A Garfield County judge failed to follow the proper procedure when he effectively forced a criminal defendant to represent himself at trial, prompting the state’s Court of Appeals to reverse the convictions on Thursday.

A jury convicted Tony Lee Bergman Jr. of multiple offenses related to the possession of child pornography. During the three years the case was pending, Bergman had gone through two hired lawyers, each of whom withdrew from representing him. Eventually, Bergman’s second defense lawyer agreed to come back and represent him at trial, once the two had resolved their differences. 

However, District Court Judge John F. Neiley refused to reschedule the trial so the attorney could be present. He decided the case had been awaiting trial long enough and Bergman had engaged in “delaying conduct.” Bergman ultimately stood trial without a lawyer.

A three-judge panel for the Court of Appeals overturned Bergman’s convictions, deciding Neiley had violated Bergman’s right to be represented by the counsel of his choice.

“We agree with Bergman that the district court failed to follow the proper procedures for withdrawal,” wrote Judge Jerry N. Jones in the April 20 opinion.

Following his 2016 arrest, Bergman retained a defense lawyer for approximately one year, until the lawyer announced he would withdraw due to a “breakdown in communications.” Soon after, Bergman hired a second lawyer, Vincent Felletter Jr.

In September 2019, Felletter filed a motion to also withdraw from the case. Bergman had made “a bunch of ethical accusations against me,” Felletter told Neiley. “He has specifically requested that I withdraw.”

The prosecution objected to postponing the trial, which was scheduled for the following month. Neiley told Bergman he could apply for assistance from the public defender’s office, but otherwise, “if they can’t represent you, you’re going to need to shop around for somebody” or else go to trial without an attorney.

The public defender’s office determined Bergman did not qualify for assistance, but Bergman maintained he did not want to represent himself. The prosecution objected to postponing the trial because of Bergman’s “gamesmanship” and Neiley likewise blamed Bergman for an inability to “get along or maintain a viable relationship with his chosen defense counsel.”

In October, shortly before trial, Bergman told the judge Felletter was willing to come back. The two men had talked and resolved their issues, and Bergman had paid Felletter to represent him at trial. Felletter asked the judge to continue the late-October trial to another date so he could accommodate his existing plans and also prepare for the trial.

Neiley refused. Bergman had given up his right to counsel through his “trial-delaying conduct,” the judge found.

On appeal, Bergman challenged Neiley’s assessment of his conduct, arguing there were no facts proving that Bergman was responsible for his lawyers’ withdrawals. He further pointed out that the prosecution had agreed to many of the postponements during the prior three years.

The Colorado Attorney General’s Office disagreed, writing on appeal that Bergman chose to “play a cat and mouse game with the court.”

Siding with Bergman, the Court of Appeals panel identified multiple problems with how Neiley handled the issue:

? According to the procedural rules, a lawyer’s motion to withdraw needs to inform a defendant of his right to object, that a judge would have to approve of the withdrawal and that the defendant has the obligation to find another attorney. Felletter’s motion contained none of those elements.

? Neiley did not know whether Bergman qualified for a public defender at the time he granted the withdrawal.

? Neiley failed to apply the required factors to determine whether Bergman deserved a continuance at the time of Felletter’s withdrawal.

? The judge did not clearly state to Bergman the consequences of Felletter’s withdrawal.

“Thus, the court violated Bergman’s right to counsel of choice, leaving us no choice but to vacate Bergman’s judgment of conviction and remand the case for a new trial,” wrote Jones.

The case is People v. Bergman.