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


                                                                   SUMMARY
                                                                 May 16, 2019

                                2019COA75

No. 17CA0628, People v. Chalchi-Sevilla — Criminal Procedure
— Postconviction Remedies; Constitutional Law — Sixth
Amendment — Right to Counsel; Attorneys and Clients —
Ineffective Assistance of Counsel

     In this case, a division of the court of appeals reverses the trial

court’s summary denial of a pro se postconviction petition because

the defendant alleged sufficient facts that, if true, may warrant

relief. For the first time, the division concludes that the proper

remedy is to remand with instructions to restore the postconviction

petition to the point at which the error occurred; pursuant to Crim.

P. 35(c)(3)(V), the postconviction court is instructed to refer the

entire petition to counsel, and counsel is permitted to supplement

the claims if deemed appropriate by counsel.
COLORADO COURT OF APPEALS                                          2019COA75


Court of Appeals No. 17CA0628
El Paso County District Court No. 10CR1604
Honorable Robin L. Chittum, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ricardo Chalchi-Sevilla,

Defendant-Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                           Opinion by JUDGE TOW
                       Taubman and Berger, JJ., concur

                           Announced May 16, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Ricardo Chalchi-Sevilla, Pro Se
¶1     Defendant, Ricardo Chalchi-Sevilla, appeals the postconviction

 court’s order denying his Crim. P. 35(c) motion without appointing

 postconviction counsel or holding an evidentiary hearing. We

 reverse and remand for further proceedings.

                            I.   Background

¶2     Chalchi-Sevilla shot and killed a store owner during an

 attempted robbery. At trial, the jury found him guilty of, among

 other charges, first degree felony murder and attempted aggravated

 robbery. The trial court sentenced him to life in the custody of the

 Department of Corrections (DOC) without the possibility of parole.

¶3     On direct appeal, a division of this court affirmed the

 judgment of conviction. See People v. Chalchi-Sevilla, (Colo. App.

 No. 12CA0202, Feb. 19, 2015) (not published pursuant to C.A.R.

 35(f)).

¶4     Chalchi-Sevilla later filed the pro se Crim. P. 35(c) motion at

 issue, raising two claims of ineffective assistance of his trial

 counsel. His first claim related to his counsel’s advice regarding

 whether he should accept a plea offer from the prosecution. His

 second claim related to his counsel’s advice regarding whether he




                                     1
 should testify at trial. He requested that postconviction counsel be

 appointed to represent him.

¶5    The postconviction court issued a written order denying the

 Crim. P. 35(c) motion without appointing counsel or holding an

 evidentiary hearing.

             II.   Applicable Law and Standard of Review

¶6    A defendant’s Sixth Amendment right to effective assistance of

 counsel extends to the plea bargaining process. Lafler v. Cooper,

 566 U.S. 156, 162 (2012). To prevail on an ineffective assistance

 claim, the defendant must show that counsel’s performance was

 constitutionally deficient, and that the deficient performance

 prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

 687 (1984). To show prejudice under Strickland where the

 ineffective assistance results in rejection of a plea offer and the

 defendant is convicted in the ensuing trial,

            a defendant must show that but for the
            ineffective advice of counsel, there is a
            reasonable probability that the plea offer
            would have been presented to the court (i.e.,
            that the defendant would have accepted the
            plea and the prosecution would not have
            withdrawn it in light of intervening
            circumstances), that the court would have
            accepted its terms, and that the conviction or


                                    2
           sentence, or both, under the offer’s terms
           would have been less severe than under the
           judgment and sentence that in fact were
           imposed.

 Lafler, 566 U.S. at 164.

¶7    A court may deny a defendant’s Crim. P. 35(c) motion without

 an evidentiary hearing “only where the motion, files, and record in

 the case clearly establish that the allegations presented in the

 defendant’s motion are without merit and do not warrant

 postconviction relief.” Ardolino v. People, 69 P.3d 73, 77 (Colo.

 2003). But where the defendant alleges sufficient facts that, if true,

 may warrant relief, the court must conduct an evidentiary hearing.

 People v. Simpson, 69 P.3d 79, 81 (Colo. 2003).

¶8    We review a summary denial of a Crim. P. 35(c) motion de

 novo. People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010).

                   III.   Advice Regarding Plea Offer

¶9    Chalchi-Sevilla’s first postconviction claim related to his

 counsel’s advice whether to accept a plea offer from the prosecution

 that included a stipulated DOC sentence of sixty years. According

 to Chalchi-Sevilla, his counsel advised him to reject the plea offer

 because a sixty-year sentence was “equivalent to a life sentence,



                                    3
  and if the worst that could happen to [him by going to trial] is a life

  sentence, then why plead guilty to a life sentence.”

¶ 10    Chalchi-Sevilla asserted that this advice was incorrect, or at

  least misleading, because counsel did not advise him regarding

  parole eligibility. Specifically, he alleged that his counsel failed to

  inform him that he would become eligible for parole after having

  served fifty percent of his sentence. He emphasized that he and his

  counsel had been actively pursuing a plea deal, and he alleged that

  he would have accepted the sixty-year offer if he had known about

  parole eligibility.

¶ 11    The postconviction court concluded that Chalchi-Sevilla did

  not show deficient performance. The court explained that trial

  counsel’s statement that a sixty-year sentence is equivalent to a life

  sentence “can be interpreted as true.” The court pointed out that,

  since Chalchi-Sevilla was twenty-six years old at the time of trial, he

  would be between fifty-six and seventy-one years old “at least” when

  he became eligible for parole. Therefore, the postconviction court

  concluded, “Counsel’s advice was not deficient. It was true.”

¶ 12    The postconviction court pointed out that Chalchi-Sevilla’s

  belief that he would have been eligible for parole after serving fifty


                                      4
  percent of his sentence was incorrect, because his plea would likely

  have involved a crime of violence, which receives different parole

  treatment than nonviolent crimes. Thus, counsel’s failure to advise

  Chalchi-Sevilla that he might be eligible for parole after serving fifty

  percent of his sentence was not deficient because such advice

  would not have been accurate.

¶ 13   As an initial matter, we note that the postconviction court’s

  observations regarding the nature of the plea offer are not

  supported by the record. The record contains no description of the

  plea offer other than the stipulated sentence length. The

  postconviction court merely speculated as to the charges to which

  Chalchi-Sevilla would have been permitted to plead guilty,

  assuming that he would have been pleading guilty to second degree

  murder and other crimes of violence. The postconviction court then

  analyzed the potential parole impact of that presumed plea,

  concluding that Chalchi-Sevilla would not be eligible for parole until

  he had served at least seventy-five percent of this sentence.

  Because this would mean Chalchi-Sevilla would not be eligible for

  parole until he was over seventy years old, the postconviction court




                                     5
  concluded that Chalchi-Sevilla could not show his attorney’s advice

  was deficient.

¶ 14   We disagree for three reasons.

¶ 15   First, the postconviction court can only rely on the record to

  determine whether the record refutes Chalchi-Sevilla’s allegations.

  Its educated guesses about the nature of the purported plea offer

  cannot defeat Chalchi-Sevilla’s right to a hearing.

¶ 16   Second, even if the postconviction court’s belief as to the

  nature of the plea was correct, its analysis failed to account for

  Chalchi-Sevilla’s eligibility for earned time credit. See § 17-22.5-

  403(2.5), C.R.S. 2018. Pursuant to section 17-22.5-405, C.R.S.

  2018, Chalchi-Sevilla would be eligible to earn a deduction from his

  sentence of up to ten days per month. If he earned all the credit

  available to him, he could reach parole eligibility as much as fifteen

  years earlier than calculated by the postconviction court.

¶ 17   Third, and most importantly, it appears the postconviction

  court misapprehended the nature of Chalchi-Sevilla’s claim.

  Chalchi-Sevilla asserted in his petition for postconviction relief that

  he “was unable to properly evaluate the attractiveness of [the plea]

  offer because his attorney told him that the plea offer was


                                     6
  essentially identical to the punishment Chalchi-Sevilla faced if

  convicted at trial.” The gravamen of his claim appears to be that a

  sentence — even a lengthy one — with the possibility of parole is

  fundamentally different than a sentence with no possibility of

  parole.

¶ 18   We recognize that, twenty-seven years ago, a division of this

  court wrote that “[e]ligibility for parole is a collateral consequence of

  [a] defendant’s plea, and there is no requirement in our rules or the

  federal rules which require[s] that [a] defendant be advised on this

  subject.” People v. Moore, 844 P.2d 1261, 1262 (Colo. App. 1992).

  Notably, though, an evidentiary hearing was held in Moore, and the

  postconviction court in that case heard evidence regarding the

  actual practice of defense attorneys and the parole board

  concerning the relevant parole issue addressed in Moore, which was

  a different parole issue than the one at issue in this case.

¶ 19   Further, the division in Moore cited an out-of-state case for

  that proposition, despite the fact that our own supreme court in

  People v. Pozo had already held just five years earlier that a criminal

  defense attorney may be required to advise a defendant about

  potential collateral consequences of a conviction, such as


                                      7
  immigration consequences. See 746 P.2d 523, 525-30 (Colo. 1987).

  In determining whether defense counsel had such a duty in a

  particular case, “the trial court must judge the reasonableness of

  the attorney’s conduct on the basis of all of the factual

  circumstances of the particular case, viewed in light of the

  prevailing standards of minimally acceptable professional conduct

  as of the time of the challenged conduct.” Id. at 527 (citing

  Strickland, 466 U.S. at 690).

¶ 20   We do not know the factual circumstances of trial counsel’s

  discussion(s) with Chalchi-Sevilla about the prosecution’s plea offer.

  We also do not know what the prevailing standard of practice was

  among the criminal defense bar at that time in terms of advising

  criminal defendants about the availability of parole or the timing of

  a defendant’s parole eligibility. An evidentiary hearing is required to

  develop the record on both subjects to resolve these issues. 1 Thus,


  1 It is important to note what we do not decide here. We are not
  announcing a rule that defense counsel must provide a detailed and
  accurate prediction of when a defendant will be eligible for parole.
  Nor are we establishing the minimum parameters for what parole-
  related advice must be provided. Rather, we simply conclude that
  Chalchi-Sevilla is entitled to an evidentiary hearing at which he will
  have the opportunity to establish what the “prevailing standards of
  minimally acceptable professional conduct” were at the time of his

                                     8
  the postconviction court erred when it declined to appoint counsel

  and conduct an evidentiary hearing.

       IV.     Remand for Further Proceedings Under Crim. P. 35(c)(3)(V)

¶ 21         Having concluded the postconviction court erred, we must

  determine the remedy. In doing so, we consider at what point in

  the Rule 35 process the error occurred. In his postconviction

  petition, Chalchi-Sevilla requested counsel be appointed. On

  appeal, he requests this court to remand the matter for

  appointment of counsel and for a hearing.

¶ 22         Had the postconviction court correctly determined that

  Chalchi-Sevilla’s petition presented sufficient facts to warrant a

  hearing on at least one issue, the court would have referred the

  matter to counsel, who would have been given time to review the

  matter and, if necessary, supplement the petition with any

  additional claims the attorney felt had arguable merit. Crim. P.

  35(c)(3)(V).

¶ 23         We clarify two key points here. First, we note that,

  historically, where divisions of this court have found error in a



  decision to reject the plea offer. People v. Pozo, 746 P.2d 523, 527
  (Colo. 1987).

                                         9
  postconviction court’s denial of a motion under Crim. P. 35(c)(3)(IV),

  those opinions have simply required an evidentiary hearing on

  remand. Such remand language neither explicitly instructed the

  postconviction court to put the train back on the tracks at the point

  it derailed, nor explicitly prohibited it. As a consequence, our

  instructions may not have been sufficiently clear.

¶ 24   We conclude that in cases where a postconviction court

  erroneously denies a Rule 35(c) motion without a hearing under

  Crim. P. 35(c)(3)(IV), the appropriate procedure is to fulfill what

  Crim. P. 35(c)(3)(V) requires by remanding with directions to

  appoint postconviction counsel (if the defendant requested

  appointment of counsel in the petition), allow counsel time to

  investigate and supplement the petition with additional claims if

  need be, and then hold the evidentiary hearing on any potentially

  meritorious claims.

¶ 25   Second, based on our construction and understanding of

  Crim. P. 35(c)(3)(IV) and (V), if a defendant’s pro se Crim. P. 35(c)

  motion presents at least one potentially meritorious claim, the

  postconviction court shall provide “a complete copy” of the motion

  to appointed counsel. Crim. P. 35(c)(3)(V). After receiving any


                                     10
  supplemental claims, the postconviction court may order a

  response by the prosecution and reply by the defendant.

¶ 26   So here, we need not address the merits of the postconviction

  court’s denial of Chalchi-Sevilla’s second claim regarding his trial

  counsel’s advice on whether he should testify at trial. Because

  Chalchi-Sevilla’s first claim had potential merit, the postconviction

  court should have proceeded to Crim. P. 35(c)(3)(V) by referring the

  complete pro se motion to counsel and allowing counsel to

  supplement any potentially meritorious claims. On remand,

  postconviction counsel can determine whether to continue to

  pursue Chalchi-Sevilla’s claim pertaining to trial counsel’s advice

  regarding testifying at trial. And, if postconviction counsel pursues

  this claim, the postconviction court may still resolve the issue

  without a hearing if, based on the pleadings before the court at that

  time, it concludes that the claim lacks sufficient factual or legal

  grounds for relief. See Crim. P. 35(c)(3)(V).

                             V.   Conclusion

¶ 27   The order denying Chalchi-Sevilla’s Crim. P. 35(c) motion

  without an evidentiary hearing is reversed. The case is remanded

  for the postconviction court to conduct further proceedings under


                                    11
Crim. P. 35(c)(3)(V), including appointing postconviction counsel for

Chalchi-Sevilla, allowing postconviction counsel to supplement

Chalchi-Sevilla’s pro se Crim. P. 35(c) motion, and conducting an

evidentiary hearing on Chalchi-Sevilla’s claim that his trial counsel

was ineffective during plea discussions by failing to advise him

regarding parole eligibility, as well as resolving any other claims

(including, if pursued by counsel, Chalchi-Sevilla’s second pro se

claim) pursuant to Crim. P. 35(c)(3)(V).

     JUDGE TAUBMAN and JUDGE BERGER concur.




                                  12
