COLORADO COURT OF APPEALS                                          2017COA57


Court of Appeals No. 15CA0128
Jefferson County District Court No. 13CR1081
Honorable Christie B. Phillips, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Breck Torrell Higgins,

Defendant-Appellant.


                          ORDER REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                     Division VI
                           Opinion by JUDGE FURMAN
                         Welling and Davidson*, JJ., concur

                              Announced May 4, 2017


Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jessica A. Scotella, Deputy
State Public Defender, Denver, 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. 2016.
¶1    Defendant, Breck Torrell Higgins, filed a Crim. P. 35(c) motion

 and requested counsel to represent him on his motion. The district

 court sent a copy of Higgins’s motion to the prosecution and, after

 receiving the prosecution’s response, denied the motion without a

 hearing and without hearing from the public defender’s office. But,

 the court was required under Crim. P. 35(c)(3)(V) to allow the public

 defender’s office to respond. Because the court departed from Crim.

 P. 35(c)(3)(V)’s procedure, we reverse and remand its order without

 considering the merits of Higgins’s postconviction claims.

                   I. Higgins’s Crim. P. 35(c) Motion

¶2    Higgins pleaded guilty to felony menacing, and the court

 sentenced him to serve eighteen months in prison. During the next

 two months, he filed three unsuccessful motions for a reduced

 sentence, one through his lawyer and two pro se. A few months

 later, he filed the Crim. P. 35(c) motion, which included several

 claims of ineffective assistance of counsel.

                             II. Discussion

¶3    Higgins contends that the district court erred by departing

 from the procedure outlined by Crim. P. 35(c)(3)(IV) and (V) and that

 the court’s error requires reversal. We agree.


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                    A. Crim. P. 35(c)(3)(IV) and (V)

¶4    Crim. P. 35(c)(3)(IV) permits a district court to deny a

 defendant’s Crim. P. 35(c) motion without a hearing if the motion,

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

 entitled to relief. See Ardolino v. People, 69 P.3d 73, 77 (Colo.

 2003).

¶5    If the court does not summarily deny the motion under Crim.

 P. 35(c)(3)(IV), however, subsection (c)(3)(V) requires the court to

 take specific actions. The “court shall cause a complete copy of

 [the] motion to be served on the prosecuting attorney,” and if the

 defendant has requested counsel in the motion, “the court shall

 cause a complete copy of [the] motion to be served on the Public

 Defender.” Crim. P. 35(c)(3)(V). The public defender’s office then

 has forty-nine days to inform the court whether it intends to

 represent the defendant, “identify whether any conflict exists,

 request any additional time needed to investigate, and add any

 claims the Public Defender finds to have arguable merit.” Id. The

 court must then order the prosecution to respond and the

 defendant to reply. Id. Once the parties have filed their pleadings,

 “the court shall grant a prompt hearing on the motion unless, based


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 on the pleadings, the court finds that it is appropriate to enter a

 ruling containing written findings of fact and conclusions of law.”

 Id.

                B. Preservation and Standard of Review

¶6     The parties dispute whether Higgins preserved his argument

 that the district court erred by sending his motion to the prosecutor

 without also sending it to the public defender’s office. Higgins

 contends that he preserved this issue by requesting counsel in his

 motion; the People respond that he also needed to object once the

 court sent the motion to the prosecution but not the public

 defender’s office.

¶7     We agree with Higgins.

¶8     A defendant preserves an issue for appeal if he or she alerts

 the trial court to the particular issue. People v. Cordova, 293 P.3d

 114, 120 (Colo. App. 2011).

¶9     Under Crim. P. 35(c)(3)(V), if the court does not summarily

 deny the defendant’s motion, “the court shall cause a complete

 copy” of the motion to be served on the Public Defender if “the

 defendant has requested counsel be appointed in the motion.” By

 requesting counsel in his motion, then, Higgins sufficiently alerted


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  the court to the issue he pursues on appeal. See Crim. P.

  35(c)(3)(V).

¶ 10   Even so, the People rely on People v. Davis, 2012 COA 14,

  ¶ 13, in which the division noted that the defendant “requested

  appointment of an attorney and objected to the court’s failure to

  allow the Public Defender to respond.” Although the defendant in

  Davis happened to have requested counsel and also objected to the

  court’s action, we do not read Davis to hold that a defendant must

  take both of those steps to preserve a claim that the district court

  erred by not sending the defendant’s motion to the public defender’s

  office under Crim. P. 35(c)(3)(V). And, given Crim. P. 35(c)(3)(V)’s

  clear, mandatory language, we hold that a defendant need only

  request appointed counsel in a Crim. P. 35(c) motion to preserve

  such a claim.

¶ 11   We review de novo a district court’s decision to deny a Crim. P.

  35(c) motion without a hearing. People v. Lopez, 2015 COA 45,

  ¶ 68. We also review de novo interpretations of the rules of criminal

  procedure. People v. Corson, 2016 CO 33, ¶ 44.




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                                  C. Analysis

¶ 12     In Davis, the defendant filed a Crim. P. 35(c) motion in which

  he requested counsel. Davis, ¶ 4. The district court ordered the

  prosecution to respond but did not serve a copy of the defendant’s

  motion on the public defender’s office. Id. at ¶ 5. The prosecution

  filed a response with an affidavit attached. Id. at ¶ 10. After

  reviewing the response, the district court denied the defendant’s

  motion without permitting the public defender’s office to respond.

  Id. at ¶ 5. The Davis division reversed, agreeing “that the district

  court erred by referring [the defendant’s] motion to the prosecution

  without also sending a copy to the Public Defender in accordance

  with the procedures outlined in Crim. P. 35(c)(3)(IV) and (V).” Id. at

  ¶ 7.

¶ 13     Just as in Davis, the district court in this case did not

  summarily deny the postconviction motion. Instead, it sent a copy

  of the motion to the prosecution, but not to the public defender’s

  office, and denied the postconviction motion after reviewing the

  prosecution’s response. We conclude that the district court erred

  by departing from the mandatory procedure outlined by Crim. P.

  35(c)(3)(IV) and (V). See id.


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¶ 14      The People contend, however, that Crim. P. 35(c)(3)(V) did not

  require the district court to send a copy of Higgins’s motion to the

  public defender’s office. The People again rely on Davis, noting that

  the district court in that case considered not only the prosecution’s

  response but also the attached affidavit. Id. at ¶ 10. Considering

  the affidavit, the People contend, triggered the district court’s duty

  in Davis to serve a copy of the defendant’s motion on the public

  defender’s office. And, because the district court here did not

  consider evidence (such as an affidavit) outside of the record, the

  People maintain that the district court had no duty to serve

  Higgins’s motion on the public defender’s office. The People’s

  position finds support in Davis: “the requirement of service on the

  Public Defender is triggered when the court finds that it is

  necessary to consider matters outside of the motion, files, and

  record of the case (here, an affidavit that was provided by the

  government and was not part of the underlying proceedings).” Id. at

  ¶ 12.

¶ 15      But, Crim. P. 35(c)(3)(V)’s plain language ultimately forecloses

  the People’s argument. Under the rule, the event that triggers a




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  district court’s duty to comply with Crim. P. 35(c)(3)(V)’s procedure

  is its decision not to summarily deny the defendant’s motion.

¶ 16   We next consider whether the district court’s error was

  harmless. See id. at ¶ 13. An error is not harmless, as relevant

  here, if it affected the fairness of the district court proceedings. See

  Hagos v. People, 2012 CO 63, ¶ 12.

¶ 17   The People contend that the district court’s error was harmless

  because the merits of Higgins’s claims did not entitle him to relief

  and also because his motion was successive. We do not consider

  the merits of Higgins’s claims to determine whether the court’s error

  was harmless. This is so because harmlessness can never be

  measured by the face of the motion because the Public Defender

  can add claims to the defendant’s motion. See Crim. P. 35(c)(3)(V)

  (“In such response, the Public Defender shall . . . add any claims

  the Public Defender finds to have arguable merit.”). That is, the

  district court’s decision not to send Higgins’s postconviction motion

  to the public defender’s office deprived Higgins of the opportunity to

  have the public defender’s office respond or add any claims with

  arguable merit. See Davis, ¶ 14. “Because the procedures

  mandated by Crim. P. 35(c)(3)(V) inure to the defendant’s benefit,


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  we must conclude that the court’s failure to comply may have

  prejudiced” Higgins. Id.

¶ 18   And, we disagree with the People’s claim that Higgins’s Crim.

  P. 35(c) motion was successive. A district court must deny any

  Crim. P. 35(c) claim that was raised and resolved, or that could

  have been raised, in a prior appeal or postconviction proceeding.

  Crim. P. 35(c)(3)(VI), (VII). The People contend that Higgins raised,

  or could have raised, his current ineffective assistance claims in his

  third Crim. P. 35(b) motion. The People correctly point out that

  Higgins’s third Rule 35(b) motion cited his lawyer’s alleged

  ineffective assistance as grounds to reduce his sentence. Indeed,

  the district court even “determine[d] the motion [was] properly

  within” Crim. P. 35(c). We do not adopt that determination,

  however. Although the motion alleged that Higgins received

  ineffective assistance, the only remedy that it sought was a reduced

  sentence — which Crim. P. 35(b), not (c), authorizes. So, Higgins’s

  current Crim. P. 35(c) claims are not successive.

¶ 19   We recognize that the parties dispute the merits of Higgins’s

  claims and whether the allegations in his motion warranted a

  hearing. We therefore emphasize that our discussion reaches only


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  the district court’s procedure; we express no opinion about the

  merits of Higgins’s claims, about whether his claims require a

  hearing, or about whether Higgins will be entitled to postconviction

  counsel. See Davis, ¶ 15; see also Silva v. People, 156 P.3d 1164,

  1168 (Colo. 2007) (concluding that “the court and the state public

  defender’s office must find that a defendant’s Crim. P. 35(c) motion

  has arguable merit before the statutory right to post-conviction

  counsel is triggered”).

                             III. Conclusion

¶ 20   The order denying Higgins’s motion is reversed, and the case is

  remanded with directions for the district court to proceed according

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

       JUDGE WELLING and JUDGE DAVIDSON concur.




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