     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 1, 2018

                               2018COA153

No. 17CA0259, People v. Timoshchuk — Criminal Procedure —
Postconviction Remedies — Conviction Obtained or Sentence
Imposed in Violation of the Constitution; Constitutional Law —
Sixth Amendment — Right to Counsel

     Defendant, a lawful permanent resident, was facing revocation

of felony probation for forgery and other charges. Upon admitting

the violation, he received a three-year prison sentence. Because of

the length of sentence on this crime, he lost his eligibility to seek

asylum in this country. He filed for postconviction relief, alleging

that his counsel at the time of the probation revocation was

ineffective in failing to advise him of this immigration consequence.

His postconviction motion was summarily denied.

     We hold, apparently for the first time, that a defendant facing

probation revocation has a statutory right to counsel, and thus a

right to effective assistance of counsel. We further hold that the
Strickland test applies to claims of ineffective assistance of counsel

in the probation revocation context. Finally, we hold that defendant

alleged sufficient facts to warrant a hearing on his claim.

Accordingly, we reverse the summary denial, and remand for a

hearing.
COLORADO COURT OF APPEALS                                       2018COA153


Court of Appeals No. 17CA0259
El Paso County District Court No. 15CR1103
Honorable Thomas K. Kane, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Maksim V. Timoshchuk,

Defendant-Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division IV
                            Opinion by JUDGE TOW
                       Hawthorne and Bernard, JJ., concur

                          Announced November 1, 2018


Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for Defendant-
Appellant
¶1    Maksim V. Timoshchuk appeals the district court’s order

 summarily denying his Crim. P. 35(c) motion for postconviction

 relief based on a claim of ineffective assistance of counsel. We hold

 apparently for the first time, that a probationer facing revocation

 proceedings has a statutory right to counsel, and thus a right to

 effective assistance of counsel as measured by the Strickland test.

 Because Timoshchuk asserted sufficient facts to warrant a hearing

 on his claim, we reverse and remand for further proceedings.

                           I.   Background

¶2    Timoshchuk was born in Ukraine and admitted to the United

 States as a refugee on July 16, 2002. The federal immigration

 authorities adjusted his status to that of a lawful permanent

 resident on November 17, 2005.

¶3    In March 2015, Timoshchuk was charged with forgery. As

 part of a plea agreement, on April 21, 2015, Timoshchuk pleaded

 guilty to forgery, pleaded guilty to DUI in a separate case, and

 admitted violating his probation in a prior case. Timoshchuk was

 sentenced to probation in all three cases.

¶4    In July 2015, Timoshchuk’s probation officer filed a complaint

 in district court, alleging that Timoshchuk had violated the


                                   1
 conditions of his probation in part by being arrested and charged

 with new offenses. On August 24, 2015, Timoshchuk entered into

 an agreement resolving all four cases; specifically, he admitted to

 violating probation in his prior cases and pleaded guilty to

 possession of a controlled substance in his newest case. The

 district court revoked Timoshchuk’s probation and resentenced him

 on the forgery charge to three years in the custody of the

 Department of Corrections concurrent with his other sentences.

¶5    On July 27, 2016, the Department of Homeland Security

 initiated removal proceedings against Timoshchuk due to his

 convictions involving a controlled substance and an aggravated

 felony as defined in 8 U.S.C. § 1101(a)(43)(R) (2018).1 Because

 Timoshchuk conceded the charges against him, the immigration

 court found Timoshchuk removable as charged.




 1 Timoshchuk’s forgery conviction became an aggravated felony
 when he was sentenced to more than 364 days in prison on August
 24, 2015. 8 U.S.C. § 1101(a)(43)(R) (2018) (“The term ‘aggravated
 felony’ means . . . an offense relating to commercial bribery,
 counterfeiting, forgery, or trafficking in vehicles the identification
 numbers of which have been altered for which the term of
 imprisonment is at least one year . . . .”).


                                   2
¶6    In September 2016, Timoshchuk filed a Form I-589

 Application for Asylum and for Withholding of Removal. The court

 ultimately denied his application. The immigration judge ruled that

 Timoshchuk was not eligible for asylum due to his aggravated

 felony conviction.

¶7    Timoshchuk then filed a postconviction motion under Crim. P.

 35(c), alleging that he was denied effective assistance of counsel

 because his probation revocation counsel failed to adequately

 investigate and correctly advise him of the immigration

 consequences of his admission and subsequent sentencing.2 The

 district court denied Timoshchuk’s motion without a hearing,

 stating that Timoshchuk was “advised that the convictions in the

 plea agreement would have adverse consequences on his

 immigration status.”



 2 Although the motion and opening brief at times appear to conflate
 the April 21, 2015, guilty plea and the August 24, 2015, admission
 to violating probation, the references to a “global plea deal” and
 attachment of an affidavit from his probation revocation counsel (a
 different lawyer than the one who represented him on his original
 forgery plea) suggest that the underlying arguments pertain
 exclusively to the August 24, 2015, admission. Accordingly, we
 refer to the “global plea deal” as the admission.


                                   3
                                   II.   Analysis

¶8     Timoshchuk argues that the court erred in denying his Crim.

  P. 35(c) motion for postconviction relief without a hearing. We

  agree.

                         A.        Standard of Review

¶9     We review a district court’s summary denial of a Crim. P. 35(c)

  motion de novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo.

  App. 2010).

¶ 10   A district court may deny the motion without a hearing if the

  motion, files, and record clearly show that the defendant is not

  entitled to relief. People v. Venzor, 121 P.3d 260, 262 (Colo. App.

  2005). “Summary denial of a postconviction relief motion is also

  appropriate if the claims raise only an issue of law, or if the

  allegations, even if true, do not provide a basis for relief.” Id. And a

  court may deny a postconviction motion if its claims are bare and

  conclusory or lack supporting factual allegations. Id.

                              B.     Applicable Law

        1.   Right to Counsel at a Probation Revocation Hearing

¶ 11   Before we can address a claim for relief under Crim. P. 35(c),

  we must decide whether a right to counsel exists at a probation


                                         4
revocation hearing. If no right to counsel exists, a defendant “bears

the risk . . . for all attorney errors made in the course of

representation.” Silva v. People, 156 P.3d 1164, 1169 (Colo. 2007)

(quoting People v. Silva, 131 P.3d 1082, 1089 (Colo. App. 2005)).

The parties dispute whether a probationer facing revocation has a

constitutional right to counsel at the revocation hearing. We note

that our supreme court has observed that two United States

Supreme Court cases set out “‘minimum requirements of due

process’ at parole or probation revocation hearings.” People v.

Atencio, 186 Colo. 76, 78-79, 525 P.2d 461, 462 (1974) (quoting

Morrissey v. Brewer, 408 U.S. 471, 489 (1972), and Gagnon v.

Scarpelli, 411 U.S. 778, 786 (1973)). The requirements include

           (a) written notice of the claimed violations of
           (probation or) parole; (b) disclosure to the
           (probationer or) parolee of evidence against
           him[;] (c) opportunity to be heard in person
           and to present witnesses and documentary
           evidence; (d) the right to confront and cross-
           examine adverse witnesses (unless the hearing
           officer specifically finds good cause for not
           allowing confrontation); (e) a “neutral and
           detached” hearing body such as a traditional
           parole board, members of which need not be
           judicial officers or lawyers; and (f) a written
           statement by the factfinders as to the evidence
           relied on and reasons for revoking (probation
           or) parole.


                                    5
  Id. (quoting Morrissey, 408 U.S. at 489, and Gagnon, 411 U.S. at

  786). Notably absent from this list is the right to be represented by

  counsel. Indeed, in Gagnon, the United States Supreme Court

  rejected a categorical rule requiring court-appointed counsel for

  indigent probationers facing revocation in favor of a case-by-case

  assessment of whether “fundamental fairness — the touchstone of

  due process — will require that the State provide at its expense

  counsel for indigent probationers or parolees.” 411 U.S. at 790.

¶ 12   Gagnon involved a probationer who, upon receiving probation,

  also received a suspended fifteen-year sentence, for which the

  sentencing order provided that “(i)n the event of his failure to meet

  the conditions of his probation he will stand committed under the

  sentence all ready (sic) imposed.” Id. at 779 n.1. The Court

  observed that probation revocation “is not a stage of a criminal

  prosecution.” Id. at 782. In doing so, the Court distinguished an

  earlier case, Mempa v. Rhay, 389 U.S. 128 (1967). In that case, the

  United States Supreme Court ruled that a defendant placed on

  probation as part of a deferred sentence was entitled to counsel at

  the hearing to revoke the probation and enter the initial sentence.



                                    6
  389 U.S. at 137. However, the Gagnon court held that the

  reasoning underpinning Mempa “does not require a hearing or

  counsel at the time of probation revocation in a case such as the

  present one, where the probationer was sentenced at the time of

  trial.” 411 U.S. at 781.

¶ 13   The facts of the case before us fall between Mempa and

  Gagnon. Timoshchuk was sentenced upon entry of his plea in April

  2015. But, unlike in Gagnon, the sentence did not include a

  suspended component that would take effect automatically upon

  revocation of probation. Cf. People v. Abdul, 935 P.2d 4 (Colo.

  1997) (holding that a defendant is not entitled to a resentencing

  hearing or appointment of counsel after termination from a

  community corrections program).

¶ 14   We need not determine, however, whether due process, in light

  of its touchstone of fundamental fairness, requires appointment of

  counsel in all probation revocation hearings such as the one at

  issue here, because we conclude that the legislature has provided

  probationers facing revocation with a statutory right to counsel.

  See Dami Hosp., LLC v. Indus. Claim Appeals Office, 2017 COA 21, ¶

  15 (recognizing that courts should avoid constitutional issues that


                                    7
  need not be resolved in order to decide a case) (cert granted Sept.

  11, 2017).

¶ 15   When the government seeks to revoke an offender’s probation,

  the court is required, at the probationer’s first appearance on the

  revocation, to “advise the probationer as provided in section 16-7-

  207 insofar as such matters are applicable; except that there is no

  right to a trial by jury in proceedings for revocation of probation.”

  § 16-11-206(1), C.R.S. 2018. Section 16-7-207, C.R.S. 2018, in

  turn, sets out a defendant’s trial rights. In particular, it provides

  that “it is the duty of the judge to inform the defendant and make

  certain that the defendant understands . . . [t]he defendant has a

  right to counsel.” § 16-7-207(1)(b).

¶ 16   Of course, the probation revocation statute does not

  necessarily incorporate every right enumerated in section 16-7-207

  into a probation revocation proceeding. For example, section 16-7-

  207(1)(f) includes the right to a jury trial. However, that right is

  explicitly excluded in probation revocation proceedings. § 16-11-

  206(1). Also, section 16-7-207(1)(a) provides the defendant’s right

  to remain silent. However, in a probation revocation hearing, the

  prosecution may call the probationer as a witness, and his refusal


                                     8
  to answer questions may be used against him. Byrd v. People, 58

  P.3d 50, 56-57 (Colo. 2002).

¶ 17   To our knowledge, no Colorado appellate court has directly

  addressed whether the interplay of sections 16-11-206 and 16-7-

  207 operates as a legislative grant of the right to counsel at a

  probation revocation hearing. Analyzing an earlier statute, the

  Colorado Supreme Court held that while a probationer was not

  entitled to a hearing (and, thus, presumably not entitled to counsel)

  prior to his probation being revoked, he was entitled to counsel at

  the time sentencing was imposed following the revocation.3 Gehl v.

  People, 161 Colo. 535, 539-40, 423 P.2d 332, 334-45 (1967). The

  statute at issue in that case, however, did not include a cross-

  reference to statutory language incorporating any trial rights. See

  § 39-16-9, C.R.S. 1963.

¶ 18   In later cases, divisions of this court have clearly proceeded on

  the tacit assumption that a right to counsel at a probation

  revocation hearing exists, but have not engaged in a formal analysis



  3Timoshchuk does not assert that his counsel’s performance
  during his resentencing was deficient.


                                     9
  of the existence or source of this right. See People v. Ruch, 2013

  COA 96, ¶¶ 16-27 (addressing a claim of improper denial of a

  request for substitute appointed counsel), rev’d on other grounds,

  2016 CO 35; People v. Firth, 205 P.3d 445, 451 (Colo. App. 2008)

  (addressing a claim of ineffective assistance of counsel during a

  probation revocation hearing); People v. Martin, 987 P.2d 919, 928

  (Colo. App. 1999) (same), rev’d on other grounds, 27 P.3d 846 (Colo.

  2001); cf. People v. Johnson, 2017 COA 97, ¶ 79 (Harris, J.,

  dissenting) (observing, in a case involving a probationer’s right to

  bail while a revocation complaint is pending, that “[a]ll of the rights

  delineated in [section 16-7-201(1)], with the exception of the right to

  a jury trial, appear to be applicable to revocation proceedings”).4

¶ 19   In our view, nothing in the statutory language suggests the

  legislature considered the right to counsel to be inapplicable at a

  probation revocation hearing. See § 16-11-206.5 Indeed, the very

  nature of the right to counsel suggests the contrary. We note, for


  4 We do not express any opinion as to whether any other rights
  enumerated in section 16-7-207 are inapplicable to probation
  revocation proceedings.
  5 Neither party provided any legislative history for our

  consideration.


                                    10
  example, that a probation revocation is often the result of new

  charges filed against the probationer, as it was in Timoshchuk’s

  case. It would be illogical, and would potentially engender

  confusion of roles, if a defendant in Timoshchuk’s shoes were

  entitled to court-appointed counsel on the new charges, but that

  same attorney could not be appointed to provide advice as to how

  the new charges may impact the existing probation sentence.

  Further, even if no new charges are involved, the services of counsel

  would certainly be of assistance to probationers in presenting

  defenses to the revocation complaint and mitigation in post-

  revocation sentencing, at least where there has not been a binding

  suspended sentence included as a component of the initial

  probation term. For these reasons, we now make explicit what was

  previously merely presumed, and hold that the General Assembly

  has provided probationers with a right to counsel at a probation

  revocation hearing.

       2.   Standard for Evaluating Probation Revocation Counsel

¶ 20    Having determined that a probationer has a statutory right to

  counsel at a probation revocation hearing in Colorado, we must

  next determine what standard of performance should be applied to


                                   11
  such counsel. Facing a similar question upon the recognition of a

  limited statutory right to postconviction counsel, the Colorado

  Supreme Court noted that “a party whose counsel is unable to

  provide effective representation is in no better position than one

  who has no counsel at all.” Silva, 156 P.3d at 1169 (quoting Evitts

  v. Lucey, 469 U.S. 387, 396 (1985)). As a result, the Silva court

  adopted the standard announced in Strickland v. Washington, 466

  U.S. 668 (1984). For the same reasons, we hold that the Strickland

  standard is the appropriate test for evaluating the effectiveness of

  probation revocation counsel. See Firth, 205 P.3d at 451 (applying

  Strickland test at a probation revocation hearing).

¶ 21   Strickland established a two-prong test for ineffective

  assistance of counsel claims. 466 U.S. at 687. To prove an

  ineffective assistance of counsel claim, a defendant must show (1)

  that counsel’s performance was deficient (in that it fell below an

  objective standard of reasonableness) and (2) that the deficient

  performance prejudiced his defense. Id. at 687-88; Ardolino v.

  People, 69 P.3d 73, 76 (Colo. 2003).

¶ 22   As to the first prong of the Strickland test, the defendant must

  allege facts that, if true, show that in light of all the circumstances,


                                     12
  counsel’s identified acts or omissions were outside the wide range of

  professionally competent assistance. Ardolino, 69 P.3d at 77. As to

  the second prong, the defendant must assert facts that, if true,

  show a reasonable probability that, but for counsel’s unprofessional

  errors, the result of the proceeding would have been different.

  Strickland, 466 U.S. at 694. Reasonable probability means a

  probability sufficient to undermine confidence in the outcome. Id.

                               C.   Analysis

¶ 23   Timoshchuk contends that the district court erred in

  summarily denying his claim that his probation revocation counsel

  failed to sufficiently investigate and advise him of the specific

  immigration consequences of his admission. We agree.

¶ 24   In cases involving noncitizen defendants, when the deportation

  consequence of a conviction “is truly clear,” counsel must provide

  “correct advice.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010);

  People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011), aff’d, 2012 CO

  73. Failing to do so falls below an objective standard of

  reasonableness. Padilla, 559 U.S. at 369.

¶ 25   As relevant here, federal immigration law provides that “[a]ny

  alien who is convicted of an aggravated felony at any time after


                                     13
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2018).

Timoshchuk was convicted of an aggravated felony when he pleaded

guilty to forgery and was subsequently sentenced to three years

imprisonment. See 8 U.S.C. § 1101(a)(43)(R). Thus, it is clear that

Timoshchuk could be subject to removal under this section for his

aggravated felony conviction. Because § 1227(a)(2)(A)(iii) is

“succinct and straightforward,” Timoshchuk’s probation revocation

counsel should have advised him with certainty that his admission

and resulting sentence could subject him to removal proceedings

under this section. Padilla, 559 U.S. at 369; People v. Campos-

Corona, 2013 COA 23, ¶ 13. We note that this omission alone

would not be sufficient to sustain his claim under Crim. P. 35(c).

Timoshchuk was also subject to removal proceedings because of a

controlled substance conviction. See 8 U.S.C. § 1227(a)(2)(B)(i)

(“Any alien who at any time after admission has been convicted of a

violation of . . . any law . . . relating to a controlled substance . . . is

deportable.”). Therefore, because he was already subject to removal

based on a previous plea, he cannot demonstrate prejudice flowing

from this particular omission by probation revocation counsel.




                                     14
¶ 26   However, Timoshchuk’s aggravated felony conviction also

  foreclosed an application for asylum that would halt his removal

  proceedings. An alien convicted of a “particularly serious crime”

  may not apply for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii) (2018). “For

  purposes of clause (ii) of subparagraph (A), an alien who has been

  convicted of an aggravated felony shall be considered to have been

  convicted of a particularly serious crime.” § 1158(b)(2)(B)(i). Thus,

  Timoshchuk became ineligible for asylum when he was sentenced

  to three years in prison for the forgery conviction. Again, because

  this statutory language is clear, his counsel should have advised

  him with certainty of the immigration consequences of his

  admission. See Padilla, 559 U.S. at 369; Campos-Corona, ¶ 13.

¶ 27   Timoshchuk was entitled to an advisement from counsel of the

  specific immigration consequences of his admission — namely, that

  he was subject to removal proceedings and was ineligible for

  asylum. He alleges he did not receive such advice. If true, he may

  be entitled to relief.

¶ 28   In summarily denying the postconviction motion, the district

  court stated that Timoshchuk had been advised that the

  convictions would have adverse consequences on his immigration


                                    15
  status. While it is true that in his original written plea agreement,

  he acknowledged being advised, this fact alone is insufficient to

  defeat his right to a hearing. See United States v. Akinsade, 686

  F.3d 248, 254 (4th Cir. 2012) (holding that court’s admonition that

  guilty plea could lead to deportation was not sufficient to cure

  lawyer’s specific erroneous advice), cited with approval in People v.

  Morones-Quinonez, 2015 COA 161, ¶ 23. The issue is not only

  whether he received advice, but also whether any advice he did

  receive was adequate. Padilla, 559 U.S. at 367. Timoshchuk has

  alleged sufficient facts to warrant a hearing on the adequacy of the

  advice he received.

¶ 29   In support of his Crim. P. 35(c) motion, Timoshchuk attached

  an affidavit signed by his probation revocation counsel, stating that

  she did not provide him with a specific advisement of the

  immigration consequences of his admission. However, it would be

  error for this court to render judgment on the pleadings based on

  an affidavit attached to a Rule 35(c) motion. People v. Smith, 2017

  COA 12, ¶ 17 (holding that an affidavit attached to a response to a

  Rule 35(c) motion is not a part of the record for purposes of

  determining whether to conduct a hearing). Because the district


                                    16
  court is in a better position to make these factual determinations

  after conducting an evidentiary hearing, we must remand the case.

  See People v. Walford, 746 P.2d 945, 946 (Colo. 1987) (remanding

  for district court to make findings and conclusions because it was

  “far better suited to make these determinations”).6

                            III.   Conclusion

¶ 30   The order is reversed, and the case is remanded to the district

  court for further proceedings consistent with this opinion.

       JUDGE HAWTHORNE and JUDGE BERNARD concur.




  6 The People are entitled to cross-examine Timoshchuk’s probation
  revocation counsel in order to test the veracity of the statement and
  further explore what specifically was said. Moreover, the
  statements of his probation revocation counsel alone are not
  sufficient to determine whether Timoshchuk was prejudiced by the
  allegedly deficient advice, given that the record reflects he also
  received some immigration advice from his initial attorney prior to
  entering his April 2015 forgery plea. The People must be given the
  opportunity to explore the full extent of Timoshchuk’s
  understanding at the time of his admission.


                                    17
