v. Chalchi-Sevilla

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY May 16, 2019 2019COA75 No. 17CA0628, People v. Chalchi-Sevilla — Criminal Procedure — Postconviction Remedies; Constitutional Law — Sixth Amendment — Right to Counsel; Attorneys and Clients — Ineffective Assistance of Counsel In this case, a division of the court of appeals reverses the trial court’s summary denial of a pro se postconviction petition because the defendant alleged sufficient facts that, if true, may warrant relief. For the first time, the division concludes that the proper remedy is to remand with instructions to restore the postconviction petition to the point at which the error occurred; pursuant to Crim. P. 35(c)(3)(V), the postconviction court is instructed to refer the entire petition to counsel, and counsel is permitted to supplement the claims if deemed appropriate by counsel. COLORADO COURT OF APPEALS 2019COA75 Court of Appeals No. 17CA0628 El Paso County District Court No. 10CR1604 Honorable Robin L. Chittum, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Ricardo Chalchi-Sevilla, Defendant-Appellant. ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TOW Taubman and Berger, JJ., concur Announced May 16, 2019 Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Ricardo Chalchi-Sevilla, Pro Se ¶1 Defendant, Ricardo Chalchi-Sevilla, appeals the postconviction court’s 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 Chalchi-Sevilla shot and killed a store owner during an attempted robbery. At trial, the jury found him guilty of, among other charges, first degree felony murder and attempted aggravated robbery. The trial court sentenced him to life in the custody of the Department of Corrections (DOC) without the possibility of parole. ¶3 On direct appeal, a division of this court affirmed the judgment of conviction. See People v. Chalchi-Sevilla, (Colo. App. No. 12CA0202, Feb. 19, 2015) (not published pursuant to C.A.R. 35(f)). ¶4 Chalchi-Sevilla later filed the pro se Crim. P. 35(c) motion at issue, raising two claims of ineffective assistance of his trial counsel. His first claim related to his counsel’s advice regarding whether he should accept a plea offer from the prosecution. His second claim related to his counsel’s advice regarding whether he 1 should testify at trial. He requested that postconviction counsel be appointed to represent him. ¶5 The postconviction court issued a written order denying the Crim. P. 35(c) motion without appointing counsel or holding an evidentiary hearing. II. Applicable Law and Standard of Review ¶6 A defendant’s Sixth Amendment right to effective assistance of counsel extends ...

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