People v. Hardin

COLORADO COURT OF APPEALS 2016COA175

Court of Appeals No. 14CA0710

City and County of Denver District Court No. 87CR1542

Honorable Elizabeth A. Starrs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Daniel Hardin,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE FOX

Bernard and Richman, JJ., concur

Announced December 1, 2016

Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-

Appellant

¶1 Defendant, William Daniel Hardin, appeals the postconviction

court’s long-awaited order denying his Crim. P. 35(c) motion for

postconviction relief.1 We affirm.

I. Background

¶2 Hardin was accused of robbing three men, Isaac Fisher, Victor

Irving, and Lloyd Rhodes, and of killing two of the men, Fisher and

Irving. The prosecution charged Hardin with one count of

aggravated robbery for the robbery of all three men and with two

counts each of felony murder and murder after deliberation with

respect to the killings of Fisher and Irving. When Hardin’s 1988

trial concluded, the jury found him guilty by separate verdict forms

of two counts of aggravated robbery regarding Irving and Rhodes

and two counts each of felony murder and murder after deliberation

with respect to Fisher and Irving. The jury acquitted Hardin of the

aggravated robbery count with respect to Fisher.

¶3 The trial court entered a judgment of conviction and sentenced

Hardin to consecutive terms of imprisonment of sixteen years for

each aggravated robbery conviction and life for each felony murder

1 The third and final district court judge to preside over this case

finally took action after years of inaction by the judge’s two

predecessors.

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conviction. It did not sentence Hardin on the murder after

deliberation convictions.2

¶4 Several months after the trial, Hardin filed a notice of appeal

regarding the judgment of conviction. Soon after, he requested and

was granted a limited remand to pursue an ineffective assistance

claim, pursuant to Crim. P. 35(c), concerning his trial counsel. To

avoid a conflict of interest, the public defender’s office was allowed

to withdraw from the postconviction proceedings and the appeal. In

granting the remand in 1991, a division of this court ordered that

the postconviction proceedings “be done with all due speed.”

¶5 Over the next six years, the postconviction court appointed a

succession of private attorneys to represent Hardin; they all

withdrew before resolution of the proceedings. The postconviction

court repeatedly set the matter, only to later vacate the settings.

Hardin repeatedly expressed frustration with his legal

2The trial court’s minute orders and mittimus seemingly conflict

with each other as to whether the aggravated robbery and felony

murder convictions regarding Irving merged, and whether Hardin

was sentenced to life imprisonment on each count of felony murder

and murder after deliberation, or just the felony murder

convictions. Two divisions of this court, and the postconviction

court, later interpreted Hardin’s sentences as explained here.

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representation and with his appointed attorneys’ lack of action in

the postconviction court and in this court.

¶6 A division of this court eventually vacated the limited remand

and decided Hardin’s direct appeal in 1997, about ten years after

Hardin committed the underlying crimes. See People v. Hardin,

(Colo. App. No. 88CA1898, Dec. 18, 1997) (not published pursuant

to C.A.R. 35(f)) (Hardin I). That division affirmed Hardin’s

convictions, but it remanded with instructions for the trial court to

vacate the felony murder conviction concerning Irving’s death, enter

a judgment of conviction for the count of murder after deliberation

concerning Irving’s death, and resentence Hardin accordingly.3 Id.

That division also concluded that Hardin’s ineffective assistance of

counsel claims should be considered in a postconviction

proceeding. Id.

¶7 Hardin later filed a pro se Crim. P. 35(c) motion raising

numerous claims, including ineffective assistance of counsel. The

postconviction court denied the motion in 1999 without holding a

hearing, appointing counsel, or resentencing Hardin in accordance

3The resulting sentence for this conviction, finally imposed in 2014,

was life imprisonment.

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with the remand instructions. Hardin appealed the 1999 order

denying his postconviction motion. In December 2000, a division of

this court reversed the order and remanded with instructions to

hold further proceedings on Hardin’s postconviction claims and to

comply with the 1997 remand instructions regarding resentencing.

See People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21, 2000) (not

published pursuant to C.A.R. 35(f)).

¶8 After the remand, the postconviction court appointed another

attorney to represent Hardin in April 2001. Over the next four

years, and after the postconviction court allowed several extensions

of time to supplement Hardin’s pro se Crim. P. 35(c) motion,

Hardin’s appointed counsel failed to file any supplement.

Meanwhile, Hardin made numerous pro se filings expressing his

frustration with his attorney’s inaction and his desire to obtain

adequate counsel. In response to the inactivity in these

proceedings, the postconviction court appointed Hardin’s current

attorney in February 2005.

¶9 Almost eight years later, in December 2012 — about twenty-

four years after trial and about twelve years after Hardin filed his

original Crim. P. 35(c) motion — the third and final trial judge to

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preside over this case since the 2000 remand issued an order

mandating that Hardin’s postconviction proceedings “get moving.”4

Thereafter, Hardin’s attorney filed two supplemental briefs in

support of his motion for postconviction relief. The postconviction

court held an evidentiary hearing over three days on the matter.

After the hearing, the postconviction court denied Hardin’s motion.

In denying the motion, the postconviction court stated that the

twelve-year delay in the postconviction proceedings “did not amount

to a remedial due process violation . . . and, perhaps most

importantly, did not legally prejudice [Hardin].”

¶ 10 Hardin now appeals.

II. Due Process

¶ 11 Hardin argues that the postconviction court erred in

concluding that the proper remedy for the twelve-year delay in

resolving his postconviction claims, which violated his right to due

4 The judge, noting the “excruciating and often inexplicable delays”

in this case, stated that “nothing substantively has been done” in

this case since the December 2000 remand; “no hearing has ever

been held” on Hardin’s Crim. P. 35(c) motion; appointed counsel

had failed to supplement the motion during her nearly seven-year

tenure as Hardin’s attorney; and Hardin’s series of attorneys had

filed “endless motions for extensions of time,” several of which had

yet to be ruled upon.

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process, was to finally address his Crim. P. 35(c) motion, rather

than grant him a new trial. In support of this position, Hardin

asserts that the delay impaired his ability to present his claims for

postconviction relief, as shown by the witnesses’ faded memories

and the unavailability of certain records. Hardin further argues

that we should analyze his due process claim concerning the

twelve-year delay in his postconviction proceedings in the same

manner as appellate delays — that is, under the Colorado Supreme

Court’s iteration of the factors set forth in Barker v. Wingo, 407 U.S.

514 (1972). See Hoang v. People, 2014 CO 27, ¶¶ 48-54. We

conclude that the postconviction court properly declined to grant

Hardin a new trial on this issue, but we respectfully disagree with

the postconviction court’s legal analysis.

A. Preservation, Standard of Review, and Applicable Law

¶ 12 The parties agree that this issue has been properly preserved.

¶ 13 This issue presents a mixed question of fact and law. See

People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010). We defer to

a postconviction court’s findings of fact if they are supported by

evidence in the record, and we review its conclusions of law de

novo. See Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007).

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¶ 14 As a matter of first impression, we determine that due process

claims arising from delays in resolving motions for postconviction

relief should be analyzed under the balancing test set forth in

Barker, 407 U.S. at 530. Although this test was originally applied

to issues concerning a defendant’s Sixth Amendment right to a

speedy trial, courts have employed it in the context of due process

claims arising from delays in various legal proceedings. See, e.g.,

People v. Smith, 183 P.3d 726, 730 (Colo. App. 2008) (delay

regarding a probation revocation hearing); People v. Rios, 43 P.3d

726, 732 (Colo. App. 2001) (delay in appellate proceedings);

Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. Ct. 2010)

(delay in resolving a motion for postconviction relief). We see no

reasoned basis why the Barker factors should not inform our

analysis in the context of postconviction proceedings.

¶ 15 Under this test, a court should consider the following factors:

(1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his or her right; and (4) whether the

defendant suffered prejudice as a result of the delay. Rios, 43 P.3d

at 732; accord Barker, 407 U.S. at 530. The length of the delay

must be at least presumptively prejudicial to the defendant before

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further inquiry into the other factors is warranted. See Barker, 407

U.S. at 530. No single factor is determinative. Id. at 533. “Rather,

they are related factors and must be considered together with such

other circumstances as may be relevant.” Id.

B. Analysis

¶ 16 Employing the Barker balancing test here, we defer to the

postconviction court’s factual findings and agree that the delay did

not violate Hardin’s right to due process in a manner entitling him

to a new trial. See Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e

can affirm on any grounds supported by the record.”).

1. Length of the Delay

¶ 17 Under these circumstances, we are satisfied that the twelve-

year delay was presumptively prejudicial and warrants further

inquiry into the other Barker factors. See Moody v. Corsentino, 843

P.2d 1355, 1364 (Colo. 1993) (finding an eight-year delay sufficient

to proceed to examining the other Barker factors); see also Smith,

183 P.3d at 730 (finding a six-year delay sufficient).

2. Reason for the Delay

¶ 18 The second factor “examines whether the government or the

criminal defendant is ‘more to blame’ for the delay.” Hoang, ¶ 50

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(citation omitted). The postconviction court found that the

“negligence” of counsel and of the postconviction court were to

blame for the twelve-year delay. While any negligence of the

postconviction court and the prosecution’s counsel is likely

attributable to the government, see id. (attributing delays caused by

court reporters to the government), any negligence of Hardin’s

counsel is, unfortunately, attributable to him, even though his

attorneys were appointed by the court.5 See Vermont v. Brillon, 556

U.S. 81, 91 (2009) (“[D]elay caused by the defendant’s counsel is

also charged against the defendant . . . whether counsel is privately

retained or publicly assigned . . . .”); Glaser, 250 P.3d at 635.

Consequently, we conclude that this factor weighs in favor of

neither Hardin nor the government, as both inexcusably

contributed to the delay. See Barker, 407 U.S. at 531 (noting that

delays caused by negligence do not weigh as strongly against the

government as those caused intentionally).

5Any issues Hardin may have with the assistance of his appointed

counsel are not currently before us; they would be part of a

separate proceeding.

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3. Assertion of Right

¶ 19 On the third factor, the record evidences Hardin’s numerous

letters and pro se motions expressing his desire to have his claims

for postconviction relief decided and his frustration with the

inaction of the court and of his attorneys. Thus, this factor weighs

in Hardin’s favor. See Smith, 183 P.3d at 730.

4. Prejudice

¶ 20 Regarding the final factor, we examine whether Hardin

suffered prejudice as a result of the delay, particularly whether the

delay impaired Hardin’s ability to prepare his case for

postconviction relief. See Barker, 407 U.S. at 532.

¶ 21 The record supports the postconviction court’s findings

regarding the evidence, in the form of tangible records and

witnesses, available to Hardin at the time of the evidentiary hearing.

The postconviction court found that only a “small part” of the

record was unavailable as a result of the delay, and it found the

witness testimony available to Hardin was sufficient for him to “fully

and completely” present his claims. Importantly, the court

reasoned that if anyone was prejudiced by Hardin’s trial attorney’s

“often dim memory” and the unavailability of certain evidence, it

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was the prosecution. Hardin testified at the hearing and often

contradicted trial counsel’s testimony.

¶ 22 While the record shows that the witnesses’ memories had

dimmed to some degree by the time the evidentiary hearing was

held, it also shows that the witnesses were able to recall key details,

such as trial counsel’s strategic reason for declining to object to the

duplicity or trifurcation6 of the aggravated robbery charge. On this

record, we cannot say that Hardin was significantly prejudiced in

presenting his postconviction claims as a result of the delay.

Deferring to the postconviction court’s factual findings, we agree

that Hardin has not demonstrated prejudice resulting from the

delay sufficient to establish a due process violation.

¶ 23 Accordingly, because Hardin did not make an adequate

showing of prejudice, we agree with the postconviction court that

the proper remedy for this delay was to address the motion

6 Initially, the prosecution charged Hardin with a single count of

aggravated robbery for robbing three different men; this count gave

rise to a potential duplicity objection. The jury, however, convicted

Hardin of two separate counts of aggravated robbery and acquitted

him of a third aggravated robbery count regarding Fisher; the three

separate counts considered by the jury gave rise to a potential

trifurcation objection.

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posthaste, rather than to grant a new trial. See People v. Valdez,

178 P.3d 1269, 1279 (Colo. App. 2007).

¶ 24 Although we conclude that Hardin received the proper remedy

for the twelve-year delay, we emphasize that the conduct that

precipitated this lengthy delay is unacceptable in a legal system

that is designed to provide criminal defendants with reasonably

prompt resolutions of their postconviction motions. Under different

circumstances, such a delay in postconviction proceedings could

give rise to a cognizable due process violation. Cf. Burkett, 5 A.3d

at 1275-80 (analyzing a potential due process violation under the

Barker test in the context of postconviction proceedings).

III. Motion for Postconviction Relief

¶ 25 Hardin argues that the postconviction court erroneously

denied his motion for postconviction relief. We disagree.

A. Sufficient Factual Findings and Legal Conclusions

¶ 26 Hardin asserts that the postconviction court abused its

discretion by not making findings of fact or conclusions of law as to

whether his trial counsel was ineffective in failing to object to the

duplicity or the trifurcation of the aggravated robbery charge. Had

trial counsel properly objected and had the charge not been

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trifurcated, Hardin argues, the jury likely would have been unable

to reach a unanimous verdict or would have acquitted him of

aggravated robbery and felony murder. At the very least, Hardin

asserts, this would have preserved the issue and allowed his

success on direct appeal. Consequently, Hardin asks us to remand

for further proceedings on this issue. We are unpersuaded.

1. Preservation, Standard of Review, and Applicable Law

¶ 27 The parties agree that this issue has been properly preserved.

¶ 28 In a Crim. P. 35(c) proceeding, a conviction is presumed valid

and the defendant bears the burden of proving his or her

entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We

defer to a postconviction court’s findings of fact if they are

supported by the record, and we review its conclusions of law de

novo. See id. at 1063.

¶ 29 To succeed on an ineffective assistance claim, a defendant

must show that counsel’s performance was constitutionally

deficient and that this deficient performance prejudiced the defense.

See Strickland v. Washington, 466 U.S. 668, 687 (1984); Dunlap,

173 P.3d at 1062. To satisfy the performance prong, the defendant

must show that counsel’s representation fell below an objective

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standard of reasonableness. Dunlap, 173 P.3d at 1062. To satisfy

the prejudice prong, the defendant must show that there is a

reasonable probability that, but for the deficient performance, the

result of the proceeding would have been different. Id. at 1063;

People v. Washington, 2014 COA 41, ¶¶ 21-29. If a court

determines that a defendant has failed to prove either prong of the

Strickland test, it may deny the claim on that ground without

addressing the other prong. Strickland, 466 U.S. at 697; see also

People v. Naranjo, 840 P.2d 319, 324 (Colo. 1992).

¶ 30 When resolving a motion pursuant to Crim. P. 35(c), a court

must make findings of fact and conclusions of law sufficient to

explain the basis of its ruling. People v. Rodriguez, 209 P.3d 1151,

1157 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010). To

constitute an abuse of discretion, the postconviction court’s

decision must be shown to be manifestly arbitrary, unreasonable,

or unfair. See People v. White, 55 P.3d 220, 223 (Colo. App. 2002).

A court’s failure to exercise discretion can be an abuse of discretion.

People v. Darlington, 105 P.3d 230, 232 (Colo. 2005).

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2. Analysis

¶ 31 Because the postconviction court made factual findings

regarding the lack of prejudice Hardin suffered as a result of any

alleged ineffective assistance of trial counsel, we defer to those

findings and conclude that Hardin has not satisfied the prejudice

prong of the Strickland test. As a result, we see no need to remand

for further proceedings on this issue, and we affirm.

¶ 32 In its order denying Hardin’s motion, the postconviction court

made extensive findings, supported by the record, as to the strength

of the prosecution’s case and the challenges Hardin had to

overcome. The postconviction court placed the numerous

ineffective assistance allegations Hardin made in seeking

postconviction relief into three groups, and it addressed some

allegations generally and the rest specifically. Finally, the court

concluded that “none of the claimed instances of . . . ineffectiveness

would, separately or together, likely have had any impact on the

outcome of this case.”

¶ 33 Moreover, a division of this court found that Hardin had “failed

to demonstrate any prejudice resulting from the manner in which

the aggravated robberies were charged,” in part because of the trial

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court’s uncontested power to allow constructive amendments or

variances of a criminal information at any time before the verdict.

See Hardin I, slip op. at 6. We find no support in the record for

Hardin’s speculative assertions that the trial court (1) would have

likely refused to allow the amendment or variance upon objection or

(2) abused its discretion in allowing this amendment or variance

regardless of whether trial counsel made the desired objection.

¶ 34 We conclude that, although the postconviction court only

addressed some of Hardin’s arguments specifically, it addressed all

of his arguments at least generally. Consequently, we conclude

that, whether implicitly or expressly, the postconviction court

denied all of Hardin’s arguments. Cf. Bd. of Cty. Comm’rs

v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (“When a trial court

does not rule on a motion, it may be considered implicitly denied or

such failure to rule may be considered harmless error.”) (citation

omitted).

¶ 35 We therefore determine that the postconviction court’s findings

of fact and conclusions of law sufficiently provided the basis of its

ruling — namely, that Hardin had failed to satisfy the prejudice

prong of Strickland. See People v. Breaman, 939 P.2d 1348, 1352

16

(Colo. 1997); see also People v. Chipman, 2015 COA 142, ¶¶ 88-85

(concluding that the postconviction court’s order was sufficient to

set forth the basis of its denial of a Crim. P. 35(c) motion where the

order was merely a motion from the prosecution asking the court to

deny the defendant’s motion with the word “granted,” the judge’s

initials, and the date written on it). The postconviction court’s lack

of specific factual findings on the arguments at issue, accordingly,

did not constitute an abuse of discretion.

¶ 36 Finally, assuming without deciding that trial counsel’s failures

to object constituted ineffective assistance, we defer to the

postconviction court’s factual findings, and we determine that

Hardin has not satisfied the prejudice prong of the Strickland test.

See Strickland, 466 U.S. at 697.

B. Waiver of the Right to Testify

¶ 37 Lastly, Hardin contends that the postconviction court erred in

finding that he validly waived his right to testify at trial. Hardin

notes that he initially expressed his desire to testify after the trial

court’s first advisement regarding his right to testify. Later that

same day, however, Hardin decided not to testify. Hardin claims

that trial counsel improperly interfered with his right to testify.

17

Also, according to Hardin, the trial court’s second advisement,

which incorporated the initial advisement by reference and was

made after he changed his mind about testifying, was insufficient.

Therefore, he argues, his waiver was not voluntary, knowing, or

intelligent.

1. Preservation, Standard of Review, and Applicable Law

¶ 38 The parties agree that this issue has been properly preserved.

¶ 39 In a Crim. P. 35(c) proceeding, a conviction is presumed valid

and the defendant bears the burden of proving his or her

entitlement to postconviction relief. Dunlap, 173 P.3d at 1061. We

defer to a postconviction court’s findings of fact if they are

supported by the record, and we review its conclusions of law de

novo. See id. at 1063. The postconviction court determines the

weight and credibility to give to the testimony of witnesses at a

Crim. P. 35(c) hearing. See id. at 1061-62.

¶ 40 To be valid, a defendant’s waiver of the right to testify must be

knowing, voluntary, and intelligent. People v. Curtis, 681 P.2d 504,

514 (Colo. 1984), modified, People v. Blehm, 983 P.2d 779 (Colo.

1999). To this end, a trial court should advise the defendant

outside the presence of the jury that (1) the defendant has the right

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to testify; (2) if he or she wants to testify, no one can prevent him or

her from doing so; (3) if the defendant testifies, the prosecution will

be allowed to cross-examine him or her; (4) if the defendant has

been convicted of a felony, the prosecutor will be entitled to ask

about it; and (5) if the felony conviction is disclosed to the jury, the

jury can be instructed to consider it only as it bears on the

defendant’s credibility. Id. at 514-15. Regardless of whether the

trial court’s Curtis advisement contained the requisite five elements,

the essential task before the postconviction court is to determine

whether the defendant’s waiver of the fundamental constitutional

right to testify was knowing, voluntary, and intelligent. Moore v.

People, 2014 CO 8, ¶ 22.

2. Analysis

¶ 41 We conclude that the postconviction court rightly determined

that Hardin validly waived his right to testify.

¶ 42 The record supports the postconviction court’s findings that

the trial court initially gave Hardin a proper Curtis advisement that

included the five requisite elements and that, in turn, Hardin gave

coherent responses. During the second Curtis advisement, given

after Hardin decided not to testify, the trial court incorporated the

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initial advisement that it had given mere hours earlier and

reiterated that Hardin had the right to testify in spite of his

attorney’s advice to the contrary. Hardin’s responses show that he

remained firm in his decision to forgo testifying. We defer to the

postconviction court’s factual findings and agree that Hardin’s

waiver was voluntary, knowing, and intelligent. See Dunlap, 173

P.3d at 1063.

¶ 43 Additionally, the record supports the finding that, although

trial counsel strongly advised Hardin against testifying, trial

counsel did not “intimidate” Hardin or otherwise improperly

interfere with his ability to choose whether to testify. The

postconviction court found trial counsel’s related testimony at the

evidentiary hearing more credible than Hardin’s. We may not

disregard this credibility determination. See id. at 1061-62.

¶ 44 Therefore, we agree that Hardin’s waiver was valid, and we

affirm.

IV. Conclusion

¶ 45 The order is affirmed.

JUDGE BERNARD and JUDGE RICHMAN concur.

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