# People v. Kenny

> Colorado Court of Appeals · January 25, 2001 · 30 P.3d 734

URL: https://www.frixlaw.com/law-library/cases/9795385

## Case

- **Full name:** The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert M. KENNY, Defendant-Appellant
- **Court:** Colorado Court of Appeals
- **Decided:** January 25, 2001
- **Citations:** 30 P.3d 734; 2000 WL 1732408
- **Precedential status:** Published
- **Opinion:** Concurrence by Ruland
- **Judges:** Metzger, Nieto, Ruland
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by West v. People Cano v. People, 341 P.3d 520 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795385

## How later opinions describe it (automated extraction)

- holding that “if an attorney is less than fully licensed,” a defendant’s claim of ineffective assistance based on the attorney’s status must be 18 resolved “by applying a case-by-case approach”
- rejecting a per se rule of ineffectiveness where properly licensed attorneys have been suspended or disbarred and “the technical/substantive distinction” and holding that “if an attorney is less than fully licensed, the Sixth Amendment’s concerns are best satisfied by applying…
- discussing relationship between conflicts of interest and effective assistance of counsel, and stating that “[I]f trial counsel’s ability to represent a defendant is materially limited by his or her own interests, a defendant may be deprived of the right to effective represent…

## Opinion text

Judge RULAND
specially concurring.
I concur in the result reached in Part I of the majority opinion. I write separately relative to Part II of the opinion because I believe the threshold issue to be addressed is defendant's knowledge concerning his representation by a suspended attorney.
In support of its motion to remand the case to the trial court for factual findings, the prosecution attached an affidavit by defendant's former trial counsel in which he states that: "Mr. Kenny was aware that my license to practice law was under suspension for the second trial." He also states: "Mr. Kenny preferred to risk my representation even though I was under suspension." As pertinent here, he finally states that: "Mr. Kenny was aware that one possible consequence of my representation in the second trial would be that he could get another trial due to my misconduct."
I recognize that defendant disputes the credibility of this affidavit. However, if, after an evidentiary hearing, the trial court determines that the contents of the affidavit are accurate, then in my view the issues concerning ineffective assistance of counsel or waiver of conflict free counsel should not be considered further. I reach this conclusion based upon the invited error doctrine. This doctrine provides that a party may not assert on appeal any error that he has invited or injected into the case. People v. Zapata, 779 P.2d 1307 (Colo.1989). This doctrine is especially applicable when that party is seeking, by injecting the error, to preserve the right to a second trial if the result in the first is not satisfactory. See Hansen v. State Farm Mutual Automobile Insurance Co., 957 P.2d 1380 (Colo.1998); Morgan County Department of Social Services v. J.A.C., 791 P.2d 1157 (Colo.App.1989).
If, on the other hand, the court determines that defendant was in fact unaware of trial counsel's status, then I would agree that assessment of counsel's performance under the test set forth in Cantu v. State, 930 S.W.2d 594 (Tex.Crim.App.1996) is appropriate as is the consideration of the remaining issues raised in the Crim.P. 85(c) motion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795385. Public record. Not legal advice.