COLORADO COURT OF APPEALS                                     2016COA175


Court of Appeals No. 14CA0710
City and County of Denver District Court No. 87CR1542
Honorable Elizabeth A. Starrs, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Daniel Hardin,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division VI
                           Opinion by JUDGE FOX
                       Bernard and Richman, JJ., concur

                         Announced December 1, 2016


Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
¶1    Defendant, William Daniel Hardin, appeals the postconviction

 court’s long-awaited order denying his Crim. P. 35(c) motion for

 postconviction relief.1 We affirm.

                           I.    Background

¶2    Hardin was accused of robbing three men, Isaac Fisher, Victor

 Irving, and Lloyd Rhodes, and of killing two of the men, Fisher and

 Irving. The prosecution charged Hardin with one count of

 aggravated robbery for the robbery of all three men and with two

 counts each of felony murder and murder after deliberation with

 respect to the killings of Fisher and Irving. When Hardin’s 1988

 trial concluded, the jury found him guilty by separate verdict forms

 of two counts of aggravated robbery regarding Irving and Rhodes

 and two counts each of felony murder and murder after deliberation

 with respect to Fisher and Irving. The jury acquitted Hardin of the

 aggravated robbery count with respect to Fisher.

¶3    The trial court entered a judgment of conviction and sentenced

 Hardin to consecutive terms of imprisonment of sixteen years for

 each aggravated robbery conviction and life for each felony murder

 1 The third and final district court judge to preside over this case
 finally took action after years of inaction by the judge’s two
 predecessors.
                                      1
 conviction. It did not sentence Hardin on the murder after

 deliberation convictions.2

¶4    Several months after the trial, Hardin filed a notice of appeal

 regarding the judgment of conviction. Soon after, he requested and

 was granted a limited remand to pursue an ineffective assistance

 claim, pursuant to Crim. P. 35(c), concerning his trial counsel. To

 avoid a conflict of interest, the public defender’s office was allowed

 to withdraw from the postconviction proceedings and the appeal. In

 granting the remand in 1991, a division of this court ordered that

 the postconviction proceedings “be done with all due speed.”

¶5    Over the next six years, the postconviction court appointed a

 succession of private attorneys to represent Hardin; they all

 withdrew before resolution of the proceedings. The postconviction

 court repeatedly set the matter, only to later vacate the settings.

 Hardin repeatedly expressed frustration with his legal



 2The trial court’s minute orders and mittimus seemingly conflict
 with each other as to whether the aggravated robbery and felony
 murder convictions regarding Irving merged, and whether Hardin
 was sentenced to life imprisonment on each count of felony murder
 and murder after deliberation, or just the felony murder
 convictions. Two divisions of this court, and the postconviction
 court, later interpreted Hardin’s sentences as explained here.
                                    2
 representation and with his appointed attorneys’ lack of action in

 the postconviction court and in this court.

¶6    A division of this court eventually vacated the limited remand

 and decided Hardin’s direct appeal in 1997, about ten years after

 Hardin committed the underlying crimes. See People v. Hardin,

 (Colo. App. No. 88CA1898, Dec. 18, 1997) (not published pursuant

 to C.A.R. 35(f)) (Hardin I). That division affirmed Hardin’s

 convictions, but it remanded with instructions for the trial court to

 vacate the felony murder conviction concerning Irving’s death, enter

 a judgment of conviction for the count of murder after deliberation

 concerning Irving’s death, and resentence Hardin accordingly.3 Id.

 That division also concluded that Hardin’s ineffective assistance of

 counsel claims should be considered in a postconviction

 proceeding. Id.

¶7    Hardin later filed a pro se Crim. P. 35(c) motion raising

 numerous claims, including ineffective assistance of counsel. The

 postconviction court denied the motion in 1999 without holding a

 hearing, appointing counsel, or resentencing Hardin in accordance


 3The resulting sentence for this conviction, finally imposed in 2014,
 was life imprisonment.
                                    3
 with the remand instructions. Hardin appealed the 1999 order

 denying his postconviction motion. In December 2000, a division of

 this court reversed the order and remanded with instructions to

 hold further proceedings on Hardin’s postconviction claims and to

 comply with the 1997 remand instructions regarding resentencing.

 See People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21, 2000) (not

 published pursuant to C.A.R. 35(f)).

¶8    After the remand, the postconviction court appointed another

 attorney to represent Hardin in April 2001. Over the next four

 years, and after the postconviction court allowed several extensions

 of time to supplement Hardin’s pro se Crim. P. 35(c) motion,

 Hardin’s appointed counsel failed to file any supplement.

 Meanwhile, Hardin made numerous pro se filings expressing his

 frustration with his attorney’s inaction and his desire to obtain

 adequate counsel. In response to the inactivity in these

 proceedings, the postconviction court appointed Hardin’s current

 attorney in February 2005.

¶9    Almost eight years later, in December 2012 — about twenty-

 four years after trial and about twelve years after Hardin filed his

 original Crim. P. 35(c) motion — the third and final trial judge to

                                    4
  preside over this case since the 2000 remand issued an order

  mandating that Hardin’s postconviction proceedings “get moving.”4

  Thereafter, Hardin’s attorney filed two supplemental briefs in

  support of his motion for postconviction relief. The postconviction

  court held an evidentiary hearing over three days on the matter.

  After the hearing, the postconviction court denied Hardin’s motion.

  In denying the motion, the postconviction court stated that the

  twelve-year delay in the postconviction proceedings “did not amount

  to a remedial due process violation . . . and, perhaps most

  importantly, did not legally prejudice [Hardin].”

¶ 10   Hardin now appeals.

                            II.   Due Process

¶ 11   Hardin argues that the postconviction court erred in

  concluding that the proper remedy for the twelve-year delay in

  resolving his postconviction claims, which violated his right to due


  4 The judge, noting the “excruciating and often inexplicable delays”
  in this case, stated that “nothing substantively has been done” in
  this case since the December 2000 remand; “no hearing has ever
  been held” on Hardin’s Crim. P. 35(c) motion; appointed counsel
  had failed to supplement the motion during her nearly seven-year
  tenure as Hardin’s attorney; and Hardin’s series of attorneys had
  filed “endless motions for extensions of time,” several of which had
  yet to be ruled upon.
                                    5
  process, was to finally address his Crim. P. 35(c) motion, rather

  than grant him a new trial. In support of this position, Hardin

  asserts that the delay impaired his ability to present his claims for

  postconviction relief, as shown by the witnesses’ faded memories

  and the unavailability of certain records. Hardin further argues

  that we should analyze his due process claim concerning the

  twelve-year delay in his postconviction proceedings in the same

  manner as appellate delays — that is, under the Colorado Supreme

  Court’s iteration of the factors set forth in Barker v. Wingo, 407 U.S.

  514 (1972). See Hoang v. People, 2014 CO 27, ¶¶ 48-54. We

  conclude that the postconviction court properly declined to grant

  Hardin a new trial on this issue, but we respectfully disagree with

  the postconviction court’s legal analysis.

       A.   Preservation, Standard of Review, and Applicable Law

¶ 12   The parties agree that this issue has been properly preserved.

¶ 13   This issue presents a mixed question of fact and law. See

  People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010). We defer to

  a postconviction court’s findings of fact if they are supported by

  evidence in the record, and we review its conclusions of law de

  novo. See Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007).

                                     6
¶ 14   As a matter of first impression, we determine that due process

  claims arising from delays in resolving motions for postconviction

  relief should be analyzed under the balancing test set forth in

  Barker, 407 U.S. at 530. Although this test was originally applied

  to issues concerning a defendant’s Sixth Amendment right to a

  speedy trial, courts have employed it in the context of due process

  claims arising from delays in various legal proceedings. See, e.g.,

  People v. Smith, 183 P.3d 726, 730 (Colo. App. 2008) (delay

  regarding a probation revocation hearing); People v. Rios, 43 P.3d

  726, 732 (Colo. App. 2001) (delay in appellate proceedings);

  Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. Ct. 2010)

  (delay in resolving a motion for postconviction relief). We see no

  reasoned basis why the Barker factors should not inform our

  analysis in the context of postconviction proceedings.

¶ 15   Under this test, a court should consider the following factors:

  (1) the length of the delay; (2) the reason for the delay; (3) the

  defendant’s assertion of his or her right; and (4) whether the

  defendant suffered prejudice as a result of the delay. Rios, 43 P.3d

  at 732; accord Barker, 407 U.S. at 530. The length of the delay

  must be at least presumptively prejudicial to the defendant before

                                      7
  further inquiry into the other factors is warranted. See Barker, 407

  U.S. at 530. No single factor is determinative. Id. at 533. “Rather,

  they are related factors and must be considered together with such

  other circumstances as may be relevant.” Id.

                              B.    Analysis

¶ 16   Employing the Barker balancing test here, we defer to the

  postconviction court’s factual findings and agree that the delay did

  not violate Hardin’s right to due process in a manner entitling him

  to a new trial. See Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e

  can affirm on any grounds supported by the record.”).

                        1.    Length of the Delay

¶ 17   Under these circumstances, we are satisfied that the twelve-

  year delay was presumptively prejudicial and warrants further

  inquiry into the other Barker factors. See Moody v. Corsentino, 843

  P.2d 1355, 1364 (Colo. 1993) (finding an eight-year delay sufficient

  to proceed to examining the other Barker factors); see also Smith,

  183 P.3d at 730 (finding a six-year delay sufficient).

                        2.   Reason for the Delay

¶ 18   The second factor “examines whether the government or the

  criminal defendant is ‘more to blame’ for the delay.” Hoang, ¶ 50

                                     8
(citation omitted). The postconviction court found that the

“negligence” of counsel and of the postconviction court were to

blame for the twelve-year delay. While any negligence of the

postconviction court and the prosecution’s counsel is likely

attributable to the government, see id. (attributing delays caused by

court reporters to the government), any negligence of Hardin’s

counsel is, unfortunately, attributable to him, even though his

attorneys were appointed by the court.5 See Vermont v. Brillon, 556

U.S. 81, 91 (2009) (“[D]elay caused by the defendant’s counsel is

also charged against the defendant . . . whether counsel is privately

retained or publicly assigned . . . .”); Glaser, 250 P.3d at 635.

Consequently, we conclude that this factor weighs in favor of

neither Hardin nor the government, as both inexcusably

contributed to the delay. See Barker, 407 U.S. at 531 (noting that

delays caused by negligence do not weigh as strongly against the

government as those caused intentionally).




5Any issues Hardin may have with the assistance of his appointed
counsel are not currently before us; they would be part of a
separate proceeding.
                                   9
                         3.    Assertion of Right

¶ 19   On the third factor, the record evidences Hardin’s numerous

  letters and pro se motions expressing his desire to have his claims

  for postconviction relief decided and his frustration with the

  inaction of the court and of his attorneys. Thus, this factor weighs

  in Hardin’s favor. See Smith, 183 P.3d at 730.

                              4.   Prejudice

¶ 20   Regarding the final factor, we examine whether Hardin

  suffered prejudice as a result of the delay, particularly whether the

  delay impaired Hardin’s ability to prepare his case for

  postconviction relief. See Barker, 407 U.S. at 532.

¶ 21   The record supports the postconviction court’s findings

  regarding the evidence, in the form of tangible records and

  witnesses, available to Hardin at the time of the evidentiary hearing.

  The postconviction court found that only a “small part” of the

  record was unavailable as a result of the delay, and it found the

  witness testimony available to Hardin was sufficient for him to “fully

  and completely” present his claims. Importantly, the court

  reasoned that if anyone was prejudiced by Hardin’s trial attorney’s

  “often dim memory” and the unavailability of certain evidence, it

                                    10
  was the prosecution. Hardin testified at the hearing and often

  contradicted trial counsel’s testimony.

¶ 22   While the record shows that the witnesses’ memories had

  dimmed to some degree by the time the evidentiary hearing was

  held, it also shows that the witnesses were able to recall key details,

  such as trial counsel’s strategic reason for declining to object to the

  duplicity or trifurcation6 of the aggravated robbery charge. On this

  record, we cannot say that Hardin was significantly prejudiced in

  presenting his postconviction claims as a result of the delay.

  Deferring to the postconviction court’s factual findings, we agree

  that Hardin has not demonstrated prejudice resulting from the

  delay sufficient to establish a due process violation.

¶ 23   Accordingly, because Hardin did not make an adequate

  showing of prejudice, we agree with the postconviction court that

  the proper remedy for this delay was to address the motion



  6 Initially, the prosecution charged Hardin with a single count of
  aggravated robbery for robbing three different men; this count gave
  rise to a potential duplicity objection. The jury, however, convicted
  Hardin of two separate counts of aggravated robbery and acquitted
  him of a third aggravated robbery count regarding Fisher; the three
  separate counts considered by the jury gave rise to a potential
  trifurcation objection.
                                    11
  posthaste, rather than to grant a new trial. See People v. Valdez,

  178 P.3d 1269, 1279 (Colo. App. 2007).

¶ 24   Although we conclude that Hardin received the proper remedy

  for the twelve-year delay, we emphasize that the conduct that

  precipitated this lengthy delay is unacceptable in a legal system

  that is designed to provide criminal defendants with reasonably

  prompt resolutions of their postconviction motions. Under different

  circumstances, such a delay in postconviction proceedings could

  give rise to a cognizable due process violation. Cf. Burkett, 5 A.3d

  at 1275-80 (analyzing a potential due process violation under the

  Barker test in the context of postconviction proceedings).

                  III.   Motion for Postconviction Relief

¶ 25   Hardin argues that the postconviction court erroneously

  denied his motion for postconviction relief. We disagree.

        A.    Sufficient Factual Findings and Legal Conclusions

¶ 26   Hardin asserts that the postconviction court abused its

  discretion by not making findings of fact or conclusions of law as to

  whether his trial counsel was ineffective in failing to object to the

  duplicity or the trifurcation of the aggravated robbery charge. Had

  trial counsel properly objected and had the charge not been

                                     12
  trifurcated, Hardin argues, the jury likely would have been unable

  to reach a unanimous verdict or would have acquitted him of

  aggravated robbery and felony murder. At the very least, Hardin

  asserts, this would have preserved the issue and allowed his

  success on direct appeal. Consequently, Hardin asks us to remand

  for further proceedings on this issue. We are unpersuaded.

       1.   Preservation, Standard of Review, and Applicable Law

¶ 27   The parties agree that this issue has been properly preserved.

¶ 28   In a Crim. P. 35(c) proceeding, a conviction is presumed valid

  and the defendant bears the burden of proving his or her

  entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We

  defer to a postconviction court’s findings of fact if they are

  supported by the record, and we review its conclusions of law de

  novo. See id. at 1063.

¶ 29   To succeed on an ineffective assistance claim, a defendant

  must show that counsel’s performance was constitutionally

  deficient and that this deficient performance prejudiced the defense.

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

  173 P.3d at 1062. To satisfy the performance prong, the defendant

  must show that counsel’s representation fell below an objective

                                     13
  standard of reasonableness. Dunlap, 173 P.3d at 1062. To satisfy

  the prejudice prong, the defendant must show that there is a

  reasonable probability that, but for the deficient performance, the

  result of the proceeding would have been different. Id. at 1063;

  People v. Washington, 2014 COA 41, ¶¶ 21-29. If a court

  determines that a defendant has failed to prove either prong of the

  Strickland test, it may deny the claim on that ground without

  addressing the other prong. Strickland, 466 U.S. at 697; see also

  People v. Naranjo, 840 P.2d 319, 324 (Colo. 1992).

¶ 30   When resolving a motion pursuant to Crim. P. 35(c), a court

  must make findings of fact and conclusions of law sufficient to

  explain the basis of its ruling. People v. Rodriguez, 209 P.3d 1151,

  1157 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010). To

  constitute an abuse of discretion, the postconviction court’s

  decision must be shown to be manifestly arbitrary, unreasonable,

  or unfair. See People v. White, 55 P.3d 220, 223 (Colo. App. 2002).

  A court’s failure to exercise discretion can be an abuse of discretion.

  People v. Darlington, 105 P.3d 230, 232 (Colo. 2005).




                                    14
                              2.    Analysis

¶ 31   Because the postconviction court made factual findings

  regarding the lack of prejudice Hardin suffered as a result of any

  alleged ineffective assistance of trial counsel, we defer to those

  findings and conclude that Hardin has not satisfied the prejudice

  prong of the Strickland test. As a result, we see no need to remand

  for further proceedings on this issue, and we affirm.

¶ 32   In its order denying Hardin’s motion, the postconviction court

  made extensive findings, supported by the record, as to the strength

  of the prosecution’s case and the challenges Hardin had to

  overcome. The postconviction court placed the numerous

  ineffective assistance allegations Hardin made in seeking

  postconviction relief into three groups, and it addressed some

  allegations generally and the rest specifically. Finally, the court

  concluded that “none of the claimed instances of . . . ineffectiveness

  would, separately or together, likely have had any impact on the

  outcome of this case.”

¶ 33   Moreover, a division of this court found that Hardin had “failed

  to demonstrate any prejudice resulting from the manner in which

  the aggravated robberies were charged,” in part because of the trial

                                     15
  court’s uncontested power to allow constructive amendments or

  variances of a criminal information at any time before the verdict.

  See Hardin I, slip op. at 6. We find no support in the record for

  Hardin’s speculative assertions that the trial court (1) would have

  likely refused to allow the amendment or variance upon objection or

  (2) abused its discretion in allowing this amendment or variance

  regardless of whether trial counsel made the desired objection.

¶ 34   We conclude that, although the postconviction court only

  addressed some of Hardin’s arguments specifically, it addressed all

  of his arguments at least generally. Consequently, we conclude

  that, whether implicitly or expressly, the postconviction court

  denied all of Hardin’s arguments. Cf. Bd. of Cty. Comm’rs

  v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (“When a trial court

  does not rule on a motion, it may be considered implicitly denied or

  such failure to rule may be considered harmless error.”) (citation

  omitted).

¶ 35   We therefore determine that the postconviction court’s findings

  of fact and conclusions of law sufficiently provided the basis of its

  ruling — namely, that Hardin had failed to satisfy the prejudice

  prong of Strickland. See People v. Breaman, 939 P.2d 1348, 1352

                                    16
  (Colo. 1997); see also People v. Chipman, 2015 COA 142, ¶¶ 88-85

  (concluding that the postconviction court’s order was sufficient to

  set forth the basis of its denial of a Crim. P. 35(c) motion where the

  order was merely a motion from the prosecution asking the court to

  deny the defendant’s motion with the word “granted,” the judge’s

  initials, and the date written on it). The postconviction court’s lack

  of specific factual findings on the arguments at issue, accordingly,

  did not constitute an abuse of discretion.

¶ 36   Finally, assuming without deciding that trial counsel’s failures

  to object constituted ineffective assistance, we defer to the

  postconviction court’s factual findings, and we determine that

  Hardin has not satisfied the prejudice prong of the Strickland test.

  See Strickland, 466 U.S. at 697.

                    B.    Waiver of the Right to Testify

¶ 37   Lastly, Hardin contends that the postconviction court erred in

  finding that he validly waived his right to testify at trial. Hardin

  notes that he initially expressed his desire to testify after the trial

  court’s first advisement regarding his right to testify. Later that

  same day, however, Hardin decided not to testify. Hardin claims

  that trial counsel improperly interfered with his right to testify.

                                     17
  Also, according to Hardin, the trial court’s second advisement,

  which incorporated the initial advisement by reference and was

  made after he changed his mind about testifying, was insufficient.

  Therefore, he argues, his waiver was not voluntary, knowing, or

  intelligent.

       1.    Preservation, Standard of Review, and Applicable Law

¶ 38   The parties agree that this issue has been properly preserved.

¶ 39   In a Crim. P. 35(c) proceeding, a conviction is presumed valid

  and the defendant bears the burden of proving his or her

  entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We

  defer to a postconviction court’s findings of fact if they are

  supported by the record, and we review its conclusions of law de

  novo. See id. at 1063. The postconviction court determines the

  weight and credibility to give to the testimony of witnesses at a

  Crim. P. 35(c) hearing. See id. at 1061-62.

¶ 40   To be valid, a defendant’s waiver of the right to testify must be

  knowing, voluntary, and intelligent. People v. Curtis, 681 P.2d 504,

  514 (Colo. 1984), modified, People v. Blehm, 983 P.2d 779 (Colo.

  1999). To this end, a trial court should advise the defendant

  outside the presence of the jury that (1) the defendant has the right

                                     18
  to testify; (2) if he or she wants to testify, no one can prevent him or

  her from doing so; (3) if the defendant testifies, the prosecution will

  be allowed to cross-examine him or her; (4) if the defendant has

  been convicted of a felony, the prosecutor will be entitled to ask

  about it; and (5) if the felony conviction is disclosed to the jury, the

  jury can be instructed to consider it only as it bears on the

  defendant’s credibility. Id. at 514-15. Regardless of whether the

  trial court’s Curtis advisement contained the requisite five elements,

  the essential task before the postconviction court is to determine

  whether the defendant’s waiver of the fundamental constitutional

  right to testify was knowing, voluntary, and intelligent. Moore v.

  People, 2014 CO 8, ¶ 22.

                               2.    Analysis

¶ 41   We conclude that the postconviction court rightly determined

  that Hardin validly waived his right to testify.

¶ 42   The record supports the postconviction court’s findings that

  the trial court initially gave Hardin a proper Curtis advisement that

  included the five requisite elements and that, in turn, Hardin gave

  coherent responses. During the second Curtis advisement, given

  after Hardin decided not to testify, the trial court incorporated the

                                     19
  initial advisement that it had given mere hours earlier and

  reiterated that Hardin had the right to testify in spite of his

  attorney’s advice to the contrary. Hardin’s responses show that he

  remained firm in his decision to forgo testifying. We defer to the

  postconviction court’s factual findings and agree that Hardin’s

  waiver was voluntary, knowing, and intelligent. See Dunlap, 173

  P.3d at 1063.

¶ 43   Additionally, the record supports the finding that, although

  trial counsel strongly advised Hardin against testifying, trial

  counsel did not “intimidate” Hardin or otherwise improperly

  interfere with his ability to choose whether to testify. The

  postconviction court found trial counsel’s related testimony at the

  evidentiary hearing more credible than Hardin’s. We may not

  disregard this credibility determination. See id. at 1061-62.

¶ 44   Therefore, we agree that Hardin’s waiver was valid, and we

  affirm.

                             IV.   Conclusion

¶ 45   The order is affirmed.

       JUDGE BERNARD and JUDGE RICHMAN concur.



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