A handwritten note stuck to an old case file suggests a convicted man’s defense attorneys failed to tell him about a potential plea deal from the prosecution, Colorado’s second-highest court determined on Thursday.

Consequently, a three-judge panel for the Court of Appeals ordered a Denver judge to hold a hearing on Kenneth Fritz’s claim that he received ineffective assistance of counsel at the time of his 2010 jury trial.

Fritz is serving a 68-year sentence after jurors found him guilty of assault, attempted sexual assault and kidnapping. Fritz maintained he was innocent.

After the Court of Appeals initially upheld his conviction, Fritz filed a motion in 2019 for postconviction relief. Among other things, he alleged that two defense attorneys who represented him at various points before trial, Phelicia Kossie-Butler and George Drake, did not tell him the district attorney’s office allegedly offered a deal of “double-digit to 20 years” in prison if he pleaded guilty.

Fritz claimed he would have taken the offer had he known about it, as he was facing many more years behind bars if convicted at trial.

In 2021, District Court Judge Kandace C. Gerdes denied Fritz’s motion without a hearing, finding no indication Fritz received constitutionally deficient representation.

“Further, the only record of any plea offer is a hand-written note in the prosecution’s file. From this evidence, the Court cannot conclude trial counsels’ performance was ineffective, nor whether a plea bargain was even offered by the prosecution,” she wrote.

However, the Court of Appeals panel saw the case differently.

Attached to paperwork from the time of Fritz’s trial was a Post-it note that read, “Offer made 8/20/09: F5 att SA 10 – lifetime sup” and “1° ass 32.” The writing apparently referred to a felony attempted sex assault plea with 10 years to life of supervision and first-degree assault with a 32-year sentence.

Judge Lino S. Lipinsky de Orlov, in the panel’s April 20 opinion, noted Fritz’s allegations and the presence of the note suggested there was at least one, and possibly more than one, plea offer Fritz did not learn about until after trial. Further, the prosecution on appeal acknowledged there was nothing to suggest Fritz’s account was incorrect.

“Based on these allegations, there is at least a factual dispute as to which of the plea offers the prosecution made, if any, and whether the corresponding sentence would have been less severe than the sentence Fritz received,” Lipinsky wrote.

Under U.S. Supreme Court precedent, a defendant who claims they received ineffective assistance of counsel must show their lawyer’s performance fell below an objective standard of reasonableness and, if not for their errors, the outcome would have been different. Because failing to tell a defendant about a plea offer is unreasonable and Fritz said he would have accepted the offer had he know about it, the panel agreed a hearing is required to weigh the evidence.

Finally, the appellate judges rejected the idea that Fritz’s insistence that he was innocent meant he would not have taken the plea deal anyway, as people may choose to plead guilty for a variety of reasons.

The case is People v. Fritz.