Peo v. Warro

23CA0559 Peo v Warro 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0559

Larimer County District Court Nos. 20CR1816, 21CR424 & 21CR77

Honorable Laurie K. Dean, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Michael Warro,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE LUM

Harris and Brown, JJ., concur

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

Announced July 3, 2024

Philip J. Weiser, Attorney General, Megan C. Rasband, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Daniel Michael Warro, seeks to vacate three guilty

pleas entered in the global disposition of Larimer County case

numbers 20CR1816, 21CR77, 21CR424, and 21CR394. He appeals

the district court order denying his Crim. P. 35(c) motion without

appointing postconviction counsel or holding an evidentiary

hearing. We reverse and remand for further proceedings.

I. Background

¶ 2 The four cases in Warro’s global disposition were based on

evidence that he (1) drugged two women without their consent and

had sex with them; (2) held his wife at gunpoint, injured her eye,

threw her phone down the stairs, and grabbed their infant while

holding a gun; (3) resisted arrest and injured two police officers

while reaching for a handgun; and (4) violated bail bond conditions

and a protection order. The prosecution agreed to dismiss the

fourth case, plus twelve felony and four misdemeanor counts from

the first three cases, in exchange for Warro’s guilty pleas to

(1) second degree assault, (2) felony menacing, and (3) second

degree assault, respectively.

¶ 3 The district court accepted Warro’s pleas and ordered a

presentence report (PSR) and sex-offense-specific evaluation

2

(SOSE). Two months later, it sentenced Warro to an aggregate

prison term of twelve years, plus a consecutive fifteen years of sex

offender intensive supervision probation, in accordance with the

plea agreements.

¶ 4 Warro timely filed a pro se Crim. P. 35(c) motion to vacate his

three guilty pleas. He requested the appointment of counsel and

claimed, among other things, that (1) his guilty plea was

unconstitutional because he was not mentally competent to enter a

plea agreement and (2) his counsel was ineffective for failing to raise

the issue of his competence prior to his guilty plea. The district

court denied the motion without appointing counsel and without a

hearing. In its lengthy order, the court found that the record —

specifically, Warro’s written yes/no answers on the guilty plea

questionnaires, his statements during the providency hearing, and

the PSR and SOSE — refuted his mental incapacity claim because it

established that Warro was competent. As a result, it also

concluded that Warro’s ineffective assistance claim failed because

he could not establish that he was prejudiced by counsel’s failure to

raise the issue of his competency.

3

II. Discussion

¶ 5 Warro contends that he is entitled to the appointment of

postconviction counsel and a hearing. Although at times framed

through the lens of his ineffective assistance claim, Warro’s primary

argument appears to be that the district court erred by concluding

that the record clearly establishes his competency. We agree with

Warro, conclude that he alleged sufficient facts to merit the

appointment of counsel, and remand for further proceedings under

Crim. P. 35(c).

A. Standard of Review and Remedy

¶ 6 We review both the summary denial of a Crim. P. 35(c) motion

and the constitutional validity of a guilty plea de novo. People v.

Marquez, 2020 COA 170M, ¶ 17 (summary denial); Brooks v. People,

2019 CO 75M, ¶ 6 (constitutionality of plea). A court may deny a

defendant’s Crim. P. 35(c) motion without an evidentiary hearing

“only where the motion, files, and record in the case clearly

establish that the allegations presented in the defendant’s motion

are without merit and do not warrant postconviction relief.”

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

4

¶ 7 If we conclude that a summary denial was in error, the remedy

is to “put the train back on the tracks at the point it derailed.”

People v. Chalchi-Sevilla, 2019 COA 75, ¶ 23. When the district

court denies a defendant’s request for appointment of counsel and

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

meritorious claim, the proper procedure is to remand with

directions to (1) appoint postconviction counsel, (2) allow counsel to

supplement the petition, and (3) hold an evidentiary hearing on any

potentially meritorious claims. Id. at ¶ 25.

B. Applicable Law

¶ 8 A criminal defendant may not plead guilty “unless he does so

‘competently and intelligently.’” Godinez v. Moran, 509 U.S. 389,

396 (1993) (citations omitted). “The focus of a competency inquiry

is the defendant’s mental capacity; the question is whether he has

the ability to understand the proceedings.” Id. at 401 n.12. When

there is some doubt about the defendant’s competency, the court

should consider and resolve the issue based on factors including

(1) defense counsel’s evaluation, (2) expert opinion, and (3) the

defendant’s demeanor and interactions during court appearances.

See Blehm v. People, 817 P.2d 988, 994 (Colo. 1991).

5

¶ 9 A defendant is incompetent to enter a guilty plea if, as a result

of a mental or developmental disability, the defendant does not have

(1) “sufficient present ability to consult with [his] lawyer with a

reasonable degree of rational understanding in order to assist in the

defense,” or (2) “a rational and factual understanding of the

criminal proceedings.” § 16-8.5-101(12), C.R.S. 2023; see Godinez,

509 U.S. at 396. “‘Mental disability’ means a substantial disorder

of thought, mood, perception, or cognitive ability that results in

marked functional disability, significantly interfering with adaptive

behavior.” § 16-8.5-101(15).

¶ 10 Although a defendant’s statements at a providency hearing

“carry a strong presumption of verity,” courts cannot fairly exclude

“all possibility that a defendant’s representations” were the product

of factors — such as mental incapacity — that would render the

guilty plea unconstitutional. Blackledge v. Allison, 431 U.S. 63, 74-

75 (1977); see Sanchez-Martinez v. People, 250 P.3d 1248, 1255,

1257-59 (Colo. 2011) (the defendant’s plea was unconstitutional

despite his signature on “an advisal of rights form” and a Rule 11

colloquy at the providency hearing). To merit a postconviction

6

hearing, Warro must merely assert facts that, if true, may warrant

relief. See Chalchi-Sevilla, ¶ 7.

C. Application

1. Allegations Made in the Motion

¶ 11 Warro’s motion alleged, in substantial detail, that he did not

understand the plea proceedings due to mental health issues, new

psychotropic medications, and traumatic brain injuries. In addition

to alleging that Warro suffered from long-term mental health issues

with depression and anxiety, the motion alleged that he suffered

from three concussions beginning with his arrest on March 4, 2021

— injuries that caused multiple hospitalizations in addition to

retrograde and anterograde amnesia. He also alleged that he was

prescribed thirteen new medications in the months following his

arrest and that he had adverse reactions to some of them. As a

result, Warro alleged, he could not “remember anything,

understand difficult information[,] or participate in legal

proceedings” during the months following his injuries.

1

1

He also alleged that he relayed myriad symptoms to jail personnel,

including, but not limited to, “amnesia, confusion, hallucinations,

anxiety, concentration issues, disorientation . . . difficulty

remembering new information . . . [and] personality changes.”

7

¶ 12 Warro also asserted that (1) he did not understand his

attorney’s communications and had to call his mother after every

visit; (2) he was assigned a peer counselor by the detention facility

due to his “continuous lack of awareness”; and (3) his attorney

asked him on “multiple occasions” if he believed he was competent,

to which Warro responded that he “honestly did not know.”

¶ 13 Finally, Warro listed specific sources of evidence that would

support his allegations, including (1) video evidence;

(2) correspondence between health care professionals at the

detention facility acknowledging his “cognitive issues, amnesia,

hallucinations[,] and confusion”; and (3) written correspondence

between his attorney and his mother.

¶ 14 Given the specificity of Warro’s allegations, the precise facts

alleged, and the sources of evidentiary support Warro listed, we

conclude that Warro has alleged sufficient facts that, if true, may

warrant relief. Chalchi-Sevilla, ¶ 7. But this does not end our

inquiry. We must also consider whether the record clearly refutes

Warro’s claim, as the district court and the People contend. We

conclude it does not.

8

2. The Questionnaire and Providency Hearing

¶ 15 The district court concluded that Warro’s yes or no answers on

the plea questionnaire and during the providency hearing establish

his competency. We disagree.

¶ 16 We acknowledge that Warro’s yes or no answers could

generally support a finding that he understood the proceedings, but

we are not persuaded that simple yes or no answers, by themselves,

are sufficient to refute Warro’s claim that he lacked the mental

capacity to enter pleas. The cases the People cite do not stand for

this proposition, and we are not aware of any that do. See, e.g.,

Sanchez-Martinez, 250 P.3d at 1257-59; see also Von Pickrell v.

People, 163 Colo. 591, 598, 431 P.2d 1003, 1006-07 (1967)

(“However regular the proceedings . . . might appear from the

transcript, it still might be the case that petitioner did not make an

intelligent and understanding waiver of his constitutional rights.”

(quoting Sanders v. United States, 373 U.S. 1, 19-20 (1963))).

¶ 17 Our review of case law shows that a providency hearing could

refute an incompetency claim if it included one or more of the

following (1) defense counsel’s assessment that the defendant is

competent, see Blehm, 817 P.2d at 994; (2) an expert’s

9

contemporaneous competency evaluation, see id. at 995; People v.

Pendleton, 2015 COA 154, ¶¶ 12-13; (3) an extensive inquiry into

the defendant’s competency by the court, see Blehm, 817 P.2 at

994-95; and (4) clear competency findings, see id.; People v. Venzor,

121 P.3d 260, 262 (Colo. App. 2005) (concluding that the record

refuted any concerns about the defendant’s mental capacity when

the providency court found, with record support, that the defendant

was “alert and intelligent,” had given the plea “quite a bit of

thought,” had expressed himself regarding the elements of the

agreement, and “knows what he is doing and he understands this

decision”). But none of these were present here.

2

¶ 18 Moreover, there were two relevant exchanges that went beyond

yes or no responses from Warro, and they are conflicting as to

Warro’s competency. First, the court asked whether Warro felt like

his medications interfered with his ability to understand, or

whether he felt clear headed. Warro answered, “I feel fine,” which

does not directly answer whether Warro felt like his medications

2

Because the district court denied Warro’s motion for transcripts at

state expense, we don’t have a record of every possible discussion of

competency in this case. However, we have access to the

transcripts relied on by the district court.

10

affected his understanding or if he felt clear headed. The court

followed with the compound question, “Do you understand what’s

going on, and there’s no reason why I can’t take your plea today?”

Warro answered, “No, Your Honor.” — which could mean that he

didn’t understand what was going on, depending on which part of

the question he was answering.

¶ 19 The second notable exchange concerned Warro’s guilty plea to

felony menacing. It proceeded as follows:

THE COURT: And, Mr. Warro, what did you

do that makes you guilty of menacing?

WARRO: To describe it or --

THE COURT: Did you menace someone?

WARRO: Oh. Yes.

THE COURT: And, who did you menace, and

what with?

WARRO: Ah. It was my then wife.

THE COURT: Okay. And --

WARRO: And, why?

THE COURT: And, did you have a weapon?

WARRO: I don’t think so.

11

In our view, this exchange suggests both that Warro had difficulty

following the line of questions and that he did not remember the

events underlying the menacing charge. Cf. Blehm, 817 P.2d at 994

(where the defendant “exhibited no confusion whatever to the

court’s questions and responded clearly and precisely to each

question”). Nonetheless, the court found that Warro’s plea was

knowingly, voluntarily, and intelligently given. And it found the

same for Warro’s two subsequent guilty pleas, without any further

significant exchanges with Warro. The court made no findings with

respect to whether Warro had the ability to understand the

proceedings.

¶ 20 Thus, we read the exchanges at the providency hearing to

provide only questionable evidence of competency, which is not

sufficient to “clearly establish” that the allegations in Warro’s

motion are without merit.

3

Cf. People v. McGlaughlin, 2018 COA

114, ¶ 31 (a district court “may make a dispositive factual finding

3

We do not go so far as to conclude that these exchanges gave the

district court “reason to believe” Warro was incompetent, which

would require suspension of the proceedings. § 16-8.5-102(2)(a),

C.R.S. 2023; see Nagi v. People, 2017 CO 12, ¶ 11. We conclude

only that these exchanges do not refute Warro’s claim of mental

incapacity.

12

without a hearing only when the fact in question is ‘clearly

established,’” meaning that the record does not contain conflicting

evidence).

3. Mental Health Evidence

¶ 21 As to the SOSE and PSR, the court noted that Warro had

received a “robust evaluation” and acknowledged that he was

receiving treatment for mental health issues, but it found “no

indication . . . that any of [Warro’s] mental health concerns were so

significant as to give rise to an implication that he could not

understand the proceedings, participate in his defense, [or] consult

with his attorney in a rational manner.” Warro argues that the

court erred by relying on those documents because they were

completed one and two months, respectively, after the providency

hearing. We agree that the SOSE and PSR don’t clearly refute

Warro’s incompetency claim. Not only were they created some time

after the providency hearing, they also provide at least some

evidence to support Warro’s contentions he did not have the mental

capacity to enter guilty pleas. This evidence includes

• the summary of psychological assessments from Warro’s

SOSE, showing clinical range symptoms in many

13

dimensions, “mental health issues that are impacting his

daily functioning,” and the following opinion: “It is clear

Mr. Warro is experiencing significant psychological

difficulties, and he should be more intensively

evaluated.”;

• the SOSE showing that Warro self-reported active

hallucinations, daily headaches, a history of head

injuries, and unmanageable symptoms of anxiety and

depression;

• the PSR recommendation that “Mr. Warro should

complete a psychological evaluation to ascertain the

extent of his mental health issues”;

• PSR input from the Larimer County Jail — “most

notations involved [Warro’s] strange behavior (to include

confusion, possible hallucinations, talking to himself)

and suicidal statements”; and

• a victim’s statement on the PSR that Warro’s “mental

state and behaviors are not predictable or rational.”

¶ 22 Based on this evidence, we cannot conclude that the SOSE

and PSR clearly refute Warro’s incompetency claim. Moreover, the

14

evidence summarized in those documents is persuasive because it

was obtained from multiple sources — it does not simply list

Warro’s self-reported symptoms.

¶ 23 We do not consider whether the record establishes that Warro

was competent at the sentencing hearing because competency at

that time, two months after the providency hearing, does not

establish that Warro was competent when he pleaded guilty. Cf.

Pendleton, ¶¶ 12-13 (affirming a postconviction court’s finding —

after an evidentiary hearing — that the defendant had been

competent to enter a plea, in part because the evidence presented

included three contemporaneous competency evaluations).

¶ 24 For all these reasons, we conclude that Warro’s competency

claim has arguable merit. See Chalchi-Sevilla, ¶ 7. Accordingly, we

remand for the appointment of postconviction counsel, for

postconviction counsel to have the opportunity to supplement his

petition, and for the postconviction court to then hold an

evidentiary hearing on any potentially meritorious claims. Id. at ¶¶

24-26; Ardolino, 69 P.3d at 77; see also Crim. P. 35(c)(3)(V).

15

III. Disposition

¶ 25 The order is reversed and the case is remanded for further

proceedings consistent with this opinion.

JUDGE HARRIS and JUDGE BROWN concur.