Can attorneys representing defendants who are challenging their criminal convictions discard certain claims without their clients’ informed consent?

The Colorado Supreme Court announced on Monday it will review the question after the state’s Court of Appeals last year decided a Larimer County judge was wrong to assume a defendant’s lawyer had abandoned some of her client’s arguments, with no evidence the defendant intended for that to happen.

At least three of the Supreme Court’s seven members must consent to hear a case on appeal.

A jury convicted Anthony Robert Smith of multiple child sex assault offenses in 2013. Five years later, Smith filed his own motion asking for postconviction relief, alleging new evidence, prosecutorial misconduct and constitutionally ineffective levels of assistance from his trial lawyer. The court appointed an attorney for Smith, who then filed a supplemental motion focusing specifically on three ineffective assistance claims.

District Court Judge Gregory M. Lammons denied Smith’s request for postconviction relief, only addressing the three claims in the supplemental motion. Because Smith’s lawyer did not have a duty to pursue meritless claims and she had not referenced many of Smith’s initial contentions, Lammons believed Smith had waived his opportunity for a judge’s review of the remaining allegations.

On appeal, a three-judge panel of the Court of Appeals decided that Smith’s attorney was not obligated to re-raise her client’s original issues when he was self-represented, or “pro se.” As long as Smith had not intended to relinquish his claims, Lammons should have considered them.

Nothing, wrote Judge Rebecca R. Freyre, “shows that counsel considered Smith’s pro se claims to be meritless or that she sought (or received) Smith’s informed consent to waive any claims.”

Both parties appealed to the Supreme Court. Smith’s lawyer argued the Court of Appeals neglected to address an allegedly-problematic episode in which Smith’s original trial judge personally delivered lunch to deliberating jurors without the parties’ knowledge. The government, meanwhile, alleged the notion of “informed consent” reversed the traditional roles of lawyer and client during post-conviction proceedings.

“By requiring ‘informed consent’ from Defendant to waive claims, Defendant, not counsel, is now ‘captain of the ship,'” wrote Matthew S. Holman of the Colorado Attorney General’s Office.

The Supreme Court elected to review the government’s issues and rejected Smith’s petition. The case is People v. Smith.

The justices also narrowly turned down a second appeal implicating the child welfare system.

A Mesa County father, identified as D.W., challenged a finding of child neglect as well as a judge’s directive that he complete the same type of evaluation and treatment given to those convicted of sex offenses. Although D.W.’s neglect case involved allegations of sexual assault, the proceedings were not criminal.

A Court of Appeals panel decided last summer that the trial judge was not wrong to require D.W. to participate in behavioral treatment, but she was wrong to order the specific treatment given to defendants with criminal convictions.

The trial judge then reissued D.W.’s treatment plan with modifications. D.W. appealed a second time.

But the Court of Appeals now wondered whether it had the ability to hear D.W.’s new appeal. His treatment plan was known as a dispositional order. Colorado law deems dispositional orders to be non-final judgments that are appealable when paired with an adjudicatory order – meaning the decision that a child is neglected.

This time, D.W. did not have an adjudicatory order to pair with his appeal of the treatment plan. He argued that his second trip to the appellate court should be viewed as a “continuation of the appeal,” but the court dismissed the case anyway.

On appeal to the Supreme Court, Chief Justice Brian D. Boatright and Justice Richard L. Gabriel indicated they would have heard D.W.’s case to decide whether dismissal is the right outcome when an appellate court orders a judge to change only her treatment plan and a party appeals the plan by itself.

The case is D.W. v. People.