Ineffective Assistance of Counsel at the Plea and Sentencing Stage: Conviction and Sentence Vacated

Last week in Larimer County District Court, Patrick Mulligan was able to win yet another postconviction (Rule 35c) proceeding. Our client’s conviction and sentence were vacated, and his case will be set for a new trial.

Prior to the guilty plea in this case, trial counsel failed to undertake any investigation into the issue of “serious bodily injury.” Trial counsel then repeatedly mis-advised the client on the sentencing range for Second Degree Assault.

While a typical Class 4 felony would carry a presumptive range sentence of 2 to 6 years, Second Degree Assault is not typical. First, the charge is designated as an “extraordinary risk” crime. This changes the sentencing range from 2 to 6 years up to 2 to 8 years.

Next, if the Second Degree Assault charge includes an allegation of “serious bodily injury,” the charge is subject to “crime of violence” sentencing. This results in a sentencing range, under subsection (g) of the statute, of 5 to 16 years.

In the case at issue, trial counsel failed to research these issues, and failed to accurately advise the client on the sentencing range. What happened in court made matters worse.

At the plea hearing, the parties advised the court that the Defendant would be entering a plea of guilty to Second Degree Assault. The court advised the Defendant that the sentencing range was 2 to 6 years. This was incorrect, but no one interrupted or corrected the court.

Weeks later, at the sentencing hearing, the prosecutor eventually advised the court that the correct sentencing range was actually 5 to 16 years. Defense counsel failed to alert the court to the unfairness to the Defendant from the change in sentencing range. The court imposed a 12 year sentence to the Department of Corrections (“DOC”).

Patrick Mulligan prepared a detailed Motion for Postconviction Relief, pursuant to Rule 35c of the Colorado Rules of Criminal Procedure. In the motion, Patrick alleged that the Defendant’s rights to due process and to effective assistance of counsel were violated by the errors of the trial court and counsel.

After the contested hearing on the Rule 35c motion, the trial court agreed on both counts. First, the trial court found that the mis-advisement by the trial court at the plea hearing resulted in a violation of the Defendant’s right to due process. Second, the court found that plea counsel provided ineffective assistance of counsel at the plea and sentencing stages of the proceeding.

Because the Defendant’s constitutional rights were violated, the trial court ordered that his conviction and sentence be vacated. The court further ordered the Department of Corrections to release the Defendant. Within hours, our client was home with his family.

Patrick Mulligan has 34 years of experience as a criminal defense attorney. His expertise has resulted in reversal of dozens of convictions and sentences. Postconviction litigation is complex, and requires skill and experience. If you or someone you love have suffered a criminal conviction, and believe that it may be the result of ineffective assistance of counsel call Patrick Mulligan at 303-295-1500. We can help.