The United States and Colorado Constitutions guarantee the right to counsel to those accused of crimes. U.S. Const., Amend. VI, XIV; Colo. Const., Art. II, Sec. 16; Gideon v. Wainwright, 372 U.S. 3356, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Escobedo v. Illinois, 378 U.S. 478, 94 S.Ct. 758, 12 L. Ed. 2d 977 (1964).

The right to counsel in a criminal case, to be upheld and enforced in any meaningful way, must include the right to “effective” assistance of counsel. 

The right to effective legal representation means much more than simply having an attorney present during the relevant legal proceedings.  Effective assistance of counsel is one of criminal defendant’s most fundamental rights, and without such assistance a defendant’s remaining rights may be seriously impaired.

Both the state and federal constitutions thus guarantee to the accused in a criminal case the fundamental constitutional right to effective assistance of counsel from attorneys acting as diligent and conscientious advocates.  U.S. Const., Amend. VI, XIV; Colo. Const., Art. II, Sec. 16.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 3052, 80 L.Ed.2d 674 (1984).

In the Strickland decision, the United States Supreme Court set forth the standards by which effective and competent legal representation is measured in the criminal arena.  The Court explained the critical relationship between the right to effective assistance of counsel and the right to a fair trial:

“The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled.”  Strickland, at 685.

Strickland created a two part test for review of ineffective assistance claims. The first step is to determine whether the lawyer’s performance fell below the standard of reasonable competency in the field.


The list of potential examples of deficient or inadequate performance by counsel could include almost any part of the pre-trial or trial process.  Any failure or mistake by counsel could, depending upon the circumstances of the individual case, rise to the level of ineffective assistance.

A lawyer’s failure to adequately investigate the facts of the case, or to properly prepare for trial, may constitute deficient performance.  A lawyer’s inadequate or inaccurate advice regarding a plea bargain offer may, depending on the circumstances of the case, constitute ineffective assistance.

At trial, almost any serious mistake or failure on the part of trial counsel may rise to the level of ineffective assistance.  Errors in the jury selection process, in the cross-examination of prosecution witnesses, or in the presentation of defense evidence may be deficient, in a particular case.  In addition, the failure to consult with appropriate experts, and to present relevant expert witness testimony, may constitute ineffective assistance of counsel.

Because each case is unique, the number and type of potential ineffective assistance claims will depend upon the proceedings of the individual case.


In order to win post-conviction relief, the defendant must then show that the deficient representation, or mistakes of trial counsel,  somehow “prejudiced” the defense.  In order to establish the required prejudice, the defendant need only show that there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland at 694.

The defendant is not required to prove that he would have been acquitted “but for” the performance of his trial counsel.  To the contrary, he must only demonstrate “a probability sufficient to undermine confidence in the outcome.”  Strickland at 694.

The determination of whether a defendant suffered prejudice from his trial lawyer’s performance is generally made after a full hearing on the defendant’s Rule 35(c) motion.  The right to a hearing is discussed below.


Pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, a defendant may seek post-conviction relief upon grounds that “the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.”  Crim.P.35(c)(I).  Under this rule, the court is generally required to “grant a prompt hearing” on the motion, and to “take whatever evidence is necessary for the disposition of the motion.”  Crim.P.35(c)(3). 

The district court must conduct such a hearing “unless the motion, the files, and the record of the case clearly establish that the allegations are without merit and do not warrant post-conviction relief.”  See,  Ardolino v. People,  69 P.2d 73 (Colo. 2003).   Denial of a post-conviction motion without a hearing, where the motion alleges sufficient facts, constitutes reversible error.  See, Ardolino, supra.

A lawyer’s duty to provide effective assistance of counsel includes every phase of the case, including pre-trial investigation, plea negotiations, trial, and sentencing.  Any mistakes or errors along the way may, depending on the case, give rise to a claim of ineffective assistance of counsel.  At Mulligan Breit McConnell, LLC, we have years of experience and success in this type of post-conviction litigation.


Leave a Reply

Your email address will not be published. Required fields are marked *