Peo v. McCoy

22CA1905 Peo v McCoy 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1905

Boulder County District Court No. 11CR126

Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Keith McCoy,

Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor

General, Denver, Colorado, for Plaintiff-Appellee

David Keith McCoy, Pro Se

1

¶ 1 Defendant, David Keith McCoy, appeals the district court’s

summary denial of his second Crim. P. 35(c) postconviction motion.

We reverse the district court’s order and remand for further

proceedings.

I. Relevant Facts and Procedural History

¶ 2 McCoy’s appeal comes before us following his 2012 conviction

and his first postconviction proceeding that began in 2017. This

second postconviction proceeding began in 2021.

A. Plea, Sentencing, and Direct Appeal

¶ 3 In 2012, McCoy pleaded guilty to conspiracy under the

Colorado Organized Crime Control Act and possession with intent

to manufacture or distribute between 25 and 450 grams of a

schedule II controlled substance. In exchange for his guilty plea,

the prosecution agreed to dismiss the remaining twenty-seven

counts, including a special offender count and five habitual

criminal counts. The parties stipulated that the court would

sentence McCoy to thirty-five years in prison, and the court

sentenced him in accordance with that agreement.

¶ 4 McCoy directly appealed his sentence, arguing that the district

court did not make sufficient factual findings to support it and that

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the court should not have relied on his prior convictions to impose

an aggravated range sentence without an accompanying jury

finding. A division of this court affirmed McCoy’s sentence. People

v. McCoy, (Colo. App. No. 12CA2651, July 17, 2014) (not published

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

B. First Postconviction Proceeding

¶ 5 In 2017,

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McCoy’s retained counsel, Thomas E. Henry, filed a

Crim. P. 35(c) motion that argued plea counsel had been

constitutionally ineffective. Specifically, Henry’s motion contended

that plea counsel had

• enlisted a codefendant and McCoy’s sister to convince

McCoy to take the plea offer;

• misled McCoy about the extent of her investigation,

including telling him that (1) the dispatch and traffic stop

recordings had been lost when she had never asked the

1

McCoy originally filed a pro se Crim. P. 35(c) motion in 2015 but

asked the district court to either stay the proceeding or withdraw

the 2015 motion without prejudice so that he could hire private

counsel. The district court permitted McCoy to withdraw his 2015

motion and granted him leave to refile a Crim. P. 35(c) motion so

long as it was timely.

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prosecution for them and (2) the codefendant and

McCoy’s sister had no evidence that could help his case;

• misled McCoy about the legal arguments available to

him, including telling him that (1) there was no need to

file pretrial motions or raise evidentiary issues and

(2) there was no defense strategy that could benefit him

based on her review of the discovery;

• misadvised McCoy that (1) it was not important that he

did not have counsel at the preliminary hearing and (2)

the prosecution did not have to disclose the identity of

the confidential informants;

• failed to discuss with McCoy a possible conflict of interest

based on her prior representation of his ex-girlfriend;

• failed to advise McCoy that the sentence in the plea

agreement was in the aggravated range and drug

treatment would not be available in prison until 2020

due to the lengthy sentence;

• told McCoy and others that McCoy had nine prior

felonies for the sale and distribution of extensive

quantities of drugs — when he only had six prior felonies

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involving smaller quantities of drugs — and that, as a

result, he would be unable to raise the issue of

proportionality of his sentence;

• failed to advise McCoy that waiving a presentence report

would affect his classification in prison;

• misadvised McCoy that the fact that other defendants in

the same jurisdiction had received lower sentences on

identical charges would have no impact on his plea

bargain or sentencing; and

• told McCoy that proposed amendments to the felony drug

statutes and the new habitual criminal statute would not

apply to him.

¶ 6 However, despite citing the appropriate case law, Henry’s

motion alleged no facts to establish that McCoy was prejudiced by

plea counsel’s alleged deficient performance, as required under

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

assistance of counsel claim requires showing (1) that counsel’s

performance was deficient and (2) that counsel’s deficient

performance prejudiced the defendant).

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¶ 7 The prosecution pointed out this omission in its response to

Henry’s motion, arguing that the district court should deny the

motion without a hearing because McCoy had failed to allege

prejudice — namely, that the outcome of the plea process would

have been different had McCoy received competent assistance from

plea counsel. After the prosecution highlighted this flaw, Henry

filed a reply stating that what McCoy would have done differently

had plea counsel been effective was “a difficult question to answer

today.” The reply alleged only generally that McCoy “would have

selected a different course of action had counsel made a concerted

effort” to effectively advise and represent him.

¶ 8 The district court denied McCoy’s 2017 petition without a

hearing because it failed to allege prejudice. In its denial order, the

court noted that Henry’s motion contained “not one sentence that

attempt[ed] to prove that the outcome of the case was prejudiced.”

“In each of the claims listed in the 35(c) motion,” the court

explained, McCoy “fail[ed] to state that the outcome of the case was

altered by [plea] counsel’s allegedly deficient assistance.” The court

also emphasized that “[w]riting that a question is difficult and then

not answering it certainly d[id] not satisfy” McCoy’s burden, but

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instead demonstrated “very little effort to show that the outcome of

the proceeding would have been different if [plea] counsel had been

effective.”

¶ 9 McCoy appealed the postconviction court’s order denying his

claims without a hearing. A division of this court affirmed that

order, concluding that “McCoy failed to make any factual

allegations to establish that he was prejudiced by plea counsel’s

alleged deficient performance.” People v. McCoy, slip op. at ¶ 19

(Colo. App. No. 17CA0590, Feb. 13, 2020) (not published pursuant

to C.A.R. 35(e)).

C. Second Postconviction Proceeding

¶ 10 In 2021, McCoy filed a pro se Crim. P. 35(c) motion alleging

that he had received ineffective assistance from Henry in connection

with the 2017 petition. McCoy alleged that Henry had

• been unauthorized to practice law in Colorado when he

represented McCoy because his license was inactive;

• failed to allege facts, which were readily available, that

would have established that plea counsel’s performance

prejudiced McCoy and that would have prevented the

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denial of McCoy’s first postconviction petition without a

hearing; and

• failed to raise four additional meritorious claims: (1) that

plea counsel failed to independently test the substances

that McCoy was prosecuted for possessing; (2) that plea

counsel misadvised McCoy about his sentencing

exposure; (3) that plea counsel failed to investigate the

validity of McCoy’s arrest after promising to do so; and

(4) that McCoy’s speedy trial rights were violated.

¶ 11 One year after McCoy filed his second postconviction petition,

the district court denied it without a hearing. In its order, the court

found no merit to McCoy’s allegation that Henry was unauthorized

to practice law in Colorado when he represented McCoy.

Apparently consulting Office of Attorney Regulation Counsel (OARC)

records for Henry, the court referenced disciplinary proceedings

from 2007, 2009, and 2015 but determined that those proceedings

either predated Henry’s representation of McCoy or “did not serve to

suspend . . . Henry’s bar license.”

¶ 12 With respect to McCoy’s contention that Henry was ineffective

because he failed to allege facts establishing that plea counsel’s

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deficient performance prejudiced McCoy, the district court reframed

McCoy’s argument. According to the district court, McCoy instead

asserted that the denial of his first postconviction motion was “per

se proof” of Henry’s deficient performance. The court rejected this

argument, reasoning that it proved too much, because “such logic

would grant every non-prevailing party in a case the opportunity to

present an ineffective assistance of counsel claim.” Moreover, the

court concluded that Henry’s motion “develop[ed] the legal

requirement that prejudice to a defendant be demonstrated . . . and

the motion assert[ed] . . . a disadvantage to . . . McCoy in the plea

bargaining process due to [plea counsel’s] performance.”

¶ 13 Meanwhile, the district court cursorily addressed only one of

the four claims that McCoy asserted had merit and should have

been raised by Henry: that plea counsel misadvised McCoy about

his sentencing exposure. The court found that McCoy’s argument

that he would have proceeded to trial had he known he faced a

potential sentence of forty-eight years rather than ninety-six years

did not account for the possibility of consecutive terms or his

exposure to longer sentencing based on his prior convictions. The

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court also stated that Henry raised McCoy’s arguments in the first

postconviction petition.

¶ 14 The district court ultimately concluded that “McCoy ha[d] not

demonstrated that . . . Henry’s performance in presenting the [first

postconviction petition] was deficient” or that McCoy would have

obtained postconviction relief had Henry been effective. McCoy

appeals.

II. Timeliness

¶ 15 As an initial matter, all postconviction challenges to a

conviction for a non-class 1 felony such as McCoy’s must be raised

within three years of the conviction becoming final. § 16-5-402(1),

C.R.S. 2023. If a defendant directly appeals a conviction, and it is

affirmed, the conviction is final for purposes of section 16-5-402

when the mandate issues in that appeal. People v. Hampton, 857

P.2d 441, 444-45 (Colo. App. 1992), aff’d, 876 P.2d 1236 (Colo.

1994).

¶ 16 But because ineffective assistance of postconviction counsel

claims cannot be asserted until the conclusion of the prior

postconviction proceeding and section 16-5-402(1) does not, by its

terms, allow additional time beyond its three-year period for the

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completion of such a postconviction proceeding, such claims will

often be filed outside of the three-year window prescribed by section

16-5-402. See People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002).

However, an untimely postconviction claim may be considered if the

court finds that the “failure to seek relief within the applicable time

period was the result of circumstances amounting to justifiable

excuse or excusable neglect.” § 16-5-402(2)(d). Thus, a court must

assess the timeliness of such an ineffective assistance of

postconviction counsel claim under the rubric of justifiable excuse

or excusable neglect. Clouse, 74 P.3d at 341.

¶ 17 We review de novo whether the postconviction petition alleged

facts that, if true, would constitute justifiable excuse or excusable

neglect so as to entitle the defendant to a hearing on that question.

People v. Chavez-Torres, 2019 CO 59, ¶ 11.

¶ 18 McCoy’s direct appeal of his conviction was affirmed and

became final when the mandate issued on February 9, 2015. Thus,

all postconviction challenges to his conviction had to be raised by

February 9, 2018, unless McCoy could show justifiable excuse or

excusable neglect. § 16-5-402(2)(d). McCoy filed his second

postconviction petition on September 10, 2021, necessitating a

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showing of justifiable excuse or excusable neglect. However, rather

than assessing the timeliness of McCoy’s second postconviction

petition under the rubric of justifiable excuse or excusable neglect,

Clouse, 74 P.3d at 341, the district court incorrectly stated that the

petition was timely because McCoy had filed it less than three years

after the conclusion of his first postconviction proceeding.

¶ 19 Notwithstanding the district court’s erroneous timeliness

analysis, McCoy’s second postconviction petition sufficiently

demonstrated circumstances amounting to justifiable excuse or

excusable neglect. McCoy detailed how, at the time that the

mandate in his first postconviction proceeding was issued in July

2020, measures responding to the COVID-19 pandemic prevented

him from filing his second postconviction petition sooner.

Specifically, McCoy cited limited judicial and prison operations and

his confinement to his cell for twenty-three hours per day without

access to resources needed to prepare his petition. These

allegations, if true, would constitute justifiable excuse or excusable

neglect, see Chavez-Torres, ¶ 11, and the People do not contest this

on appeal.

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¶ 20 In sum, McCoy’s second postconviction petition fell outside the

three-year window prescribed by section 16-5-402. The petition,

however, pleaded justifiable excuse or excusable neglect sufficient

to permit its consideration.

III. Henry’s Licensure Status

¶ 21 Turning to the substance of the second postconviction

petition, McCoy alleged that Henry was ineffective as postconviction

counsel because he was unauthorized to practice law in Colorado

when he represented McCoy due to his license being inactive. On

appeal, McCoy contends that the district court erred by consulting

OARC records and rejecting his claim based on information found

in those records. We agree that this issue requires reversing the

district court’s order and therefore do not reach McCoy’s remaining

contentions.

A. Standard of Review and Applicable Law

¶ 22 We review de novo the denial without a hearing of a Crim. P.

35(c) motion. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 8.

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

an evidentiary hearing when “the motion, files, and record in the

case clearly establish that the allegations presented in the

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defendant’s motion are without merit and do not warrant

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

2003); see Crim. P. 35(c)(3)(IV).

B. Analysis

¶ 24 Rejecting McCoy’s claim that Henry was ineffective because he

was unauthorized to practice law in Colorado, the district court

appears to have relied upon OARC records to conclude that

“Henry’s license was active during the time he represented . . .

McCoy.” Specifically, the court stated that those records revealed

disciplinary cases from 2007 and 2009 that predated Henry’s

representation of McCoy and a case from 2015 in which Henry

received a sixty-day suspension and a one-year period of probation

that, according to the district court, “did not serve to suspend . . .

Henry’s bar license.”

¶ 25 In his petition, however, McCoy stated that the OARC records

for Henry “show that prior to 2017, which is when Henry actually

filed McCoy’s postconviction motion, his license status was listed as

inactive, thus demonstrating that he was not authorized to act as

McCoy’s attorney.” And on appeal, McCoy asserts that the district

court misunderstood his argument by focusing on Henry’s

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disciplinary cases. According to McCoy, he is “not contending that

Henry’s license was rendered inactive due to previous misconduct;

he’s contending that it’s inactive because Henry suffers from some

disability.”

2

Thus, McCoy argues, “the district court [wa]s . . .

mistaken that Henry’s disciplinary history refuted McCoy’s claim.”

¶ 26 We cannot be certain what records the district court consulted

in reaching its determination about Henry’s license status because

neither its order nor the record on appeal contains this material. It

appears most likely to us, however, that the district court consulted

Henry’s publicly available online OARC records, Colo. Sup. Ct.

OARC, Attorney/LLP Search & Disciplinary History,

https://perma.cc/67VT-MCKX, which, as of the date of this

opinion, display the following:

2

The People assert that we cannot consider this argument because

McCoy raised it for the first time on appeal. According to the

People, McCoy did not previously claim “that postconviction

counsel’s license was inactive due to a disability, as opposed to a

suspension or disciplinary proceedings.” Construing McCoy’s pro

se motion broadly, see People v. Bergerud, 223 P.3d 686, 696-97

(Colo. 2010), we note that it alleged that Henry’s “license status was

listed as inactive,” an allegation consistent with his claim on appeal

that Henry’s license was inactive due to a disability. That McCoy

simply provided on appeal the reason behind Henry’s inactive

license status does not render his argument inconsistent with the

one he outlined in his motion.

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Henry’s Online OARC Records

¶ 27 Consistent with McCoy’s description, the OARC records list

Henry’s license status as “Disability Inactive.” But those records

provide no additional information about this license status, such as

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its underlying cause or, more importantly, its timeframe —

specifically, whether Henry’s license status was “Disability Inactive”

when the district court apparently consulted those records, when

Henry represented McCoy, or both.

¶ 28 Because we do not know which records the district court

consulted, and because OARC’s online records lack necessary

clarity about Henry’s “Disability Inactive” license status, we cannot

take judicial notice of them in order to assess the merits of McCoy’s

claim. See CRE 201(b)(2) (court may take judicial notice of facts not

subject to reasonable dispute that are “capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned”). We therefore cannot say that the

information before us refutes McCoy’s allegation that Henry was

unlicensed at the time that he filed the 2017 petition.

3

3

Because we cannot take judicial notice of the status of Henry’s law

license at the time that he filed the 2017 petition, we need not

consider whether, as McCoy argues, it was inappropriate for the

court to look beyond the files and records of the case to determine

whether McCoy’s factual allegations were untrue. See Crim. P.

35(c)(3)(IV); People v. Smith, 2017 COA 12, ¶ 19; People v. Davis,

2012 COA 14, ¶ 10.

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¶ 29 Of course, as the People point out, it is true that any

uncertainty about the status of Henry’s law license at the time that

he filed the 2017 motion is not dispositive of McCoy’s claim.

Indeed, “a majority of courts have rejected a per se rule that an

attorney has provided ineffective assistance to a criminal defendant

even when an attorney is suspended or disbarred during a criminal

defendant’s trial.” Hodges v. People, 158 P.3d 922, 927-28 (Colo.

2007). And on the record before us (and assuming that Henry was

in fact on “disability inactive” status at the time that he filed the

2017 petition), we cannot draw any conclusions as to Henry’s

competence during his representation of McCoy. But that is exactly

why McCoy’s claim should not have been summarily dismissed.

Because McCoy advanced a claim that he received ineffective

assistance of counsel based on his attorney’s lack of licensure, the

district court should have referred it to the public defender for

further investigation as required by Crim. P. 35(c)(3)(V). See People

v. Kenny, 30 P.3d 734, 743-44 (Colo. App. 2000) (holding that “if an

attorney is less than fully licensed,” a defendant’s claim of

ineffective assistance based on the attorney’s status must be

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resolved “by applying a case-by-case approach”), overruled on other

grounds by West v. People, 2015 CO 5, ¶¶ 45-64.

¶ 30 Accordingly, we must reverse the order denying McCoy’s

petition and remand with directions to serve a copy of McCoy’s

second postconviction petition and this opinion on the office of the

public defender with instructions for the public defender to file a

timely response under Crim. P. 35(c)(3)(V).

IV. Other Contentions

¶ 31 McCoy also contends that the district court erred by finding

that Henry’s performance was not deficient and did not prejudice

McCoy, and by refusing to address McCoy’s four remaining claims.

Because we conclude that a remand is required to allow the public

defender to review McCoy’s petition, we do not reach these

contentions. See Chalchi-Sevilla, ¶ 25 (holding that “if a defendant’s

pro se Crim. P. 35(c) motion presents at least one potentially

meritorious claim, the postconviction court shall provide ‘a

complete copy’ of the motion to appointed counsel”). We express no

opinion concerning the merits of McCoy’s other contentions or the

necessity for an evidentiary hearing. See id. at ¶ 26.

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V. Disposition

¶ 32 We reverse the district court’s order and remand the case for

further proceedings consistent with this opinion.

JUDGE FOX and JUDGE SULLIVAN concur.