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                                                         ADVANCE SHEET HEADNOTE
                                                                     March 12, 2018

                                        2018 CO 16

No. 14SC190, Ybanez v. People—Post Conviction Proceedings—Criminal Trials—
Sentencing.


       Ybanez petitioned for review of the court of appeals’ judgment affirming his

conviction of first degree murder and directing that his sentence of life without the

possibility of parole be modified only to the extent of permitting the possibility of

parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014).

In an appeal of his conviction and sentence, combined with an appeal of the partial

denial of his motion for postconviction relief, the intermediate appellate court rejected

Ybanez’s assertions that the trial court abused its discretion and violated his

constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was

denied the effective assistance of counsel both because his counsel’s performance was

adversely affected by a non-waivable conflict of interest under which that counsel

labored and because he was prejudiced by a deficient performance by his counsel; and

that he was entitled to an individualized determination regarding the length of his

sentence rather than merely the possibility of parole after forty years.

       The supreme court affirmed the judgment of the court of appeals and remanded

the case with directions to return it to the trial court for resentencing consistent with the
opinion of this court, for the reasons that Ybanez lacked any constitutional right to a

guardian ad litem and the trial court did not abuse its discretion in not appointing one

as permitted by statute; that Ybanez failed to demonstrate either an adverse effect

resulting from an actual conflict of interest, even if his counsel actually labored under a

conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell

below the required standard of competent representation; and that Ybanez is

constitutionally and statutorily entitled only to an individualized determination

whether life without the possibility of parole or life with the possibility of parole after

forty years is the appropriate sentence.
                     The Supreme Court of the State of Colorado
                       2 East 14th Avenue • Denver, Colorado 80203


                                      2018 CO 16

                          Supreme Court Case No. 14SC190
                           Certiorari to the Court of Appeals
                          Court of Appeals Case No. 11CA434
                                       Petitioner:
                                 Nathan Gayle Ybanez,
                                           v.
                                      Respondent:
                          The People of the State of Colorado.

                                  Judgment Affirmed
                                        en banc
                                     March 12, 2018


Attorneys for Petitioner:
Davis Graham & Stubbs LLP
Shannon Wells Stevenson
Emily L. Wasserman
Claire E. Mueller
 Denver, Colorado

Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
John T. Lee, Assistant Attorney General
 Denver, Colorado

Attorney for Amicus Curiae Colorado Office of the Child’s Representative:
Colorado Office of the Child’s Representative
Sheri Danz, Deputy Director
 Denver, Colorado
Attorneys for Amici Curiae Juvenile Law Center, et al.:
Juvenile Law Center
Marsha Levick
 Philadelphia, Pennsylvania

Colorado Juvenile Defender Center
Hannah Seigel Proff
 Denver, Colorado

Attorneys for Amici Curiae Legal Ethics Professors:
University of Colorado Law School
Melissa Hart
 Boulder, Colorado

University of Denver Sturm College of Law
Eli Wald
 Denver, Colorado

Attorney for Amicus Curiae the Twentieth Judicial District, Office of the District
Attorney:
Stanley L. Garnett, District Attorney
 Boulder, Colorado




JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE HART do not participate.


                                            2
¶1     Ybanez petitioned for review of the court of appeals’ judgment affirming his

conviction of first degree murder and directing that his sentence of life without the

possibility of parole be modified only to the extent of permitting the possibility of

parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014).

In an appeal of his conviction and sentence, combined with an appeal of the partial

denial of his motion for postconviction relief, the intermediate appellate court rejected

Ybanez’s assertions that the trial court abused its discretion and violated his

constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was

denied the effective assistance of counsel both because his counsel’s performance was

adversely affected by a non-waivable conflict of interest under which that counsel

labored and because he was prejudiced by a deficient performance by his counsel; and

that he was entitled to an individualized determination regarding the length of his

sentence rather than merely the possibility of parole after forty years.

¶2     Because Ybanez lacked any constitutional right to a guardian ad litem and the

trial court did not abuse its discretion in not appointing one as permitted by statute;

because Ybanez failed to demonstrate either an adverse effect resulting from an actual

conflict of interest, even if his counsel actually labored under a conflict, or that he was

prejudiced by his counsel’s performance, even if it actually fell below the required

standard of competent representation; and because Ybanez is constitutionally and

statutorily entitled only to an individualized determination whether life without the

possibility of parole or life with the possibility of parole after forty years is the

appropriate sentence, the judgment of the court of appeals is affirmed, and the case is


                                             3
remanded with directions to return it to the trial court for resentencing consistent with

the opinion of this court.

                                             I

¶3     In 1999, a month before his eighteenth birthday, Nathan Gayle Ybanez was

convicted as an adult of first degree murder for the 1998 beating and strangulation

death of his mother, and he was sentenced to life imprisonment without the possibility

of parole. He did not appeal his conviction or sentence, but in 2007 he filed a motion for

postconviction relief pursuant to Crim. P. 35(c), challenging the effectiveness of his

counsel’s representation and the constitutionality of his sentence. That motion was

heard in 2009 and partially granted in 2011, only to the extent of reinstating his right to

appeal. He then filed an appeal of his conviction and sentence, as well as an appeal of

the denial of the remainder of his motion for postconviction relief, which were heard by

the court of appeals as a single combined appeal. The court of appeals affirmed the

lower courts, and the defendant petitioned this court for a writ of certiorari.

¶4     At trial, the prosecution’s case was presented largely through the testimony of

the officers who apprehended the defendant attempting to dispose of his mother’s body

and who investigated the scenes of both the arrest and the murder; the pathologist who

performed the autopsy; and the testimony of one of the three young men who

conspired to clean up the scene, dispose of the body, and cover up the murder, but who

had subsequently agreed to testify in exchange for not being charged for his

participation. In addition, the prosecution presented the testimony of the defendant’s

father, who had been with the defendant and his mother earlier in the day of the


                                             4
murder and who had persuaded the mother not to immediately send the defendant to

military school; the defendant’s girlfriend, whom the defendant called immediately

after the murder and who warned the other two conspirators of the police investigation

implicating them; and a friend of the victim, who had no first-hand knowledge of the

killing. The defendant did not testify on his own behalf or present any witnesses.

¶5     The evidence presented at trial was to the effect that on the evening before her

murder, the victim packed her car with things the defendant would need at a military

school to which she intended to take him the next day. At her request, the father, who

had moved out of the family home over tension concerning how to deal with

increasingly problematic behavior of the defendant, came to the apartment the next

morning, but rather than helping take the defendant to the military school as intended,

managed to persuade the victim to agree to give the defendant another chance to

change his behavior. That afternoon the defendant worked his job at Einstein’s Bagel’s,

where he told his friend and fellow punk-band member Bret Baker, and had already

told their mutual friend and bandleader Eric Jensen, that he was going to kill his mother

that night. Baker testified that the defendant had made similar statements before and

that he did not take the threat seriously.

¶6     Baker recounted that sometime after 9 p.m. he got a page from the defendant and

upon calling back, both the defendant and Jensen told him to hurry over to the

defendant’s apartment. On arrival he was met at the door by Jensen, who appeared

scared and had blood on his face, and he saw the defendant, who was blood-soaked

and cleaning blood from the carpet. Baker testified that despite his initial resistance, at


                                             5
Jensen’s order he helped clean and dispose of bloody items, and he described how the

defendant and Jensen took showers and how all three filled eight to twelve trash bags

with the bloody items and the victim’s clothes, to be disposed of, in hopes of making it

appear that she had simply left with the defendant.

¶7     Baker and Jensen then left to dispose of the bags in trash dumpsters and returned

with a can of gas and shovel to implement Jensen’s plan to burn and bury the body.

They then helped the defendant bring his mother’s body—which was inside a sleeping

bag—from the deck where it had been kept during the cleanup, wrap it in a rug, tie it

with a cord from a guitar amplifier, and carry it to the trunk of the victim’s Lexus.

Baker testified that when questioned the defendant indicated to him that he killed his

mother to prevent her from hurting him, and after being dissuaded from remaining in

Denver with friends, as he had planned, the defendant agreed to leave for Mexico after

disposing of the body.

¶8     Baker and Jensen then left in Jensen’s car, disposed of the remainder of the

bloody evidence, and returned to Jensen’s house. Baker testified that during that time

Jensen told him that he had hit the victim in the head with fireplace tongs three times,

specifying that at one point the tongs became stuck, forcing him to pull them out,

streaking the ceiling with blood. The two concocted a story to tell the police to the

effect that they had come over to the defendant’s house earlier in the evening but had

left when his mother sent them away, and that they then drove around looking for a

party, but failing to find one, went for coffee.




                                              6
¶9     Later that night, the defendant called his girlfriend and asked her to wait-up late

and let him into her basement when he showed up. About 4 a.m., he was apprehended

by a Douglas County Deputy Sheriff while attempting to dispose of the victim’s body at

a nearby park. In addition to the victim’s body, which was stuffed inside the sleeping

bag and wrapped in the rug, with the head covered by a trash bag, a number of other

incriminating items were also found inside the mother’s Lexus, including the fireplace

tongs with her blood on them and the gas can, later identified by surveillance footage as

having been purchased by Jensen at a nearby gas station. An autopsy would reveal that

the victim had been severely beaten about the head with an object that could have been

the fireplace tongs and that although those wounds may have proved fatal if left

untreated, within a reasonable degree of medical certainty she had been killed by

asphyxiation, as the result of manual strangulation, which could also have been caused

by the fireplace tongs.

¶10    The defendant was arrested and taken to jail. Although the jury was not told of

it because the defendant’s father refused to sign a waiver, the defendant was

interrogated that night and confessed to the killing by himself, without implicating

Jensen or Baker. The defendant’s subsequent motion to have his statement declared

involuntary, and therefore barred from use even to impeach him if he testified, was

denied. The next evening the defendant called his girlfriend from jail and also told her

that he had killed his mother and had planned to go to Mexico. While he did not share

any details with her, he did tell her that Jensen was there for the murder and that Baker

had come over after and helped clean the scene.


                                            7
¶11   The girlfriend testified that she did not believe the defendant at first, that he had

made similar threats before, and that she considered him incapable of killing his

mother, but she nevertheless told the investigators what he said to her.             After

identifying Jensen in the gas station photo, however, the girlfriend also notified Jensen

and Baker, who hurriedly fled to Mexico. After only one day, the two called their

fathers, who met them in Texas and returned them to Colorado. Baker subsequently

entered into a plea arrangement with the government and testified against both Jensen

and the defendant, who were convicted in separate trials and sentenced to life in prison.

¶12   Although the defendant did not testify or present any defense witnesses, defense

counsel was able to present a picture of the defendant, through the testimony of his

father, who had initially been called by the prosecution, as a good kid who fell under

the influence of Jensen and Baker after leaving private for public school and joining

their punk rock band. The father was questioned and testified about his attempts to

discipline the defendant, including one episode in which he trashed the defendant’s

room and threw him up against a wall, and about the defendant’s attempts to run away

to his friends’ houses and their attempts to convince him that he was being abused by

his parents. Through his opening and closing arguments, and his cross-examination of

Baker and the girlfriend, defense counsel conceded the defendant’s guilt of second

degree murder but argued that he did not and could not act after deliberation, a

requirement for first degree murder. He attempted to convince the jury of this by

minimizing the defendant’s participation in the killing and demonstrating that he

would not have gone forward with the plan at all but for the presence and urging of


                                            8
Jensen, and after initially striking his mother, he could not finish the job, which was

only accomplished by Jensen.

¶13   Seven years later, the defendant filed a motion for postconviction relief alleging

that his trial counsel had been ineffective at trial by failing to present what he asserted

was an objectively reasonable defense to deliberation murder—that as the result of past

abuse by his father, instigated by his mother, he snapped on the night in question and

killed his mother—and that counsel failed to investigate and present such a defense

because producing evidence of child abuse would have been embarrassing to the father,

by whom defense counsel had been engaged to represent the defendant.               Among

others, the defendant presented expert testimony from an attorney experienced with the

Colorado Rules of Professional Conduct, who testified that the representation involved

a non-waivable conflict and violated C.R.P.C. 1.7 and 1.8; expert testimony from an

experienced defense attorney, who opined that the performance of counsel in this case

fell below accepted professional standards as the result of his failure to adequately

investigate and produce evidence of child abuse by the father; and expert testimony

from a forensic and clinical psychologist, engaged by a non-profit organization founded

by the parents of Eric Jensen to help provide legal assistance to juveniles sentenced to

life without the possibility of parole, who opined that the defendant did not have the

ability to make a plan to kill his mother because he was undergoing a “catathymic

crisis” and killed her “in a reflexive action as an outpouring of uncontrolled,

disinhibited rage” caused by the abuse he had experienced.




                                            9
¶14    Trial counsel also testified at length, explaining his choices and defense strategy.

With regard to the representation itself, he testified that he advised both father and son

that he would represent only the son and that he obtained the son’s consent to the

representation, under these circumstances. Although the engagement was arranged

through the father, counsel testified that the first installment payment to cover his

representation through the preliminary hearing actually came from the victim’s mother,

who the father explained would not make any further payments. The father further

explained that he would be unable to do so himself. Although counsel discussed

withdrawing from representation at that point and having the defendant seek

representation from the public defender, he testified that he remained on the case

without any expectation of payment at the pleading of the defendant and that he

worked with the defendant to fashion an acceptable defense.

¶15    With regard to his choice of defense, counsel testified that he suspected abuse by

the father but rejected a defense to “deliberation” murder based on such abuse, even if

it had occurred, for a host of reasons unrelated to any conflict of loyalties, which he

unequivocally disputed. In light of the defendant’s insistence that he had not been

abused by his father, counsel was advised by a mental health professional whom he

consulted that it would not be wise from a defense perspective to pursue the matter

with the defendant. Similarly, counsel testified that he considered it too risky to rely on

a mental health defense at trial, in part because the diagnosis of his own experts

indicated that although a defense of insanity or impaired mental condition was not

viable, nevertheless the defendant had psychopathic tendencies, lacked conscience or


                                            10
empathy, and was willing to do anything to get his present needs met. In counsel’s

judgment, a mental health defense under these circumstances, might influence a jury to

believe the defendant was dangerous and untreatable and therefore cause them to be

unsympathetic to a lesser charge. Counsel also noted that his trial strategy to reject

psychological evidence was influenced by the recent Columbine killings, which would

be fresh in the juror’s minds, and by a book that was current at the time, called “The

Abuse Excuse,” which made the case that juries would not be accepting of those kinds

of psychological defenses. Finally, in light of the lack of first-hand knowledge of abuse

by any of the other potential witnesses, counsel feared that a defense premised upon

prior abuse would require the defendant to testify himself, with all the implications for

his un-Mirandized but voluntary confession that would entail.

¶16    With regard to the particular evidence in this case, trial counsel explained his

reasoning in choosing to defend on the basis that the defendant initially struck his

mother only under Jensen’s influence but was unable to follow through and kill her. He

noted that the defendant’s prior statements about planning to kill his mother to several

people would make it difficult to argue for a psychological break at the moment of the

attack, and that his confession to the police, in which he took all the blame upon

himself, would be admissible as impeachment evidence if he testified to acting out of

rage himself. Similarly, he had been caught disposing of the body in a deliberate and

unemotional manner shortly after the killing and had emotionlessly confessed to his

girlfriend about the killing after his arrest.




                                                 11
¶17     By contrast, and supporting his choice of defense, counsel pointed to the fact that

the forensic evidence did not indicate who had actually caused the victim’s death, and

that the only admissions concerning the killing acts themselves were those of Jensen, to

the effect that he had struck the victim with the fireplace tongs so hard they became

embedded, requiring such an effort to pull them out that it caused blood to be streaked

on the ceiling. Counsel testified that the defendant told him the plan was for him to

knock his mother out and when Jensen arrived they would strangle her. The defendant

indicated to his counsel that he had, however, retreated to his room until Jensen came to

the door, and that it was Jensen who provided the metal bar, helped with the killing,

provided the gas to burn the body, directed Baker and the defendant in the cleanup and

disposal of the body, and told the defendant to flee to Mexico.

¶18     Following four days of testimony and review of not only that testimony but also

the transcript of the trial and several thousand pages of discovery received and

reviewed by trial counsel, the arguments and briefing of counsel, and multiple exhibits,

the postconviction court issued an eighteen-page, single-spaced order of its findings

and conclusions. The court parsed the evidence presented at the postconviction hearing

in detail, explaining why it found much of the defendant’s evidence unconvincing; why

it found that defense counsel had a cohesive theory at trial, which he presented in voir

dire, opening statement, and closing argument; and why it could not find that the

conduct of the trial demonstrated a conflict of interest or that counsel’s representation

fell below an objective standard of reasonableness undermining reliance on the outcome

of the trial.


                                            12
¶19    Initially, the court found that defense counsel was highly experienced in the

conduct of serious criminal cases, with over thirty years of practice. He specifically

noted that counsel had been a juvenile probation officer, headed the Arapahoe Public

Defender’s Office, was Chief Public Defender handling homicides, and was currently in

private practice.

¶20    With regard to the defendant’s psychological expert, upon whose testimony

rested the proposed alternate defense theory of reflexive action and uncontrollable rage

induced by prior abuse, the court found that the psychiatric expert presented by the

prosecution raised persuasive and credible concerns about the reliability of his

conclusions. The court noted in particular that the evidence of numerous prior rages

and beatings by the parents was unsubstantiated; that there was inadequate critical

analysis or independent corroboration of the information supplied solely by the

defendant; and that no consideration had been given to malingering or secondary gain

on the defendant’s part, despite a clear motive to have his conviction set aside. Perhaps

most importantly, however, the court found that the prosecution’s psychiatric expert

testified credibly that even the concept of “catathymic crisis” was not well accepted in

the field.

¶21    With regard to the defendant’s ethical expert, the court found that although she

was knowledgeable in the rules of ethics, in light of her lack of experience in the

criminal law, it could not rely on her opinion concerning how a conflict-free attorney

would have proceeded in his representation of this case. With regard to the defendant’s

criminal defense expert, the court ultimately found that despite his criticisms of counsel


                                           13
for not more strenuously cross-examining regarding abuse, doing so could have cut

both ways. Developing a case for prior abuse would have been at cross-purposes with

counsel’s chosen defense.

¶22    With regard to the defendant’s assertion that counsel had been ineffective in

reserving his right to appeal, however, the postconviction court agreed, finding that

defense counsel’s admittedly tactical choice not to advise the defendant of his right to

appeal or respond to his subsequent letter requesting that counsel file an appeal

amounted to inadequate representation which, in combination with the trial court’s

failure to advise him, as required by Crim. P. 32, entitled him to file an appeal. Pre-

dating as it did the United States Supreme Court’s decision in Miller v. Alabama, 567

U.S. 460 (2012), the defendant’s challenge to the constitutionality of his sentence to life

imprisonment without the possibility of parole was also rejected.

¶23    On appeal, the court of appeals affirmed the denial of the defendant’s motion for

postconviction relief for ineffective assistance of counsel but, in light of Miller and our

holding in People v. Tate, 2015 CO 42, 352 P.3d 959, remanded to the trial court for

resentencing to life with the possibility of parole after forty years. In addition, the court

of appeals addressed on a plain error standard the question whether the trial court

erred in not sua sponte appointing a guardian ad litem to protect the defendant’s

interests, but it found no plain error.

¶24    We granted the defendant’s petition for a writ of certiorari.




                                             14
                                             II.

¶25    In 1984, the Supreme Court articulated for the first time a comprehensive

understanding of ineffective assistance, making clear that this aspect of the Sixth

Amendment right to counsel merely protects a criminal defendant from being

prejudiced by a deficient performance from his counsel. United States v. Cronic, 466

U.S. 648, 654–55 (1984); Strickland v. Washington, 466 U.S. 668, 692 (1984). Excepting

only a few narrow circumstances in which the Court had previously presumed

prejudice—notably where counsel was not made available, was prohibited by the trial

court from participating in a critical aspect of the proceeding, or acted under a conflict

of interest—this constitutional right is now held to be violated only upon a

demonstration of likely prejudicial impact on the outcome of a particular adjudication.

See Mickens v. Taylor, 535 U.S. 162, 171 (2002); Strickland, 466 U.S. at 687; Cronic, 466

U.S. at 665; see generally 3 Wayne R. LaFave et al., Criminal Procedure, § 11.7(d) (3d ed.

2013). With regard to the exception for conflicts of interest, several years prior to finally

arriving at its comprehensive standard in Strickland, the Court found it appropriate to

presume prejudice where a trial court declines to inquire further into defense counsel’s

assertion that he will be unable to adequately represent the interests of multiple

codefendants at the same trial. Holloway v. Arkansas, 435 U.S. 475, 485 (1978). Shortly

thereafter, it extended that proposition to hold that relief from an alleged conflict

arising from such joint representation, which is raised initially only after conviction in a

case in which the trial court neither knew nor had reason to know of any particular

conflict requiring further inquiry, would be contingent upon a demonstration that the


                                             15
conflict actually affected the adequacy of counsel’s representation. Cuyler v. Sullivan,

446 U.S. 335, 349–50 (1980).

¶26    Although it has continued to recognize this standard for assessing the impact of

“actual conflicts” to be an exception to the Strickland standard, in Mickens the Court

clarified the scope of the exception to some degree by emphasizing that “the Sullivan

standard is not properly read as requiring inquiry into actual conflict as something

separate and apart from adverse effect.” Mickens, 535 U.S. at 172 n.5. Rather, “[a]n

‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely

affects counsel’s performance.”      Id.   Acknowledging in West this unambiguous

proposition from Mickens, we expressly overruled our prior holding to the contrary in

People v. Castro, 657 P.2d 932, 945 (Colo. 1983), which had effectively eliminated the

need for defendants to demonstrate an adverse effect in order to establish an actual

conflict. See West v. People, 2015 CO 5, ¶¶ 26–29, 341 P.3d 520, 528.

¶27    In West, we therefore held that in order for a defendant to demonstrate that he

was deprived of the effective assistance of counsel as the result of an actual conflict of

interest, he must show not only that his counsel labored under a conflict of a kind to

which the Sullivan prophylaxis applies but also that counsel’s representation was

adversely affected by that conflict. Id. at ¶ 36, 341 P.3d at 530. Following a detailed

evaluation of the treatment of this “adverse effect” requirement by the various federal

circuits having considered it, we articulated a three-part standard for this jurisdiction,

largely adopted from the Fourth Circuit. Id. at ¶ 54, 341 P.3d at 533. Accordingly, we

held that to prove an adverse effect, a defendant must (1) identify a plausible alternative


                                            16
defense strategy or tactic that counsel could have pursued, (2) show that the alternative

strategy or tactic was objectively reasonable under the facts known to counsel at the

time of the strategic decision, and (3) establish that counsel’s failure to pursue that

strategy or tactic was linked to the conflict. Id. at ¶ 57, 341 P.3d at 533.

¶28    With regard to the existence of a plausible alternative defense strategy, we noted,

among other things, that ultimately the inquiry requires the defendant to identify an

unpursued strategy that was “obviously in the defendant’s interest under the

circumstances.” Id. at ¶ 58, 341 P.3d at 533. In addition to the existence of such a

plausible alternative defense strategy, however, we made clear that the inquiry into

objective reasonableness must include consideration of a host of factors that will

necessarily vary from case to case, including for example such things as the information

that the defendant communicated to the attorney upon which the attorney based his

decisions concerning how to proceed, and the viability of the alternative strategy in

light of all those factors. Id. at ¶ 60, 341 P.3d at 533. Finally, even if the defendant

demonstrates the existence of such a plausible alternate defense strategy and that it

would have been objectively reasonable to pursue that strategy in light of all the

attendant circumstances known to counsel, the defendant must also demonstrate that

the alternative strategy in question was not pursued due to the attorney’s competing

loyalties or interests. Id. at ¶ 61, 341 P.3d at 534.

¶29    With regard to the kinds of conflicting loyalties or interests to which the so-called

Sullivan prophylaxis, rather than the Strickland standard, is at least potentially

applicable, in West we acknowledged remaining uncertainty and expressly limited our


                                               17
holding in that case to the conflicts arising from multiple representation implicated

there. Id. at ¶ 36 n.8, 341 P.3d at 530. Again today, although for very different reasons,

we find it unnecessary to decide the extent to which the separate standard for actual

conflicts of interest applies to conflicting loyalties or interests apart from those

implicated by multiple representations.

                                           III.

¶30   The defendant asserts that he was deprived of the effective assistance of counsel

both because his counsel failed, as the result of a conflict of interest, to pursue a

plausible defense, capable of mitigating first to second degree murder, that it would

have been objectively reasonable for him to pursue and, alternatively, because the

failure of his counsel to pursue that defense resulted in a constitutionally deficient

performance, but for which there would have been a reasonable likelihood that the

defendant would have been convicted of no more than second degree murder. With

regard to the former contention, the postconviction court made a number of findings,

both factual and legal, leading it to conclude that defense counsel did not labor under

an actual conflict of interest. It is, however, unnecessary for us to resolve whether the

father’s engagement contract with the defendant’s counsel to defend his son created a

non-waivable or non-consentable conflict of interest, as the defense expert testified,

much less a conflict of a kind to which the Sullivan prophylaxis rather than the

Strickland standard would control, for the reason that the defendant failed to

demonstrate in his postconviction proceedings that any such conflict, even if one

existed, had an adverse effect on counsel’s performance.


                                           18
¶31   While the defense presented additional circumstantial and second-hand evidence

that the defendant had been abused, the relevance of that evidence, even if it were to be

credited, rested entirely on the opinion of the defense-expert clinical psychologist that

the defendant was undergoing a “catathymic crisis” and killed his mother in a reflexive

action of uncontrollable rage caused by that abuse.           As a factual matter, the

postconviction court was persuaded instead by the testimony of the People’s psychiatric

expert not only that the defense expert’s methodology was flawed, in part because it

relied too heavily on unsubstantiated evidence of abuse and failed to consider

malingering and secondary gain on the defendant’s part, but also because his theory of

“catathymic crisis” was not even well-accepted in the field. While the postconviction

court did not have the benefit of our later opinion in West, and therefore could not

know to express its findings in the precise terms of the standard we adopted there, it

effectively found that the defense failed even to identify a plausible alternative defense

that counsel could have pursued.

¶32   Whether the alternate defense postulated by the defendant might have been

considered plausible or not, however, the postconviction court credited defense

counsel’s testimony concerning the circumstances and information to which he was

privy, as well as the alternative options available to, and considered by, him, leading to

a conclusion that it would not have been objectively reasonable in any event for him to

pursue the alternate theory now advanced by the defendant. Among the other findings

expressly relied on by the postconviction court in this regard, it noted the absence of

first-hand perceptions of abuse without the testimony of the defendant himself, which


                                           19
would have required the recantation of his consistent denials of abuse as well as

subjecting him to impeachment with his otherwise inadmissible confession to the

police.      The court also noted defense counsel’s wariness of attempting any

psychological defense in light of the diagnosis of his own experts suggesting

psychopathic tendencies of his client that might well cause a jury to fear his future

dangerousness and be unsympathetic to a lesser sentence, as well as external

contemporaneous events suggesting that juries might be particularly unaccepting of

such a psychological defense at that point in time.

¶33       Because the two theories of mitigation were contradictory of each other, the

reasonableness of pursuing a defense of spontaneous rage at the mother caused by

distant abuse by the father could be assessable only in comparison with the

reasonableness of the dominant companion theory actually pursued. By contrast with

the former, a theory premised on the defendant’s having fallen under the influence of

an older, dominant companion, without whose direction the defendant would not have

acted at all and who the evidence suggested actually brutalized the victim and

consummated the killing himself, found support in the evidence without the

corresponding risks associated with the psychological defense.             While the

postconviction court clearly discredited any suggestion that defense counsel failed to

pursue a defense of spontaneous rage caused by prior abuse as the result of any

competing loyalty to the defendant’s father, it is enough that substituting such a

defense for the defense theory actually presented would not have been objectively

reasonable.


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¶34    Because the defendant failed to prove the requirements for establishing an

adverse effect, he failed to prove that his counsel was ineffective as the result of an

actual conflict of interest, regardless of the merits of his contention that counsel labored

under an ethical conflict as to which he argues the Sullivan prophylaxis would apply.

With regard to the defendant’s alternate argument, for many of the same reasons

causing the postconviction court to conclude that defense counsel did not labor under

an actual conflict of interest, it similarly concluded that his performance did not fall

below the standard of reasonable competence required by the two-pronged Strickland

test, much less that but for deficiencies in his performance, there would have been a

reasonable probability the defendant would have been convicted only of second degree

murder.

¶35    The defendant attempted to demonstrate that defense counsel’s performance fell

below that of reasonable competence in part because of his failure to investigate more

fully whether the defendant had been abused by his father. The defendant himself,

however, consistently denied any such abuse, which denials, as the Supreme Court has

previously held, were entitled to reliance by counsel without further investigation.

Strickland, 466 U.S. at 691.    More importantly, however, the postconviction court

credited counsel’s reasons for making the strategic choice not to pursue the matter,

regardless of anything further investigation into past abuse might have revealed. In

light of the court’s findings regarding the implausibility of the alternate theory of

mitigation now advanced by the defendant, the credibility of defense counsel’s

explanation about his own reasoning, and especially the deference to which such


                                            21
strategic choices by defense counsel are entitled, id. at 681, it can hardly be said that

counsel’s choice of defense fell below the level of reasonable competence.

¶36    With regard to the second, or prejudice, prong of the Strickland standard, even if

the postconviction court had not been dissuaded from crediting the defense expert’s

opinion or the reliability of his psychological theory, and even if it had not credited the

testimony of trial counsel concerning the reasons for his choice of defense, the

overwhelming evidence of the defendant’s planning, participation in, and attempt to

cover-up his mother’s murder make it impossible to find a reasonable probability that

the jury would not have found the defendant guilty of first degree, deliberation murder,

regardless of the choice of defense.

                                           IV.

¶37    The defendant additionally asserts that he was both constitutionally and

statutorily entitled to the appointment of a guardian ad litem, despite one not having

been requested, and that the failure to appoint one was structural error. With regard to

any constitutional entitlement, while he clearly had a due process right not to be

subjected to a prosecution at which he lacked the capacity to appreciate the nature of

the proceedings and assist his counsel in his defense, Dusky v. United States, 362 U.S.

402, 402 (1960), a Sixth Amendment right to the effective assistance of counsel, McMann

v. Richardson, 397 U.S. 759, 771 (1970), and an Eighth Amendment right not to be

subjected to cruel and unusual punishment, Miller, 567 U.S. at 469–70, the defendant

had no separate and broader due process right to the appointment of a guardian ad

litem. Neither the Supreme Court nor this court has ever suggested such a due process


                                            22
requirement, over and above these more specifically enumerated rights, constitutionally

guaranteeing criminal defendants due process. In this case, the defendant does not

allege that he was incompetent to proceed at trial; we have found that he was not

deprived of the effective assistance of counsel; and the People do not dispute that he is

entitled to resentencing in accord with the Eighth Amendment.

¶38    With regard to a statutory entitlement, section 19-2-517 of the revised statutes

provides that it remains within the discretion of the court to appoint a guardian ad

litem for a juvenile charged as an adult by direct filing in the district court, as would be

the case if he were tried for the same conduct as a juvenile, in a delinquency proceeding.

§ 19-2-517(8), C.R.S. (2017). While that provision does not embellish on the exercise of

the court’s discretion in this regard, sections 517 and 518 enumerate the circumstances

under which a juvenile may be tried as an adult for criminal conduct, with the former

specifying when a juvenile may be charged by direct filing of an information in the

district court or by indictment and the latter specifying when a petition in delinquency

may be transferred from the juvenile court, for criminal proceedings in the district

court. § 19-2-517 to -518. Unlike section 517, section 518 does not, and need not,

specifically reserve the court’s discretion to appoint a guardian ad litem because, unlike

direct file cases, cases subject to transfer must have been initiated as delinquency

proceedings, with regard to which the circumstances under which the juvenile court

may exercise discretion to appoint a guardian ad litem are spelled out in detail. See

§ 19-1-511(2)(a).




                                            23
¶39    The juvenile court is statutorily permitted to appoint a guardian ad litem in

delinquency proceedings, and therefore in adult criminal proceedings in the district

court initiated by transfer, only upon the occurrence of one of three triggering events.

The juvenile court may appoint a guardian ad litem for the juvenile in delinquency

proceedings where no parent or enumerated person functioning in the role of parent

appears in the case; where the court finds a conflict of interest between the child and

parent or person functioning as a parent; or where the “court makes specific findings

that the appointment of a guardian ad litem is necessary to serve the best interest of the

child and such specific findings are included in the court’s order of appointment.”

§ 19-1-111(2)(a)(I)–(III). Unless the legislature intended the court’s discretion in direct

file felony cases to be different in scope and purpose from its discretion in felony cases

transferred from delinquency proceedings, the spare provision for guardians ad litem in

section 517 must be similarly limited, according to the more specific provisions of

section 19-1-111. In light of the placement, structure, and subject matter of the statutes

and the absence of any apparent reason for the disparate treatment of juveniles tried as

adults by direct filing and those tried as adults by transfer, we find this to be the case.

¶40    Relying on case law in other contexts in which we have held that the failure to

exercise discretion can, in itself, amount to an abuse of discretion, the defendant asserts

that by failing to act, sua sponte, to appoint a guardian ad litem for him, the court erred

and that error amounted to plain, if not structural, error. However, we have clearly

never held, and it is clearly not the case, that a court abuses its discretion by not

considering and making a record of its considerations with regard to every action it is


                                             24
within the court’s discretion to take.     Unlike those situations in which a court is

statutorily directed to make an independent judgment and fails to make a record of its

considerations, see, e.g., People v. Darlington, 105 P.3d 230 (Colo. 2005) (finding failure

to make independent judgment whether to grant plea concessions), the district court in

criminal trials of juveniles as adults is not only not directed to exercise independent

judgment whether to appoint a guardian ad litem but is in fact permitted to do so only

under specified circumstances.

¶41   None of the three possible triggering events prompted, or even permitted, the

court to exercise its discretion in this case. The defendant’s father was clearly present

and actively supporting the defendant throughout, and neither the defendant nor

anyone else made the court aware of a conflict of interest between them, even if one had

existed. Nor was there any motion or other occurrence prompting the court to make

“specific findings that the appointment of a guardian ad litem [would be] necessary to

serve the bests interests of the child,” the final prerequisite for exercising of its

discretion to do so, or any indication in the record that it would have been an abuse of

discretion to have found otherwise. Not only was the defendant one month away from

turning eighteen, the age at which the appointment of a guardian ad litem would

statutorily terminate even had it been made, but the court was also aware of the father’s

actions to protect his son during the police investigation, his efforts to engage an

experienced defense counsel to act on his son’s behalf, and his presence and support

during proceedings at the request of his son.




                                            25
                                              V.

¶42    Finally, the defendant asserts that he is entitled to an individualized

determination concerning the length of his sentence rather than being subjected to a

sentence of life with possibility of parole after forty years. We have considered the

arguments of the defendant in People v. Tate, 2015 CO 42, 352 P.3d 959, and found them

to be without merit, and the legislature has subsequently enacted legislation mandating

a sentence for juveniles tried as adults and convicted of class one felonies of life with the

possibility of parole only after serving forty years, see § 18-1.3-401(4)(c)(I)(B).

                                             VI.

¶43    Because Ybanez lacked any constitutional right to a guardian ad litem and the

trial court did not abuse its discretion in not appointing one as permitted by statute;

because Ybanez failed to demonstrate either an adverse effect resulting from an actual

conflict of interest, even if his counsel actually labored under one, or that he was

prejudiced by his counsel’s performance, even if it actually fell below the required

standard of competent representation; and because Ybanez is constitutionally and

statutorily entitled only to an individualized determination whether life without the

possibility of parole or life with the possibility of parole after forty years is the

appropriate sentence, the judgment of the court of appeals is affirmed, and the case is

remanded with directions to return it to the trial court for resentencing consistent with

the opinion of this court.

JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HOOD, JUSTICE GABRIEL, and JUSTICE HART do not participate.




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