Peo v. Cohen

22CA0077 Peo v Cohen 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0077

Boulder County District Court No. 14CR437

Honorable Andrew Hartman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Emily Elizabeth Cohen,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE BROWN

Harris and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Emily Elizabeth Cohen, directly appeals the

judgment of conviction entered after she pleaded guilty to one count

of theft, collaterally attacking her guilty plea on two grounds. First,

Cohen contends that the district court judge who accepted her

guilty plea was biased, so the conviction entered on her plea must

be reversed. We conclude that the record fails to demonstrate that

the judge was actually biased, so reversal is not required. See

People In Interest of A.P., 2022 CO 24, ¶ 29 (“Only when a judge was

actually biased will we question the reliability of the proceeding’s

result.”).

¶ 2 Second, Cohen contends that the district court erroneously

and totally deprived her of her right to counsel before trial, so her

uncounseled guilty plea was not knowing or intelligent. We first

conclude that, by pleading guilty, Cohen waived her right to

challenge on appeal the alleged deprivation of counsel. See

Stackhouse v. People, 2015 CO 48, ¶ 8 (“[E]ven fundamental rights

can be waived, regardless of whether the deprivation thereof would

otherwise constitute structural error.”); Neuhaus v. People, 2012 CO

65, ¶ 8 (to preserve appellate review of constitutional challenges to

pretrial proceedings, a defendant must not plead guilty). We then

2

conclude that Cohen’s attack on the validity of her guilty plea

requires factual development and must be brought in a

postconviction motion. See People v. Kirk, 221 P.3d 63, 65 (Colo.

App. 2009) (collateral attack on plea requiring resolution of factual

issues ordinarily must be raised in a Crim. P. 35(c) motion); cf.

Moore v. People, 2014 CO 8, ¶ 16 (a defendant may only challenge

the knowing, voluntary, and intelligent waiver of the right to testify

in a postconviction proceeding).

I. Background

¶ 3 Cohen previously practiced as an immigration attorney. The

People alleged that Cohen requested payment in advance for her

services and that once Cohen received money to work on a case,

she broke off all contact, failed to do the work she had agreed to do,

and refused to provide refunds to her clients. In 2014, the

prosecution charged Cohen with fifty-four counts of theft, ranging

from class 2 misdemeanors to class 4 felonies. In 2015, a jury

convicted Cohen of some of the charges.

¶ 4 Cohen appealed, and a division of this court reversed her

convictions for an evidentiary error and remanded for a new trial.

See People v. Cohen, 2019 COA 38, ¶ 44. On remand, Cohen

3

pleaded guilty to one count of theft in exchange for the dismissal of

the remaining counts, and the district court sentenced her to time

served.

II. Actual Bias

¶ 5 Cohen contends that Judge Andrew Hartman, the district

court judge who presided over the entry of her guilty plea, was

actually biased, so “the guilty plea he accepted in this case is not

valid.” We are not persuaded.

1

A. Generally Applicable Law and Standard of Review

¶ 6 “Basic to our system of justice is the principle that a judge

must be free of all taint of bias and partiality.” People v. Jennings,

2021 COA 112, ¶ 18 (citing People v. Mentzer, 2020 COA 91, ¶ 5). A

judge may not preside over a case if they are unable to be impartial.

1

We understand Cohen’s argument to be that Judge Hartman was

actually biased. But to the extent Cohen argues that Judge

Hartman was statutorily disqualified based on section 16-6-

201(1)(d), C.R.S. 2023; Crim. P. 21(b)(1)(IV); or Code of Judicial

Conduct 2.11(A)(1), she waived her right to raise these challenges

by failing to object in the district court and by pleading guilty. See

People v. Garcia, 2024 CO 41M, ¶ 46 (litigants waive statutory

disqualification “when a party knows of grounds for

disqualification” but fails to file a motion until after an adverse

ruling (quoting People in Interest of A.G., 262 P.3d 646, 652 (Colo.

2011))); Neuhaus v. People, 2012 CO 65, ¶ 8 (a guilty plea generally

precludes appellate review of issues that arose before the plea).

4

A.P., ¶ 25. Whether a judge should recuse from a case “depends

entirely on the impropriety or potential appearance of impropriety

caused by [their] involvement.” Id. at ¶ 26.

¶ 7 But there is a difference between a judge who has the

appearance of impropriety and one who has actual bias. Jennings,

¶ 18. Colorado’s Code of Judicial Conduct requires a judge to

recuse from “any proceeding in which the judge’s impartiality might

reasonably be questioned” — in other words, when their

involvement in a case might create the appearance of impropriety.

A.P., ¶ 27 (quoting People in Interest of A.G., 262 P.3d 646, 650

(Colo. 2011)).

¶ 8 Actual bias, on the other hand, “exists when, in all probability,

a judge will be unable to deal fairly with a party; it focuses on the

judge’s subjective motivations.” Id. at ¶ 28. “A defendant asserting

bias on the part of a trial judge must establish that the judge had a

substantial bent of mind against” them. People v. Drake, 748 P.2d

1237, 1249 (Colo. 1988). Such bias must be established clearly in

the record; mere speculative statements and conclusions are not

enough. Id.

5

¶ 9 Circumstances creating an appearance of impropriety

warranting recusal do not alone demonstrate that a judge was

actually biased. A.P., ¶ 29. And although “both an appearance of

impropriety and actual bias are grounds for recusal from a case,

only when the judge was actually biased will we question the

result.” Id.

¶ 10 Whether a trial judge should have recused is a question of law

that we review de novo. Sanders v. People, 2024 CO 33, ¶ 25. If an

actually biased judge presides over a trial, it is structural error.

People v. Garcia, 2024 CO 41M, ¶ 21. Claims of actual bias may

not be waived and may be reviewed on appeal even if the defendant

fails to properly raise the issue in the trial court. Jennings, ¶ 21.

B. Additional Background

¶ 11 On July 14, 2021, despite having been ordered to appear in

person “on at least three occasions” and as a condition of bond,

Cohen appeared at a pretrial conference by Webex and represented

that she had tested positive for COVID-19. The district court ruled

that by appearing virtually, Cohen had failed to appear and violated

her bond conditions. The court recounted Cohen’s “history of

hiding behind supposed medical ailments to avoid appearing in

6

court.” It determined there was probable cause that Cohen was in

direct contempt of the court and issued a warrant for her arrest.

¶ 12 Two days later, Cohen filed a motion to reconsider and

attached a letter from Caroline Marcotte, an advanced registered

nurse practitioner at the University of Iowa Hospitals and Clinics,

stating that Cohen “was told she is a Covid-positive patient” and

must remain quarantined at home. The court denied the motion.

¶ 13 Two weeks later, Cohen filed a motion to quash the warrant

and attached a letter from Maddie Ferguson, a certified physician

assistant at the University of Iowa Hospitals and Clinics, stating

that Cohen had tested positive for COVID-19 on July 13, was still

infectious, and was ordered to stay home. The court granted the

motion to quash and allowed Cohen to appear virtually for an

August 9 hearing. After that hearing, the court ordered Cohen to

appear in person for a November 2 pretrial hearing. It also ordered

that, if Cohen sought to appear remotely at any future hearings

because of COVID-19, the court would only find good cause to allow

Cohen’s remote appearance if she provided an official COVID-19

test result in advance.

7

¶ 14 The day before the November 2 pretrial hearing, Cohen filed a

motion to dismiss her case on several grounds and attached a letter

from Dr. Jessica Alston of the University of Iowa Hospitals and

Clinics, stating that Cohen had tested positive for COVID-19 on

October 28, was still infectious, and was ordered to stay home.

Cohen told the court she would appear remotely the following day.

¶ 15 At the hearing, the prosecution said it had been skeptical of

the letters Cohen had submitted and had contacted the University

of Iowa Hospitals and Clinics to verify if the letter from Dr. Alston

was valid. The prosecution offered as an exhibit an email between

its investigator and a nurse at the University of Iowa, which

confirmed that Dr. Alston had not written the letter. The court

found probable cause “that the document is forged and not a

legitimate doctor’s note.” On the prosecution’s request, the court

revoked Cohen’s bond and issued another warrant for her arrest,

both because she failed to appear in violation of the court’s orders

and based on its conclusion that probable cause existed that the

documents Cohen submitted were fraudulent.

¶ 16 Cohen was arrested on the warrant and because she

challenged extradition and remained in custody in Iowa, she

8

appeared via Webex in court for a status conference on

November 23. At that status conference, the prosecution informed

the court and Cohen that it had filed “new charges related to the

attempt to influence” and “forgery charges” based on the COVID-19

documents.

¶ 17 On the morning of December 6, the first day of the scheduled

trial in the theft case, Judge Hartman let the parties know that he

had arranged for a different judge to advise Cohen on the attempt to

influence and forgery charges “in an abundance of caution in case

[he] ever had to be a witness” in that case. Judge Hartman asked

whether there was a possibility of reaching a disposition of the theft

case and both parties expressed interest in exploring one. The

parties returned and reported they had reached a plea agreement

on the theft case. Judge Hartman advised Cohen of her rights if

she entered a plea and then took a recess.

¶ 18 While the prosecution was finalizing the plea paperwork,

Judge Langer advised Cohen of her rights on the attempt to

influence case “since, theoretically, Judge Hartman, I guess, could

be a witness.” After the advisement, Judge Langer asked if Judge

9

Hartman was going to take the plea in the theft case, and Cohen

responded affirmatively.

¶ 19 Judge Hartman returned to preside over Cohen’s entry of a

guilty plea to a single felony count of theft. Judge Hartman

sentenced Cohen to ninety days jail with ninety days credit for time

served, as agreed by the parties.

C. Judge Hartman Did Not Have Actual Bias

¶ 20 Cohen contends that Judge Hartman had actual bias

justifying automatic reversal of the conviction entered on her guilty

plea because (1) he was the named victim in the attempt to

influence case, which arose from the proceedings in the theft case;

and (2) he had a “substantial bent of mind” against her as

evidenced in his rulings and case management.

1. Named Victim in Attempt to Influence Case

¶ 21 Although the appellate record in the theft case does not

include the complaint filed in the attempt to influence case, we may

take judicial notice of court records in a related proceeding. See

CRE 201(b)(2); People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).

Indeed, the People charged Cohen with three counts of attempt to

influence a public servant identifying Judge Hartman as the “public

10

servant” and three counts of forgery identifying Judge Hartman as

the person Cohen intended to defraud. Still, for four reasons, we

are not persuaded that Judge Hartman’s relationship to the attempt

to influence case amounts to him having actual bias against Cohen

in the theft case.

¶ 22 First, nothing in the record suggests that Judge Hartman

directed the prosecution to investigate any charges that might arise

from Cohen’s submission of the COVID-19 documents or requested

that the prosecution file charges. Cf. In re Estate of Elliott, 993 P.2d

474, 482 (Colo. 2000) (Substitution was proper where the judge

“appeared personally involved in the controversy and had prejudged

the case, but also because the judge referred the case to the district

attorney for potential criminal prosecution.”).

¶ 23 Second, Judge Hartman did not have a direct, personal,

substantial, or pecuniary interest in the theft case. See Sanders,

¶ 31 (Recusal is not required “whenever a party can assert some

objective probability of bias” but “only in circumstances involving a

direct, personal, substantial, or pecuniary interest.”). True, Judge

Hartman had an interest as a named victim and potential witness

in the attempt to influence case from which he recused, but that

11

interest did not require his disqualification from the theft case. See

People v. Schupper, 2014 COA 80M, ¶¶ 63-64 (disqualification of a

judge who witnessed perjury in his courtroom was not necessary

where the perjury case was transferred to another judicial officer,

and the judge “was not a material witness in the proceeding he was

currently handling”). At most, Judge Hartman’s relationship to the

attempt to influence case could give rise to an appearance of

impropriety in the theft case, a claim which Cohen can and did

waive through entry of her guilty plea.

2

See A.G., 262 P.3d at 650

(“[L]itigants may waive disqualification when the disqualification is

not for reasons of actual bias or prejudice.”).

¶ 24 Third, it is well-settled that “what a judge learns in his judicial

capacity is a proper basis for judicial observations, and that the use

of such information is not the kind of matter that results in

disqualification.” People v. Dobler, 2015 COA 25, ¶ 13 (quoting

Smith v. Dist. Ct., 629 P.2d 1055, 1057 (Colo. 1981)); see also Liteky

v. United States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by

the judge on the basis of facts introduced or events occurring in the

2

To be clear, we do not conclude that these circumstances in fact

gave rise to an appearance of impropriety.

12

course of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display

a deep-seated favoritism or antagonism that would make fair

judgment impossible.”). If we required a judge to disqualify based

on information learned in their capacity as a judge, “an

unscrupulous defendant could manipulate such a ruling to [their]

advantage” and delay proceedings indefinitely. People v. Ramos,

708 P.2d 1347, 1352-53 (Colo. 1985).

¶ 25 Judge Hartman learned of the conduct giving rise to the

attempt to influence case in his judicial capacity because Cohen

submitted allegedly fraudulent documents in the theft proceedings.

And in our view, the record dispels the notion that Judge Hartman

was influenced in any way by Cohen’s conduct. The rulings to

which Cohen points as evidence of a “substantial bent of mind,”

which we address next, do not reflect any strong feelings toward or

against any party. And Cohen points to nothing else in the record

to support her claim.

¶ 26 Fourth, the type of conduct at issue here — submitting

allegedly forged documents to a judge to excuse a nonappearance —

is not so outrageous “that in all probability [it] will prevent [a judge]

13

from dealing fairly with a party.” Jennings, ¶ 20 (quoting A.G., 262

P.3d at 650). As fact finder, a trial court routinely assesses witness

credibility and determines whether and how much weight to give

conflicting evidence. Schupper, ¶ 27.

¶ 27 By comparison, a division of this court rejected a claim that a

judge had actual bias when sentencing a defendant on arson

charges arising from a fire, even though the judge personally

witnessed the fire, was forced to evacuate his home, knew of friends

and staff who similarly had to evacuate their homes, and assisted in

relief efforts afterward. See People v. Barton, 121 P.3d 224, 229-30

(Colo. App. 2004) (concluding that the facts gave rise only to an

appearance of prejudice), overruled on other grounds by Lopez v.

People, 113 P.3d 713 (Colo. 2005). If a judge being forced to

evacuate his home to avoid a fire does not give rise to actual bias in

a proceeding to prosecute a defendant for setting the fire, we cannot

conclude that a judge receiving allegedly false information from a

defendant to excuse a failure to appear constitutes actual bias.

¶ 28 That Judge Hartman witnessed the conduct underlying

Cohen’s attempt to influence and forgery charges and was named a

victim of those crimes in a separate proceeding did not give rise to

14

actual bias in the theft case. Accordingly, we conclude that reversal

is not required. See A.P., ¶ 29.

2. Rulings and Case Management

¶ 29 We are also not persuaded that Judge Hartman’s rulings or

case management reflect a “substantial bent of mind” against

Cohen. To be sure, a judge’s adverse rulings, without more, are

insufficient to establish actual bias. Bocian v. Owners Ins. Co.,

2020 COA 98, ¶ 57 (“Unless accompanied by an attitude of hostility

or ill will toward a party, a ruling by a judge on a legal issue is

insufficient to show bias that requires disqualification.” (citing

Brewster v. Dist. Ct., 811 P.2d 812, 814 (Colo. 1991))); Saucerman v.

Saucerman, 170 Colo. 318, 326, 461 P.2d 18, 22 (1969) (“[R]ulings

of a judge,” even if “erroneous, numerous and continuous, are not

sufficient in themselves to show bias or prejudice.”). Even remarks

that are “critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not” establish bias, unless they

reveal an opinion that derives from an extrajudicial source or reflect

“such a high degree of favoritism or antagonism as to make fair

judgment impossible.” Dobler, ¶ 26 (quoting Liteky, 510 U.S. at

555).

15

¶ 30 To support her claim, Cohen points to the following:

• Judge Hartman ruled that Cohen had failed to appear at the

November 2 hearing even though she appeared by Webex.

But given that Cohen had been ordered repeatedly to

appear in person and then submitted allegedly falsified

documents to justify her remote appearance, it was

reasonable for Judge Hartman to find that Cohen failed to

appear and to issue a warrant for her arrest.

• Judge Hartman “deprived [Cohen] of her constitutional right

to counsel for entry of the guilty plea, despite her repeated

requests for appointment of counsel.” See infra Part III.A.

Even if Judge Hartman erred by denying Cohen counsel, a

conclusion we do not reach, an erroneous ruling alone does

not reflect bias or prejudice. See Schupper, ¶ 58.

• Judge Hartman gave Cohen a “short amount of time” to

discuss a plea agreement with the prosecution. Our review

of the transcript from the providency hearing does not

reveal that Judge Hartman put any time pressure on Cohen

to reach a plea. Cohen did not request, nor was she denied,

additional time.

16

• Judge Hartman brought in a different judge to advise Cohen

on the attempt to influence case but “failed to acknowledge

that same bias as he presided over the theft case to enter

the plea.” As discussed, Judge Hartman’s recusal from the

attempt to influence case did not disqualify him from

presiding over the theft case.

• Judge Hartman “refused to take action” on Cohen’s motion

requesting appointment of an appellate public defender. As

the order taking no action on Cohen’s motion reflects, the

court determined there was “no issue subject to appeal

currently,” which would make sense given that Cohen

pleaded guilty. We note that after Cohen filed a notice of

appeal, another judge granted her request for counsel.

• Judge Hartman recused from the theft case after presiding

over Cohen’s guilty plea. In reality, the Chief Judge ordered

all judicial officers of the Twentieth Judicial District to

recuse from the case. The record does not reveal the reason

for recusal.

¶ 31 This record does not “clearly establish bias” by Judge

Hartman. See Schupper, ¶ 59. Cohen’s claims are bare assertions

17

and speculative statements that do not satisfy her burden of proof.

See A.P., ¶ 30. Accordingly, we conclude that reversal is not

required. See id. at ¶ 29.

III. Deprivation of Counsel

¶ 32 Cohen contends that the district court erroneously and totally

deprived her of her right to counsel, causing her guilty plea to be

unknowing and unintelligent. We conclude that Cohen waived her

right to object to the alleged deprivation of counsel by pleading

guilty. And what remains of her claim — a collateral attack on the

validity of the plea — cannot be addressed on direct appeal because

it requires further factual development.

A. Cohen Waived Her Claim that She Was Denied Counsel

¶ 33 The Sixth Amendment to the United States Constitution

guarantees a defendant the right to counsel. U.S. Const. amend.

VI; see also Colo. Const. art. II, § 16; Faretta v. California, 422 U.S.

806, 832 (1975). The “complete deprivation of counsel” has been

recognized as a structural error requiring automatic reversal.

Hagos v. People, 2012 CO 63, ¶ 10; People v. Crabtree, 2024 CO

40M, ¶ 26.

18

¶ 34 But even structural errors may be waived. Stackhouse, ¶ 8.

Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)).

¶ 35 “[A] guilty plea waives fundamental Sixth Amendment rights,

among others, unless the claim relates directly to the adequacy of

the guilty plea (i.e., whether it was knowing, voluntary, and

intelligent).” Jennings, ¶ 13. This is because “[a] guilty plea is an

admission of all the elements of a criminal charge,” and

“[g]enerally . . . precludes review of issues that arose prior to the

plea.” Neuhaus, ¶ 8. “[A] ‘guilty plea represents a break in the

chain of events which has preceded it in the criminal process,’ after

which a defendant may not raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry

of the guilty plea.” Jennings, ¶ 8 (quoting Neuhaus, ¶ 8); Tollett v.

Henderson, 411 U.S. 258, 266-67 (1973).

¶ 36 By pleading guilty, Cohen waived her right to object to any

errors — including those of constitutional magnitude — that may

have occurred before the plea. See Stackhouse, ¶ 8; Neuhaus, ¶ 8.

Thus, Cohen waived any claim that she was erroneously and totally

19

deprived of counsel before she entered her guilty plea, and we will

not address the merits of that claim. See Rediger, ¶ 40 (“[W]aiver

extinguishes error, and therefore appellate review.”).

B. Cohen’s Claim that her Plea Was Not Knowing or Intelligent

Cannot Be Raised on Direct Appeal

¶ 37 Cohen contends that she did not understand the

consequences of pleading guilty because the district court

erroneously denied her counsel earlier in the proceedings. More

particularly, Cohen contends that she would not have entered into

the plea agreement had she known that it (1) would waive her right

to raise an appellate claim that her speedy trial right was violated or

(2) did not guarantee a global disposition would be reached in both

of her criminal cases.

¶ 38 Because this aspect of Cohen’s claim relates directly to the

adequacy of her guilty plea, she did not waive it by pleading guilty.

See Jennings, ¶ 13. Still, Cohen’s claim is not cognizable on direct

appeal because it requires development of a factual record. See

Kirk, 221 P.3d at 65; cf. Moore, ¶¶ 16-17.

¶ 39 Entry of a guilty plea must be knowing, voluntary, and

intelligent. Medina v. People, 2023 CO 46, ¶ 17. A plea is invalid if

20

a defendant “does not understand the nature of the constitutional

protections” they are waiving or “has such an incomplete

understanding of the charge” that the plea cannot stand “as an

intelligent admission of guilt.” Id. (citation omitted).

¶ 40 Whether a guilty plea is knowing, voluntary, and intelligent is

a mixed question of fact and law. Sanchez-Martinez v. People, 250

P.3d 1248, 1254 (Colo. 2011). While we are well-positioned to

review purely legal issues on direct appeal, a defendant’s claim that

their plea was not knowing, voluntary, or intelligent may require

development of facts not contained in the direct appeal record. Cf.

Moore, ¶ 17 (postconviction review is necessary to develop facts not

contained in the direct appeal record that impact whether waiver of

right to testify was knowing, voluntary, and intelligent). Such is the

case here.

¶ 41 Even if we assumed that the district court erroneously

deprived Cohen of counsel earlier in the proceedings, a conclusion

we do not reach, we cannot discern from the existing record

whether the error influenced Cohen’s decision to plead guilty. The

existing record does not establish whether advice of counsel would

have changed what Cohen believed about a global disposition of the

21

theft and attempt to influence cases

3

or about her right to bring a

speedy trial claim on appeal. A postconviction court could find that

the absence or presence of counsel would have had no effect on

whether Cohen knowingly or intelligently pleaded guilty. For

example, a postconviction court could find that Cohen was fully

aware of the limited scope of her plea and of the impact that

pleading guilty would have on her ability to pursue an appellate

claim that her speedy trial rights had been violated. We cannot

make those factual findings in the first instance. See Kirk, 221 P.3d

at 65 (“We are not authorized to make [a] factual finding in the first

instance . . . and this is not a case in which the record supports but

one inference.”) (citation omitted).

¶ 42 Because we cannot discern the facts necessary to resolve

Cohen’s claim on the record before us, we will not address it for the

first time on direct appeal. See id. (declining to address for the first

time on appeal whether a defendant was coerced into a guilty plea

3

To be sure, we are skeptical of this claim, given that Judge Langer

made clear to Cohen — after he advised her in the attempt to

influence case but before she entered her guilty plea in the theft

case — that “there’s no guarantee that there’s a disposition in both

cases.”

22

where the record needed further factual development); cf. Moore,

¶¶ 16-17 (same with respect to the waiver of the right to testify).

Instead, Cohen must present this claim in a Crim. P. 35(c)

postconviction motion. See Kirk, 221 P.3d at 65.

4

IV. Disposition

¶ 43 We affirm the judgment of conviction.

JUDGE HARRIS and JUDGE LUM concur.

4

As a result of our disposition, we necessarily discharge the show

cause order entered February 14, 2024.