COLORADO COURT OF APPEALS                                          2016COA93


Court of Appeals No. 15CA0080
El Paso County District Court No. 10CR4367
Honorable David S. Prince, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Lee Hunt,

Defendant-Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                          Opinion by JUDGE DAILEY
                      Taubman and Sternberg*, JJ., concur

                           Announced June 16, 2016


Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Elizabeth Stovall, Alternate Defense Counsel, 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. 2015.
¶1    Defendant, Robert Lee Hunt, appeals the district court’s order

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

 reverse and remand for an evidentiary hearing on two ineffective

 assistance of counsel claims.

                           I.    Background

¶2    Defendant was charged with first degree “after deliberation”

 murder, first degree “extreme indifference” murder, conspiracy to

 commit murder, possession of a weapon by a previous offender, and

 three crime of violence (sentencing enhancement) counts. Pursuant

 to a plea agreement, defendant pleaded guilty to an added count of

 second degree murder and to one of the original crime of violence

 counts in exchange for (1) the dismissal of the remaining charges

 and (2) a stipulated sentence of between thirty and forty years

 imprisonment in the Department of Corrections.

¶3    At defendant’s January 2012 providency hearing, plea counsel

 provided the court with the following factual basis for the second

 degree murder charge for which defendant was about to plead

 guilty:

           [O]n July 28, [2010], [defendant] was the
           victim of a home invasion, not . . . knowing
           exactly who were the perpetrators of the home


                                   1
            invasion. [Defendant] along with an[other]
            individual [(the shooter)] . . . decided that the
            people responsible for the home invasion
            would be killed. [Defendant] utilized [the
            shooter] because [the shooter] had a weapon.
            On the night of the murder, [the shooter] told
            [defendant] that one of the robbers of the home
            invasion was located at [an apartment
            complex].

                  They proceeded then to [the apartment
            complex] . . . [and] saw an individual standing
            outside. [The shooter] believed that to be one
            of the home invaders so [the shooter] called
            [the individual] over to the car.

                  [Defendant] said, that’s not one of the
            guys that did the home invasion. However,
            then [the shooter] had a conversation with this
            individual . . . [and] then shot [him].

¶4    In March and July 2012, defendant wrote two letters to the

 district court, asking to withdraw his guilty plea. In his letters,

 defendant asserted that (1) he was not guilty of murder because he

 had not intended for the shooter to kill the victim; and (2) his

 attorney had erroneously advised him that he could, if tried, be

 found guilty (and sentenced to life imprisonment) under a

 complicity theory.

¶5    On July 19, 2012, plea counsel filed a motion to withdraw

 from the case based on an alleged conflict of interest and requested



                                    2
 the court allow defendant to withdraw his guilty plea. The motion,

 which was very short, was based on defendant’s assertion that he

 had received ineffective assistance of counsel.1 On July 30, 2012,

 the court held a hearing on the motion; found no conflict of interest

 between counsel and defendant; and directed counsel to file, on

 defendant’s behalf, a Crim. P. 32(d) motion to withdraw guilty plea.

¶6    Three days later — the day before sentencing — plea counsel

 filed the Crim. P. 32(d) motion, in which she noted:

          Defendant had “previously requested to withdraw his

           [guilty] plea due to an ineffective counsel/conflict claim.

           A conflict hearing was held and the court at that time

           determined there was no conflict nor was there a showing

           that counsel was ineffective.”

          Defendant “contends that he was never fully advised of

           the definition of complicity by counsel. [He] contends

           that he never understood that complicity required that he

           have actual knowledge that the other person intended to

           commit all or part of the crime. He also “contends that

 1Counsel related that because of the attorney-client privilege, she
 was not at liberty to disclose in the motion the specifics of the
 conflict between her and defendant.

                                   3
           he thought being at the scene of the crime was enough

           for conviction under a complicity theory” but, after doing

           his own research, realizes that “mere presence is not

           enough to result in a complicity conviction [sic].”

          Defendant “contends that he had no knowledge that the

           codefendant in this case was going to shoot the victim”

           and therefore he “could not be found guilty of murder

           pursuant to a complicity theory, nor could he be

           convicted as the principal since he did not fire the

           weapon that killed the victim.”

          If defendant “fail[ed] to understand the requirements of

           complicity” as he contended, then he “did not have an

           adequate understanding of what he was pleading to [and]

           . . . has a fair and just reason to withdraw his plea.”

¶7    Without addressing the Crim. P. 32(d) motion, the district

 court sentenced defendant to a term of forty years imprisonment in

 the custody of the Department of Corrections.

¶8    Subsequently, defendant filed two pro se Crim. P. 35(c)

 motions for postconviction relief based on claims of ineffective

 assistance of plea counsel. As pertinent here, defendant alleged

                                   4
  that he had pleaded guilty based on counsel’s incorrect advice that

  he could be found guilty of murder as a complicitor simply because

  he was present when a person he had not intended to be killed was

  killed.

¶9      The district court appointed defendant new counsel, who

  subsequently filed a supplemental motion (1) expounding on

  defendant’s pro se arguments and (2) asserting that plea counsel

  was also ineffective in failing to advise defendant that he could

  appeal the apparent denial of the Crim. P. 32(d) motion.2

¶ 10    Without holding a hearing, the court denied the Crim. P. 35(c)

  motions for postconviction relief. In its written order, the court

  found, in pertinent part, that

             under the facts recited at the providency hearing, the law

              of complicity, and the doctrine of transferred intent

              applied in People v. Candelaria, 107 P.3d 1080, 1091-92

              (Colo. App. 2004), aff’d in part and rev’d in part, 148 P.3d

              178 (Colo. 2006), counsel’s advice was accurate; and

  2Defendant also alleged other grounds of ineffective assistance of
  counsel. Because, however, he does not address those other
  grounds in his appeal, they are deemed abandoned and will not be
  addressed here. See People v. Brooks, 250 P.3d 771, 772 (Colo.
  App. 2010).

                                      5
           even assuming plea counsel failed to advise defendant of

             his right to appeal from a denial of a motion to withdraw

             guilty plea, defendant was not entitled to relief because

             he “identifie[d] no plausible appellate challenge to the

             denial of his request to withdraw his plea.”

               II.   Ineffective Assistance of Plea Counsel

¶ 11   On appeal, defendant contends that the court erred in

  summarily denying his postconviction motion. Specifically, he

  asserts that he was at least entitled to a hearing on his assertions

  that plea counsel was ineffective for (1) inaccurately advising him of

  the requisite elements of the offense to which he pleaded and

  (2) failing to advise him that he could appeal the court’s denial of

  his Crim. P. 32(d) motion. We agree.

¶ 12   Ineffective assistance of counsel may constitute an adequate

  ground for relief under both Crim. P. 32(d) and 35(c). People v.

  Lopez, 12 P.3d 869, 871 (Colo. App. 2000).3



  3“[A Crim. P. 32(d)] motion to withdraw a plea of guilty may only be
  made before sentence is imposed or imposition of sentence is
  suspended. . . . [A]fter sentence has been imposed, the validity of a
  guilty plea can be challenged under Crim. P. 35(c).” People v.
  Dawson, 89 P.3d 447, 449 (Colo. App. 2003) (citation omitted).

                                     6
¶ 13    To prevail on a claim of ineffective assistance of counsel, a

  defendant must establish that (1) counsel’s performance fell below

  the level of reasonably competent assistance demanded of attorneys

  in criminal cases and (2) the deficient performance prejudiced the

  defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

  accord Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).

¶ 14    A motion raising ineffective assistance of counsel may be

  denied without a hearing “if, but only if, the existing record

  establishes that the defendant’s allegations, even if proven true,

  would fail to establish one or the other prong of the Strickland test.”

  Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

             If a criminal defendant has alleged acts or
             omissions by counsel that, if true, could
             undermine confidence in the defendant’s
             conviction or sentence, and the motion, files,
             and record in the case do not clearly establish
             that those acts or omissions were reasonable
             strategic choices or otherwise within the range
             of reasonably effective assistance, the
             defendant must be given an opportunity to
             prove they were not.

  Id.




                                     7
                           A.   Pre-Plea Advice

¶ 15   Initially, defendant asserts that (1) plea counsel improperly

  advised him that “neither mens rea nor actus reus was an element

  of the offense to which he pled”; and (2) had he (defendant) known

  there was a mens rea element to the crime, he would not have

  pleaded guilty. The record, however, refutes defendant’s assertion

  that he did not know that there was a mens rea element to the

  crime with which he was charged.

¶ 16   The prosecution pursued charges against defendant on a

  complicity theory — a theory by which a person is held accountable

  for a criminal offense committed by another. People v. Theus-

  Roberts, 2015 COA 32, ¶ 35. Under the complicity statute, “[a]

  person is legally accountable as [a] principal for the behavior of

  another constituting a criminal offense if, with the intent to promote

  or facilitate the commission of the offense, he or she aids, abets,

  advises, or encourages the other person in planning or committing

  the offense.” § 18-1-603, C.R.S. 2015. As pertinent in this case,

  “[a] person commits the crime of murder in the second degree if the

  person knowingly causes the death of a person.” § 18-3-103(1),

  C.R.S. 2015 (emphasis added).


                                     8
¶ 17   At the providency hearing, the court specifically informed

  defendant that the crime to which he was about to enter a plea had

  mens rea components:

            THE COURT: “So let me talk to you a little bit
            about the elements here that the defendant,
            that is you, in the State of Colorado, on or
            about July 30, 2010 knowingly caused the
            death of another person, that person would be
            [the victim]. . . .

            ....

             . . . Now I’ve talked to your counsel earlier
            kind of what the theory is here. I’ll talk to you
            a little bit about it as well. But it’s written
            here per complicity and I’m sure that [plea
            counsel] has talked to you a little bit about
            what that means.

            THE DEFENDANT: Yes, sir.

            THE COURT: Okay. Complicity just generally
            a crime must have been committed, another
            person must have committed all or part of the
            crime. The defendant must have had
            knowledge that the other person intended to
            commit all or part of that crime and the
            defendant must have the intent to promote or
            facilitate the commission of the crime and the
            defendant must have aided, abetted, advised
            or encouraged the person in the plan of
            committing the crime without any potential
            affirmative defenses so that’s generally what
            complicity means.

            ....


                                    9
            Have you talked generally with your counsel
            about these concepts . . . of complicity and
            conspiracy?

            THE DEFENDANT: Yes.

  (Emphasis added.)

¶ 18   But, defendant asserts, neither the court nor plea counsel

  informed him that to be guilty as a complicitor, he must have

  known that another person was going to kill the victim and he must

  have intended, by his own conduct, to promote or facilitate the

  other person’s act of killing that victim — circumstances which

  were lacking under the factual basis provided by plea counsel.4

  Defendant went forward with the plea, he says, only because plea

  counsel “told him he could be found guilty simply based on his

  presence in the car when [the shooter] shot [the victim].”

¶ 19   The district court assumed that counsel had advised (or failed

  to advise) defendant as defendant alleged counsel did, and it

  determined that counsel’s advice or lack of advice did not constitute

  deficient performance on her part. The district court reached this


  4 The “dual intent” requirement upon which defendant relies comes
  from Bogdanov v. People, 941 P.2d 247, 250-51 (Colo. 1997),
  amended, 955 P.2d 997 (Colo. 1997). The supreme court, however,
  has since altered that requirement. See People v. Childress, 2015
  CO 65M, ¶¶ 30, 34.

                                   10
  conclusion based on the Candelaria division’s discussion of how

  complicity operates in conjunction with the doctrine of “transferred

  intent.” In this regard, the Canderlaria division wrote:

             We conclude that a person who intends to aid
             the principal in committing murder and who
             possesses the intent to murder a person is
             criminally liable for the killing of an
             unintended third party by the principal. The
             killing of an unintended person is within the
             scope of the “particular crimes” that the
             perpetrators conspired to promote or facilitate
             — first degree murder. To adopt defendant’s
             argument would provide an absurd result
             where the principal would be guilty of first
             degree murder of an unintended victim while a
             complicitor, who assists in facilitating and
             promoting the crime, is exonerated. This
             result would defeat the purpose of the
             complicity statute . . . .

  107 P.3d at 1092.

¶ 20   On appeal, defendant contends that the district court erred (1)

  in determining that the doctrine of transferred intent applies to

  crimes other than first degree murder (which was the charge in

  Candelaria) or (2) in its application of the transferred intent

  doctrine. We reject defendant’s first point but agree with his

  second.




                                     11
¶ 21   In Candelaria, the division recognized that the first degree

  murder statute, by its terms, “incorporates the doctrine of

  transferred intent and holds a principal liable for the death of an

  unintended victim.” Id. at 1091; see § 18-3-102(1)(a), C.R.S. 2015

  (A person commits first degree murder after deliberation where

  “[a]fter deliberation and with the intent to cause the death of a

  person other than himself, he causes the death of that person or of

  another person.”) (emphasis added).

¶ 22   Defendant points out that the second degree murder statute

  does not contain such language. Nevertheless, in People v. Marcy,

  628 P.2d 69 (Colo. 1981), the supreme court concluded that the

  doctrine of transferred intent applies to second degree murder:

             There is no requirement that the knowing
             conduct essential to extreme indifference
             murder and second degree murder be directed
             against the person actually killed. On the
             contrary, both offenses are general intent
             crimes, and as long as the offender knowingly
             acts in the proscribed manner and causes the
             death of another, he is guilty of the crime even
             though the person killed is not the person
             against whom the criminal conduct was
             directed.

  Id. at 79 (citation omitted).




                                    12
¶ 23   Although the second degree murder statute was amended after

  Marcy was decided, the statutory change did not alter the general

  intent requirement described in Marcy. See Ch. 295, sec. 12, § 18-

  3-103, 1996 Colo. Sess. Laws 1844. Therefore, we are bound by

  this holding. See People v. Allen, 111 P.3d 518, 520 (Colo. App.

  2004) (noting the Colorado Court of Appeals is “bound by the

  decisions of the Colorado Supreme Court”).

¶ 24   Turning to the court’s application of the transferred intent

  doctrine, we note that

            [t]he doctrine . . . is a legal fiction that is used
            to hold a defendant criminally liable to the full
            extent of his or her criminal culpability.
            Traditionally, the transferred intent theory has
            been applied in so-called “bad aim” situations
            where a defendant, while intending to kill one
            person, accidentally kills an innocent
            bystander or another unintended victim. . . .
            Thus, the perpetrator’s intent to kill or injure a
            specific victim transfers to the unintended
            victim.

             . . . The purpose of the doctrine is to impose
            criminal liability upon an actor when he or she
            intends to commit a criminal act, and “the
            actual result differs from the result designed or
            contemplated only in that a different person or
            property was injured or affected.”




                                    13
  State v. Fekete, 901 P.2d 708, 714 (N.M. 1995) (citations omitted)

  (quoting Model Penal Code § 2.03(2)(a) cmt. 3 (1985)); see People v.

  Fernandez, 673 N.E.2d 910, 913 (N.Y. 1996) (“The doctrine of

  ‘transferred intent’ serves to ensure that a person will be prosecuted

  for the crime he or she intended to commit even when, because of

  bad aim or some other ‘lucky mistake,’ the intended target was not

  the actual victim.” (quoting People v. Birreuta, 208 Cal. Rptr. 635,

  639 (Cal. Ct. App. 1984))).

¶ 25   In Candelaria, the defendant and others sought to find and kill

  a particular individual with whom they had earlier exchanged

  gunfire; when they saw that individual’s car, the defendant’s

  passenger opened fire at it, killing not that individual but someone

  else. 107 P.3d at 1084. As defendant points out, that was a classic

  transferred intent scenario: the perpetrator (the passenger in the

  car) missed his intended target and hit someone else.

¶ 26   Here, taking as true the facts presented at the providency

  hearing, there was no unintended victim, within the meaning of the

  transferred intent doctrine. There was no mistake, on the part of

  the shooter: he did not think he was shooting someone else, nor did

  he try to shoot someone else but accidentally hit the victim.


                                    14
  Instead, the shooter meant to kill the very person that he did kill,

  and that person was not someone defendant wanted to kill.

¶ 27   The district court viewed the “transferred intent” doctrine from

  defendant’s perspective — that is, that he had intended to kill a

  particular person but not the victim. But the People have cited no

  authority, and we have found none, applying the “transferred

  intent” doctrine from the perspective of a person who was not the

  one who actually committed the crime itself. To the contrary, at

  least one commentator has noted that when, as was alleged here,

  “the direct perpetrator deliberately changes the object of the offence,

  the doctrine of transferred malice does not apply to the indirect

  participant despite the fact that from his point of view the

  displacement of harm was accidental.” Shachar Eldar, Examining

  Intent Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 42

  (2015).5


  5 In the course of his article, Eldar presented three scenarios where
  the “Direct Perpetrator [of a Crime] Caused a Change of Object”;
  noted that “English law . . . distinguished deviation caused by
  accident (scenario 4) or mistake (scenario 5) from deliberate
  deviation (scenario 6)”; and explained that “the indirect participant
  is not liable if the direct perpetrator deviated purposefully from the
  plan, as, for example, if he received a knife to kill A and resolves to
  use the knife to kill B instead.” Shachar Eldar, Examining Intent

                                    15
¶ 28   Nor would “complicity” principles necessarily make defendant

  responsible for second degree murder under the facts presented at

  the providency hearing. In Bogdanov v. People, 941 P.2d 247 (Colo.

  1997), amended, 955 P.2d 997 (Colo. 1997), the supreme court

  noted:

             [S]ome jurisdictions have complicity statutes
             that would hold an accomplice liable for any
             crimes that are a reasonably foreseeable
             consequence of the crime which the
             accomplice intended to aid or encourage. The
             Colorado General Assembly chose not to
             extend accomplice liability to reasonably
             foreseeable crimes, but rather limited such
             liability to those particular crimes which the
             accomplice intended to promote or facilitate.

  Id. at 251 n.8 (citation omitted).

¶ 29   Under Colorado law,

             a person is legally accountable as a principal
             for the behavior of another constituting a
             criminal offense if he aids, abets, advises, or
             encourages the other person in planning or
             committing that offense, and he does so with:
             (1) the intent to aid, abet, advise, or encourage
             the other person in his criminal act or
             conduct, and (2) an awareness of
             circumstances attending the act or conduct he
             seeks to further, including a required mental



  Through the Lens of Complicity, 28 Can. J.L. & Juris. 29, 39-41
  (2015).

                                       16
             state, if any, that are necessary for
             commission of the offense in question.

  People v. Childress, 2015 CO 65M, ¶ 34.

¶ 30   Applied to the facts as presented at the providency hearing,

  the principles announced in Bogdanov and Childress may not

  support complicitor liability for the crime of first or second degree

  murder. While it may have been foreseeable that someone would be

  killed when the two men started out that night, defendant’s liability

  does not, under Bogdanov, depend on the foreseeability of the

  result. Rather, it must be tied to his own intent and awareness of

  the circumstances under which his confederate acted. Defendant’s

  position is, apparently, that he was not aware until it was too late

  that the shooter intended to kill someone other than a person whom

  defendant wanted to kill. These facts, if true, would not support a

  conviction of defendant for first or second degree murder under a

  complicitor theory. See Childress, ¶¶ 31-32 (discussing the mental

  states required of a principal and complicitor for “knowing” or

  “specific intent” crimes).

¶ 31   Because the facts, as presented at the providency hearing,

  would not support a conviction for first or second degree murder



                                    17
  based on transferred intent and complicity principles, any failure on

  the part of plea counsel to so advise defendant could have

  constituted deficient performance. See Carmichael v. People, 206

  P.3d 800, 806 (Colo. 2009) (“[C]ounsel’s failure to present defendant

  with the opportunity to make [a] reasonably informed decision

  [whether to accept a plea offer] will constitute deficient

  representation.”).

¶ 32   Because the court summarily denied defendant’s

  postconviction motion, the record does not disclose whether, in fact,

  plea counsel misadvised (or failed to properly advise) defendant;

  whether any failure on the part of counsel to properly advise

  defendant would have been unreasonable under the then-prevailing

  professional norms;6 or, if so, whether defendant would likely have



  6 See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair
  assessment of attorney performance requires that every effort be
  made to eliminate the distorting effects of hindsight, to reconstruct
  the circumstances of counsel’s challenged conduct, and to evaluate
  the conduct from counsel’s perspective at the time.”); Everett v.
  Sec’y, Fla. Dep’t of Corr., 779 F.3d 1212, 1249 (11th Cir. 2015)
  (“The Strickland performance standard is objectively reasonable
  attorney conduct under prevailing professional norms. We look at
  what professional norms existed at the time that the attorney
  acted.”) (citations omitted); People v. Ray, 2015 COA 92, ¶ 37
  (“Strickland’s deficient performance prong is governed by the law as

                                     18
  pleaded guilty anyway.7 Consequently, a remand for an evidentiary

  hearing on these matters is necessary.

        B.     Failure To Advise Defendant of His Right To Appeal

¶ 33   Defendant also contends that the district court erred in

  denying his claim that plea counsel was ineffective in failing to

  advise him about appealing the ruling on his Crim. P 32(d) motion

  to withdraw guilty plea. Again, we conclude that a remand is

  necessary.

¶ 34   Twenty-five days after the court sentenced defendant,

  defendant filed a pro se pleading, titled “Written Notice of Appeal /

  Review of Sentence Will Be Sought,” informing the court that he

  wished to “appeal the court’s decision [denying Rule 32(d) relief] and

  . . . [his] sentence,” and requesting that the court appoint him an

  attorney. No attorney was appointed; no appeal was taken.




  it stood at the time of counsel’s allegedly deficient performance
  . . . .”).

  7 In the guilty plea context, the question of ineffective assistance of
  counsel “prejudice” is analyzed in terms of whether there is a
  reasonable probability that, but for counsel’s unprofessional errors,
  the defendant would not have pleaded guilty. Hill v. Lockhart, 474
  U.S. 52, 59 (1985); People v. Garcia, 815 P.2d 937, 943 (Colo.
  1991).

                                    19
¶ 35   Subsequently, in the supplemental Crim. P. 35(c) motion,

  postconviction counsel asserted that plea counsel was ineffective in

  “fail[ing] to advise [defendant] he had a right to appeal the denial of

  his 32(d) motion and his sentence.”

¶ 36   The district court found that, even if it assumed plea counsel

  failed to advise defendant of his right to appeal, defendant was not

  entitled to relief because he had “identifie[d] no plausible appellate

  challenge to the denial of his request to withdraw his pleas,” and

  therefore, he was not prejudiced.

¶ 37   Before turning to the merits of this issue, we must first

  address a point raised by the People — that is, that the record does

  not reflect that the district court ever ruled on the Crim. P. 32(d)

  motion, and thus there was nothing for defendant to appeal or be

  advised of appealing.

¶ 38   Ordinarily, we would, as urged by the People, not give any

  further consideration to this issue. See Feldstein v. People, 159

  Colo. 107, 111, 410 P.2d 188, 191 (1966) (“[I]t is incumbent on the

  moving party to see to it that the court rules on the matter he

  urges. The trial court should be afforded the opportunity to so rule;

  otherwise, the matter will ordinarily not be considered on writ of


                                      20
  error.”), abrogated on other grounds by Deeds v. People, 747 P.2d

  1266 (Colo. 1987); People v. Young, 923 P.2d 145, 149 (Colo. App.

  1995) (“[B]ecause he failed to request [from the trial court] a ruling

  on this issue, defendant has waived it on appeal.”).

¶ 39   However, in this case, it was the district court that, only four

  days before sentencing, ordered plea counsel to file the Crim. P.

  32(d) motion. And, because the judge at sentencing was the same

  judge who had ordered that the motion be filed, the district court

  could reasonably have expected — and not been surprised by — the

  filing of the motion.

¶ 40   Further, the judge who ordered the motion to be filed and who

  sentenced defendant was the same judge who ruled on defendant’s

  motions for postconviction relief. In denying relief on this part of

  defendant’s postconviction motions, that judge did not base his

  decision on any lack of a ruling on the Rule 32(d) motion. If

  anything, he appeared to consider the Rule 32(d) motion to have

  been implicitly denied when he proceeded to sentencing. We will

  consider it in this same fashion on appeal.

¶ 41   Turning to the merits of defendant’s ineffective assistance of

  counsel claim, the United States Supreme Court has said that “a


                                    21
lawyer who disregards specific instructions from the defendant to

file a notice of appeal acts in a manner that is professionally

unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In

other cases, however,

          where the defendant neither instructs counsel
          to file an appeal nor asks that an appeal not be
          taken, . . . whether counsel has performed
          deficiently . . . is best answered by first asking
          . . . whether counsel in fact consulted with the
          defendant about an appeal. We employ the
          term ‘consult’ to convey a specific meaning —
          advising the defendant about the advantages
          and disadvantages of taking an appeal, and
          making a reasonable effort to discover the
          defendant’s wishes. If counsel has consulted
          with the defendant, the question of deficient
          performance is easily answered: Counsel
          performs in a professionally unreasonable
          manner only by failing to follow the
          defendant’s express instructions with respect
          to an appeal. If counsel has not consulted
          with the defendant, the court must in turn ask
          . . . whether counsel’s failure to consult with
          the defendant itself constitutes deficient
          performance.

          ....

          . . . [C]ounsel has a constitutionally imposed
          duty to consult with the defendant about an
          appeal when there is reason to think either (1)
          that a rational defendant would want to appeal
          (for example, because there are nonfrivolous
          grounds for appeal), or (2) that this particular
          defendant reasonably demonstrated to counsel


                                  22
             that he was interested in appealing. In making
             this determination, courts must take into
             account all the information counsel knew or
             should have known. . . . Even in cases when
             the defendant pleads guilty, the court must
             consider such factors as whether the
             defendant received the sentence bargained for
             as part of the plea and whether the plea
             expressly reserved or waived some or all appeal
             rights. Only by considering all relevant factors
             in a given case can a court properly determine
             whether a rational defendant would have
             desired an appeal or that the particular
             defendant sufficiently demonstrated to counsel
             an interest in an appeal.

  Id. at 478-80 (citation omitted).

¶ 42   Here, either defendant or plea counsel filed several letters or

  motions seeking to withdraw the guilty plea on the basis of a

  purported misadvisement (and therefore misunderstanding) of the

  elements of the offense for which defendant entered his plea. And,

  twenty-five days after sentencing, defendant filed a pro se “notice of

  appeal” in the district court.

¶ 43   Given defendant’s letters, plea counsel’s motions, and

  defendant’s pro se notice of appeal, the record contains ample

  reason to perceive that defendant would want to appeal the denial

  of his motion to withdraw his plea and that he had reasonably

  demonstrated that interest. The record reflects that plea counsel


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  was still representing defendant several months after sentencing.

  For purposes of this appeal, we, like the district court, will assume

  that plea counsel should have consulted with and advised

  defendant about his right to appeal,8 but did not do so. Cf. Flores-

  Ortega, 528 U.S. at 481 (“We expect that courts evaluating the

  reasonableness of counsel’s performance using the inquiry we have

  described will find, in the vast majority of cases, that counsel had a

  duty to consult with the defendant about an appeal.”).

¶ 44   We, however, disagree with the court’s finding that defendant

  had not been prejudiced because he had “identifie[d] no plausible

  appellate challenge to the denial of his request to withdraw his

  pleas.” In this context, ineffective assistance of counsel “prejudice”

  is demonstrated not by the existence of plausible appellate

  arguments, but rather by a showing that “there is a reasonable

  probability that, but for counsel’s deficient failure to consult with

  8 “[A]dequate consultation requires informing a client about his
  right to appeal, advising the client about the advantages and
  disadvantages of taking an appeal, and making a reasonable effort
  to determine whether the client wishes to pursue an appeal,
  regardless of the merits of such an appeal.” Thompson v. United
  States, 504 F.3d 1203, 1206 (11th Cir. 2007). Counsel should also
  inform a defendant that he is obligated to file an appeal if that is
  what the defendant requests. Id. at 1207.


                                    24
  [the defendant] about an appeal, [the defendant] would have timely

  appealed.” Id. at 484; accord People v. Pendleton, 2015 COA 154,

  ¶ 38.

¶ 45      Because the court summarily denied defendant’s claim, the

  record does not reflect whether plea counsel had consulted

  defendant about appealing; what, if any, advice plea counsel might

  have given defendant about appealing;9 what instructions defendant

  may have given counsel; and, whether there is a reasonable

  probability that defendant’s failure to timely appeal the denial of his

  Rule 32(d) motion and sentence was attributable to counsel’s advice

  or lack of advice. Consequently, the matter must be remanded for

  an evidentiary hearing on these issues.

                              III.   Conclusion

¶ 46      The order is reversed and the case is remanded for an

  evidentiary hearing on the two claims of ineffective assistance of

  counsel discussed in this opinion.


  9 For example, whether counsel informed defendant that, although
  she could file an appeal on his behalf, she herself could not pursue
  that appeal because of the nature of the underlying issue (i.e., her
  alleged ineffectiveness). Thus, the appeal, once perfected, would
  need to be pursued either by conflict-free counsel or by defendant
  himself.

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¶ 47   If defendant demonstrates that his guilty plea is infirm as a

  result of plea counsel’s ineffective assistance, the district court shall

  vacate the judgment of conviction and reinstate the original

  charges, without needing to address defendant’s second claim.

¶ 48   If, however, defendant does not succeed in setting his

  conviction aside, the court shall consider defendant’s second claim.

  If the district court determines, with respect to that claim, that

  defendant was deprived of his appellate rights as a result of

  ineffective assistance of plea counsel, the court shall appoint

  counsel for direct appeal and order counsel to file, in this court, a

  motion to allow a late-filed notice of appeal with, as proof of good

  cause for the late appeal, the district court’s order finding ineffective

  assistance of plea counsel. See People v. Long, 126 P.3d 284, 287

  (Colo. App. 2005).

¶ 49   The district court’s rulings on remand are subject to appeal by

  either party.

¶ 50   JUDGE TAUBMAN and JUDGE STERNBERG concur.




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