
 sentencing. Therefore, defendant’s claims of coercion affect both
 this case and 92CR995.

                                    4
¶ 10        In separate orders, the postconviction court denied all of

  defendant’s postconviction claims in this case and in 92CR995.

  Defendant now appeals.3

                                  II.   Analysis

¶ 11        Defendant contends the postconviction court erred by denying

  his request to appear in person at the evidentiary hearing. To

  address defendant’s claim, we must first consider whether a

  defendant has a right to be present in person at such a hearing.

       A.     Does Defendant Have a Right to be Present in Person at a
                             Postconviction Hearing?

¶ 12        We hold that in Colorado a defendant does not have a right to

  be present in person at a Crim. P. 35(c) hearing. This is true

  whether analyzed as a constitutional right or right by rule.

¶ 13        “Both the United States Constitution and the Colorado

  Constitution ‘guarantee the right of a criminal defendant to be

  present at all critical stages of the prosecution.’” Zoll v. People,

  2018 CO 70, ¶ 19 (quoting People v. White, 870 P.2d 424, 458 (Colo.

  1994)). However, the right to presence is not absolute, nor does



  3Defendant appeals both orders. We resolve the companion case in
  a separate opinion, People v. Wardell, (Colo. App. No. 17CA1059,
  Mar. 26, 2020) (not published pursuant to C.A.R. 35(e)).
                                         5
  every criminal proceeding constitute a “critical stage.” See id. at

  ¶ 20.

¶ 14      Indeed, “[c]onstitutional guaranties protected by [article II,

  section 16 of the Colorado Constitution] relate to trial and not to

  proceedings thereafter unless a new trial is granted.” Agnes v.

  People, 104 Colo. 527, 538, 93 P.2d 891, 896 (1939) (emphasis

  added); see Colo. Const. art. II, § 16 (“In criminal prosecutions the

  accused shall have the right to appear and defend in person and by

  counsel . . . .”); see also 15 Robert J. Dieter, Colorado Practice

  Series, Criminal Practice and Procedure § 16.41, Westlaw (2d ed.

  database updated Oct. 2019) (“The right to be present encompasses

  all trial-related proceedings . . . . This extends from jury selection

  through sentencing, but does not extend to post-trial matters . . . .”)

  (footnotes omitted).

¶ 15      Federal courts have repeatedly held that the right to be

  present under the United States Constitution does not apply to

  postconviction proceedings analogous to Crim. P. 35(c) hearings.

  See United States v. Hayman, 342 U.S. 205, 222-23 (1952) (“Unlike

  the criminal trial where the guilt of the defendant is in issue and his

  presence is required by the Sixth Amendment, a proceeding under

                                        6
  [28 U.S.C. § 2255 (2018)] is an independent and collateral

  inquiry . . . . Whether the prisoner should be produced depends

  upon the issues raised by the particular case.”); United States v.

  Bergman, 746 F.3d 1128, 1130 (10th Cir. 2014); see also Bucci v.

  United States, 662 F.3d 18, 32 (1st Cir. 2011). Accordingly,

  defendant did not have a constitutional right to be present at his

  Crim. P. 35(c) hearing.

¶ 16   Nor does a defendant have a right by rule to appear in person

  at a postconviction hearing. Crim. P. 43, which enumerates stages

  of the criminal process at which a defendant must be physically

  present, does not include a Rule 35(c) hearing.4 Similarly, Rule

  35(c) does not address a defendant’s presence at an evidentiary

  hearing. Rather, Crim. P. 35(c)(3)(V) reads, in relevant part: “If the

  court does not deny the motion . . . the court shall grant a prompt

  hearing on the motion . . . . At the hearing, the court shall take

  whatever evidence is necessary for the disposition of the motion.”



  4 Crim. P. 43(a) requires that the defendant “be present at the
  preliminary hearing, at the arraignment, at the time of the plea, at
  every stage of the trial including the impaneling of the jury and the
  return of the verdict, and at the imposition of sentence, except as
  otherwise provided by this rule.”
                                     7
  This language says nothing about how the evidence must be

  presented.

¶ 17   Because there is no constitutional or rule-based requirement

  that a defendant be present in person at a Crim. P. 35(c)

  postconviction hearing, we conclude that whether to grant a

  defendant’s request to be present at a postconviction hearing is

  within the postconviction court’s discretion.

        B.     Did the Postconviction Court Abuse its Discretion?

¶ 18   We consider next whether the postconviction court abused its

  discretion by denying defendant’s request to be present in person at

  the evidentiary hearing.

               1.   Standard of Review and Applicable Law

¶ 19   Generally, “a proceeding under Crim. P. 35(c) is governed by

  equitable principles.” People v. Turman, 659 P.2d 1368, 1370 (Colo.

  1983). “[A] trial court is obligated to administer justice, control the

  decorum of the courtroom, and make sure that cases are decided

  on appropriate grounds.” People v. Finney, 2012 COA 38, ¶ 64

  (concluding that a postconviction court correctly limited the time in

  which a defendant could present his case during a Crim. P. 35(c)

  hearing), aff’d, 2014 CO 38. “To achieve these ends, courts have

                                     8
  broad discretion to control the ‘mode and extent of the presentation

  of evidence.’” Id. (quoting People v. Cole, 654 P.2d 830, 832 (Colo.

  1982)).

¶ 20   We review a postconviction court’s denial of a defendant’s

  request to be present at a Crim. P. 35(c) evidentiary hearing for an

  abuse of discretion. See Bucci, 662 F.3d at 32 (“Whether the

  petitioner should be present at his § 2255 hearing ‘depends upon

  the issues raised by the particular case,’ and is a matter left to the

  district court’s sound discretion.”) (citations omitted); see also

  Teffeteller v. Dugger, 676 So. 2d 369, 371 (Fla. 1996) (“[I]t is within

  the [postconviction] court’s discretion to determine whether or not a

  prisoner should be present at a postconviction relief hearing . . . .”).

  “To constitute an abuse of discretion, the postconviction court’s

  decision must be shown to be manifestly arbitrary, unreasonable,

  or unfair.” People v. Hardin, 2016 COA 175, ¶ 30.

¶ 21   “[W]e review nonconstitutional trial errors that were preserved

  by objection for harmless error.” Hagos v. People, 2012 CO 63,

  ¶ 12. “[W]e reverse if the error ‘substantially influenced the verdict

  or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin

  v. People, 715 P.2d 338, 342 (Colo. 1986)).

                                     9
                            2.    Discussion

¶ 22   Under the circumstances here, we discern no abuse of

  discretion in the postconviction court’s denial of defendant’s request

  to be physically present at the postconviction hearing. Defendant

  was located in federal prison in South Carolina. “The expectation of

  an applicant’s presence [at a postconviction proceeding] is not

  applicable if the applicant is confined in another state and cannot

  be removed to the court in which the application is pending without

  undue expense or delay.” IV ABA Standards for Criminal Justice

  § 22-4.6 cmt. (2d ed. 1980)); see also Turman, 659 P.2d at 1370

  (“We have often looked to the American Bar Association Standards

  for Criminal Justice for guidance in the area of postconviction

  remedies.”).

¶ 23   Further, the postconviction court attempted to secure

  defendant’s testimony via video conference, which proved

  impossible due to technological deficiencies in Larimer County. The

  postconviction court, the federal prison, and counsel agreed that a

  telephonic conference was possible. At a status hearing, defense

  counsel told the postconviction court that she had advised

  defendant she was opposed to him testifying via telephone.

                                    10
  However, over counsel’s objection, defendant instructed counsel to

  accept the telephonic hearing. In response, the postconviction

  court stated: “Well, it is not ideal, but I guess it’s certainly

  something – I’m certainly willing to accept that waiver if he has any

  right beyond a telephone conference.” Because the postconviction

  court attempted to secure video conferencing and defendant

  accepted the telephonic conference, the postconviction court did not

  abuse its discretion in this case.

¶ 24   Defendant also argues that the hearing was unfairly

  prejudicial because the postconviction court could not see his body

  language or demeanor.5 However, the postconviction court rested

  its credibility conclusions on the disparity between the substance of

  defendant’s testimony and the factual record.

¶ 25   Thus, under the particular facts of this case, we conclude the

  postconviction court properly exercised its discretion by denying

  defendant’s request to appear in person. Having concluded that


  5 Defendant points out that the telephone connection cut out at the
  close of the hearing. But, our examination of the record leads us to
  conclude that defendant had sufficient opportunity to present
  testimony, and at the time of the lost connection, he had concluded
  his testimony, defense counsel had finished closing argument, and
  the People were in the middle of their closing.
                                       11
  there was no error in conducting the hearing without defendant

  being present in person, we turn to whether the court’s substantive

  rulings are correct.

                   C.     Defendant’s Postconviction Claims

¶ 26   Defendant argues that the postconviction court erred by (1)

  denying his ineffective assistance claims and (2) rejecting his claim

  that his plea was involuntary. We discern no error.

                   1.      Ineffective Assistance of Counsel

              a.        Standard of Review and Applicable Law

¶ 27   A claim of ineffective assistance of counsel presents mixed

  questions of fact and law. Dunlap v. People, 173 P.3d 1054, 1063

  (Colo. 2007). Where the evidence in the record supports the

  findings and holding of the postconviction court that presided over

  an evidentiary hearing, the judgment will not be disturbed on

  review. Id. at 1062.

¶ 28   A criminal defendant has a constitutional right to effective

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

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

  evaluating the effectiveness of counsel, we use the two-prong test

  set forth in Strickland. See Hagos, ¶ 17. This test requires a

                                       12
  defendant to establish (1) that counsel’s performance was deficient

  and (2) that the deficient performance prejudiced the defense.

  Strickland, 466 U.S. at 687. Unless both showings are made, a

  defendant has not proved that he was denied effective assistance of

  counsel. Id.

¶ 29   Counsel’s performance is deficient when the representation

  falls below “an objective standard of reasonableness.” Id. at 688. A

  strong presumption exists that counsel provided adequate

  assistance and exercised reasonable professional judgment with

  regard to significant decisions. People v. Hickey, 914 P.2d 377, 379

  (Colo. App. 1995). Thus, the defendant must overcome a strong

  presumption that counsel’s challenged action may have been sound

  strategy. People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007)

  (citing Strickland, 466 U.S. at 689). To overcome this presumption,

  the defendant must establish that his counsel made one or more

  errors that were so flagrant that they more likely resulted from

  neglect or ignorance rather than from informed professional

  deliberation. Strickland, 466 U.S. at 690.




                                   13
                             b.   Discussion

¶ 30   The postconviction court made detailed factual findings in its

  order denying defendant’s Crim. P. 35(c) motion.

¶ 31   First, the postconviction court found that defendant’s

  testimony at the evidentiary hearing was not credible because it

  was refuted by the record. Specifically, the postconviction court

  rejected defendant’s testimony regarding a “lengthy colloquy” with

  the sentencing court as not credible because there was no record of

  such a conversation in the transcripts.6 For similar reasons, the

  postconviction court found not credible defendant’s testimony about

  a letter he wrote to the court because defendant’s testimony

  regarding the contents of the letter did not match what was read to

  the sentencing court. The court found that “[d]efendant’s testimony

  did not exhibit minor lapses in memory; it evidenced purposeful

  efforts to deceive the [c]ourt, which only escalated after the

  sentencing transcript was not located and, again, after the

  [d]efendant learned the contents of the court records.”




  6 After the Crim. P. 35(c) hearing, the postconviction court located
  the transcripts from the sentencing hearing, where both the plea
  colloquy and sentence determination took place.
                                    14
¶ 32   Second, the postconviction court found, with record support,

  that plea counsel was adequately prepared, interviewed potential

  witnesses, and filed motions to suppress and to obtain an out-of-

  state witness. The postconviction court further found that, during

  the plea colloquy, plea counsel told the sentencing court that he

  had no reason to believe there had been “any acts of coercion” used

  against defendant. The court also found that plea counsel properly

  advised defendant about the charges he faced and the possible

  consequences of a plea, including that he faced a habitual offender

  charge and up to a life sentence if convicted at trial. The court

  rejected defendant’s testimony that plea counsel threatened him.

¶ 33   Third, the postconviction court found from the record of the

  plea colloquy that defendant had told the sentencing court, under

  oath, that (1) he understood the plea agreement and the court’s

  questionnaire; (2) there were no threats or acts of coercion used

  against him to force him to enter into the plea agreement; and (3)

  he was entering into the plea freely and voluntarily. Defendant also

  initialed and signed the sentencing court’s questionnaire and

  wanted the court to rely on the truth of those statements.

  Defendant told the sentencing court that the plea was in his best

                                    15
  interest, and the postconviction court found that the plea was

  favorable to defendant.

¶ 34   Because the postconviction court’s findings of fact and

  conclusions of law sufficiently provided the basis of its ruling —

  namely, that defendant failed to present evidence that would justify

  relief or satisfy the deficiency prong of Strickland— we affirm the

  postconviction court’s orders. See Dunlap, 173 P.3d at 1061; People

  v. Breaman, 939 P.2d 1348, 1352 (Colo. 1997).

¶ 35   We turn next to defendant’s claim that the court erred by

  finding that his plea was voluntary.

                       2.    Voluntariness of Plea

              a.   Standard of Review and Applicable Law

¶ 36   A claim asserting that a guilty plea was involuntary presents a

  mixed question of law and fact. People v. Corson, 2016 CO 33,

  ¶ 25. “We consider the totality of the circumstances to determine

  whether the guilty plea was entered knowingly, voluntarily, and

  intelligently.” Id. (quoting Sanchez-Martinez v. People, 250 P.3d

  1248, 1257 (Colo. 2011)). We review the postconviction court’s legal

  conclusions de novo but defer to the postconviction court’s factual

  findings if they are supported by the record. Id.

                                    16
¶ 37    “A guilty plea must represent ‘a voluntary and intelligent

  choice among the alternative courses of action open to the

  defendant’ and must be the product of ‘a free and rational choice.’”

  Id. at ¶ 27 (quoting People v. Kyler, 991 P.2d 810, 816 (Colo. 1999)).

  “[A] defendant who seeks to set aside a conviction based on a guilty

  plea must make a prima facie showing that the plea was

  unconstitutional.” Sanchez-Martinez, 250 P.3d at 1255.

                             b.   Discussion

¶ 38    As relevant here, the postconviction court found the following:

        The court’s and counsel’s advisements to defendant were not

         coercive in nature because they were proper advisements

         about the circumstances of the case and the consequences of

         defendant’s plea.

        Defendant signed the sentencing court’s questionnaire about

         the plea to the 1994 charge that indicated he was not coerced

         or threatened, and the sentencing court relied on the truth of

         those statements during the plea colloquy.

        Defendant represented under oath at the sentencing hearing

         that he was aware of the charges against him, their elements,

         and the potential sentence.

                                    17
        Defendant discussed the plea with counsel on multiple

         occasions.

        Defendant’s allegations that he was threatened with the

         prospect of proceeding pro se were not credible and were

         belied by the record that reflected defendant’s ability to voice

         grievances against counsel and seek appointment of new

         counsel throughout the years.

¶ 39    We discern no error in the postconviction court’s findings of

  fact or its legal conclusions. Because the record supports its

  findings that defendant’s guilty plea was not coerced or involuntary,

  and that defendant’s testimony at the evidentiary hearing was

  factually refuted, we affirm.

                              III.   Conclusion

¶ 40    The order is affirmed.

        JUDGE DUNN and JUDGE ROTHENBERG concur.




                                      18
