Peo v. Hogue

23CA0101 Peo v Hogue 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0101

Arapahoe County District Court No. 01CR1925

Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bradley K. Hogue,

Defendant-Appellant.

ORDER AFFIRMED

Division VII

Opinion by JUDGE GOMEZ

Tow and Kuhn, JJ., concur

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

Announced August 15, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

John T. Carlson, Alternate Defense Counsel, Denver, Colorado, for Defendant-

Appellant

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¶ 1 Defendant, Bradley K. Hogue, appeals the order denying his

Crim. P. 35(c) petition for postconviction relief. We affirm.

I. Background

¶ 2 In 2002, a jury found Hogue guilty of two counts of sexual

assault on a child committed as part of a pattern of abuse, two

counts of sexual assault on a child by one in a position of trust

committed as part of a pattern of abuse, and indecent exposure.

The trial court imposed an aggregate prison sentence of sixteen

years to life. A division of this court affirmed in part and vacated in

part the judgment of conviction and sentences. See People v.

Hogue, (Colo. App. No. 02CA1678, May 13, 2004) (not published

pursuant to C.A.R. 35(f)). The division remanded the case for the

trial court to vacate the pattern of abuse sentence enhancers on two

convictions and to resentence Hogue on those counts. See id. at

14. On remand, the court imposed an aggregate prison sentence of

twelve years to life.

¶ 3 In 2008, Hogue filed a pro se Crim. P. 35(c) petition, which the

postconviction court summarily denied. A division of this court

affirmed the order in part, reversed it in part, and remanded the

case for the appointment of counsel and an evidentiary hearing on

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some claims. See People v. Hogue, (Colo. App. No. 08CA1525, Apr.

8, 2010) (not published pursuant to C.A.R. 35(f)). The division

instructed the postconviction court not to entertain any other

claims on remand. See id. at 25.

¶ 4 On remand, the postconviction court found Hogue to be

indigent and appointed alternate defense counsel (ADC). After

conducting a hearing, the court denied the remanded claims. A

division of this court affirmed the order but remanded the case for

further proceedings. See People v. Hogue, (Colo. App. No.

12CA0985, Jan. 22, 2015) (not published pursuant to C.A.R. 35(f)).

That division reconsidered the prior division’s admonition that the

postconviction court not consider any other claims and concluded

that the case must be remanded for the court to allow Hogue’s

counsel to add claims of arguable merit. See id. at 3-8.

¶ 5 On remand from that appeal, the postconviction court

appointed the public defender’s office to represent Hogue. After

numerous extensions of time over a period of several years, and

eventually a court order allowing no further extensions, the public

defender filed a supplemental Rule 35(c) petition in April 2021. The

prosecution filed a response in July 2021.

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¶ 6 More than a year later, in August 2022, Hogue moved for

substitute counsel, expressing concern over (1) the public

defender’s qualifications and experience with regard to

postconviction proceedings; (2) the public defender’s failure to

maintain adequate contact with him regarding the status of his

case; and (3) the lack of progress during the years the public

defender had been assigned to represent him. He also deemed the

supplemental Rule 35(c) petition to be “very weak” and to contain

errors. Hogue requested to be appointed “counsel with significant

experience in postconviction or other appellate efforts who [wa]s

able to analyze a case record to identify appealable errors and

present appellate briefs/arguments to the [c]ourt.” He then listed

the specific attorneys with whom he would be satisfied and stated

that he “intend[ed] to ask [substitute] counsel to find a way to

amend the [s]upplemental 35(c) [p]etition . . . to include other

claims that [the public defender] overlooked.” A few weeks later,

Hogue moved to stay the proceedings until his motion for substitute

counsel could be addressed and substitute counsel could amend

his supplemental petition.

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¶ 7 In November 2022, the postconviction court entered an order

summarily denying the supplemental Rule 35(c) petition. The court

didn’t address the motion for substitute counsel or the motion to

stay the proceeding before entering that order.

¶ 8 Subsequently, the public defender moved for clarification on

the status of counsel, stating that she’d been unaware of the denial

of the supplemental Rule 35(c) petition until Hogue advised her of

the order and she’d been unable to access the order because she’d

been informed that the public defender’s office had been removed as

a party to the case. She noted that Hogue’s motion for substitute

counsel remained outstanding and that she’d received no direct

order from the court about the public defender’s office having been

removed as Hogue’s counsel. She requested clarification as to

whether she’d been removed as counsel, and, if so, whether Hogue

was required to proceed pro se or would be appointed ADC.

¶ 9 In a January 2023 order, the postconviction court stated:

The [c]ourt has reviewed the [m]otion filed by

the [o]ffice[] of the [p]ublic [d]efender. To

clarify, the [p]ublic [d]efender does not

represent [Hogue]. [Hogue] is currently pro se.

Interpreting this [m]otion [for clarification] as a

request by [Hogue] to have representation, the

[c]ourt will find that previous communication

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conflict remains and the [c]ourt will appoint

[ADC] to represent [Hogue] at this time.

¶ 10 Hogue appealed.

II. Analysis

¶ 11 Hogue contends that the postconviction court reversibly erred

by (1) forcing him to proceed pro se at a critical stage of the case

without obtaining a valid waiver of his right to counsel; (2) failing to

adequately inquire into his request for substitute counsel; and

(3) denying the supplemental Rule 35(c) petition before resolving his

motion for substitute counsel based on a breakdown in

communication and affording substitute counsel the opportunity to

amend the supplemental petition with new claims. We address

each contention in turn.

A. Pro Se Representation

¶ 12 In support for his argument that the postconviction court

reversibly erred by requiring him to proceed pro se, Hogue relies on

the constitutional right to counsel. His reliance is misplaced.

¶ 13 A criminal defendant doesn’t have a constitutional right to

counsel in postconviction proceedings under either the United

States Constitution or the Colorado Constitution. Silva v. People,

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156 P.3d 1164, 1167 (Colo. 2007). Instead, defendants have a

limited statutory right to the appointment of postconviction

counsel. Id. at 1168; see also §§ 21-1-103, -104, C.R.S. 2023.

¶ 14 The record is not clear as to why the court’s file reflected that

the public defender’s office had been removed as a party to the case

and that Hogue was acting pro se. While this action is concerning,

Hogue has nevertheless failed to demonstrate how he was

prejudiced by the purported clerical violation of his statutory right

to counsel. Accordingly, he isn’t entitled to any relief on this basis.

See Hagos v. People, 2012 CO 63, ¶ 12 (We review preserved

nonconstitutional errors under the harmless error standard, under

which “reversal is required only if the error affects the substantial

rights of the parties.”); People v. Cardenas, 2015 COA 94M, ¶ 18

(“Harmless error analysis generally applies to violations of statutory

rights.”); Crim. P. 52(a) (When reviewing for harmless error, “[a]ny

error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.”).

B. Inquiry into the Request for Substitute Counsel

¶ 15 Next, Hogue asserts that the postconviction court failed to

conduct the required inquiry into his request for substitute counsel.

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¶ 16 We conclude, however, that any error in the postconviction

court’s consideration of Hogue’s motion for substitute counsel

wouldn’t warrant reversal because the court granted the motion

and afforded him the relief requested — the appointment of

substitute ADC. See Hagos, ¶ 12; People v. Kelling, 151 P.3d 650,

655-56 (Colo. App. 2006) (a trial court’s failure to inquire into a

defendant’s dissatisfaction with appointed counsel is subject to

harmless error review); Crim. P. 52(a).

C. Supplemental Crim. P. 35(c) Petition

¶ 17 Lastly, we consider whether the postconviction court erred by

ruling on Hogue’s supplemental Rule 35(c) petition without first

resolving his motion for substitute counsel. Even accepting Hogue’s

assertion that the court should’ve addressed his motion for

substitute counsel before ruling on the supplemental petition and

assuming that, in light of its January 2023 order, the court

would’ve found the existence of some conflict between Hogue and

the public defender, we perceive no reversible error.

¶ 18 First and foremost, appointed postconviction counsel serves as

“captain of the ship” with regard to a defendant’s representation

and has final authority to decide which postconviction claims to

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pursue in a Rule 35(c) petition — even if the defendant disagrees

with that decision. People v. Smith, 2024 CO 3, ¶¶ 26, 30.

Accordingly, the public defender had the final authority to decide

which claims to raise in the supplemental petition, notwithstanding

Hogue’s dissatisfaction with it.

¶ 19 Hogue presents no authority to demonstrate that, after the

public defender investigated his case and filed the supplemental

Rule 35(c) petition, he would’ve been entitled to the appointment of

new counsel for the purpose of raising other assertedly meritorious

claims. In fact, if the public defender, as “captain of the ship,”

determined that there were no other meritorious claims, then,

barring any ineffective assistance of postconviction counsel (which

we address below), Hogue wasn’t entitled to new counsel to raise

additional claims. See People v. Starkweather, 159 P.3d 665, 667

(Colo. App. 2006) (the limited statutory right to postconviction

counsel didn’t entitle the defendant to the appointment of new

counsel following the public defender’s determination that the

defendant’s pro se petition lacked merit); see also People v. Gresl, 89

P.3d 499, 504 (Colo. App. 2003) (postconviction counsel wasn’t

ineffective for moving to withdraw based on a conclusion that the

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defendant’s pro se petition lacked merit). Nor was Hogue entitled to

demand that a particular court-appointed attorney represent him

with his supplemental petition. See Ronquillo v. People, 2017 CO

99, ¶ 18 (even under the constitutional right to counsel, an indigent

defendant isn’t entitled to court-appointed counsel of choice); People

v. Arguello, 772 P.2d 87, 92 (Colo. 1989) (the constitutional right to

counsel doesn’t give an indigent defendant the right to demand a

particular attorney).

¶ 20 Furthermore, Hogue hasn’t presented any authority to

establish that, had substitute counsel been appointed before the

court ruled on the supplemental Rule 35(c) petition, that counsel

would’ve been permitted to add additional claims. See Smith,

¶¶ 26, 30; see also Moland v. People, 757 P.2d 137, 144 (Colo.

1988) (The “decision on whether to grant leave to amend an

application for postconviction relief to assert a new or different

present need” lies with the trial court.). The supplemental petition

had been pending for well over a year before Hogue filed his motion

for substitute counsel. And in that motion, he admitted that he

spoke with the public defender thirty-five to forty times during 2019

and 2020 to “discuss[] various claims and arguments that could be

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presented in the supplemental 35(c) [p]etition” and that he knew the

supplemental petition was “weak” and contained errors in June

2021, even before the prosecution filed a response. Hogue even

acknowledged that substitute counsel would need to “find a way” to

amend the supplemental petition.

¶ 21 Lastly, even if substitute counsel had been appointed and

permitted to amend the supplemental Rule 35(c) petition to add new

claims, Hogue failed to identify the more meritorious claims that

substitute counsel would’ve discovered and raised.

¶ 22 Hogue’s underlying complaint appears to be that the public

defender’s representation on the supplemental Rule 35(c) petition

allegedly constituted ineffective assistance of counsel — an issue he

directly hints at for the first time in his reply brief. But we don’t

address claims raised for the first time on appeal, see People v.

Goldman, 923 P.2d 374, 375 (Colo. App. 1996), or in a reply brief,

see People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007). Moreover,

such an argument is premature at this time. See People v. Clouse,

74 P.3d 336, 341 (Colo. App. 2002) (“[I]neffective postconviction

counsel claims cannot be asserted until after timely postconviction

relief proceedings and appeals therefrom are exhausted.”).

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III. Disposition

¶ 23 The order is affirmed.

JUDGE TOW and JUDGE KUHN concur.