The Colorado Supreme Court signaled last week that it may get involved in an ongoing Denver criminal proceeding in which the prosecution alleges a trial judge sidestepped the clear rules for appointing defense counsel.

At least four of the court’s seven members must agree to intervene in a case outside the typical appellate process.

Clemente Roberts pleaded guilty to second-degree murder in 2019, and he is serving a 38-year prison sentence. Last month, he filed a petition for postconviction relief, alleging he received constitutionally ineffective assistance of counsel.

In contrast to direct appeals of criminal convictions, which usually allege trial- or sentencing-related errors, postconviction relief is available only for specific grounds, such as ineffective assistance of counsel or newly discovered evidence. Under the rules, a trial judge can deny a postconviction petition outright if the defendant is clearly not entitled to relief.

However, if a judge does not deny the motion, they “shall cause a complete copy of said motion” to be sent to the prosecution and, if the defendant has requested counsel, also send a complete copy to the public defender’s office. The appointed attorney may then investigate or supplement claims that have “arguable merit,” and the judge may then hold a hearing.

In Roberts’ case, privately retained lawyers submitted his postconviction motion. However, they simultaneously moved to withdraw, noting their agreement with Roberts was limited to filing the petition. They requested that a public defender be appointed to represent Roberts going forward.

On Dec. 1, District Court Judge Alex C. Myers determined Roberts’ petition potentially had merit. He forwarded the petition to the public defender’s office to “investigate, and add any claims the Public Defender finds to have arguable merit.”

The prosecution asked him to reconsider. Although the district attorney’s office had no objection to a public defender representing Roberts in future filings or at hearings, it did not believe an appointed attorney should be permitted to add claims to those his private attorneys had already identified.

“The logic of the rule is plainly to give pro se (self-represented) defendants who have filed a meritorious petition the opportunity for professional supplementation. To hold otherwise would permit Roberts — and any postconviction petitioner with resources to hire counsel for the initial petition — to file a second set of claims at state expense,” wrote Senior Deputy District Attorney Johanna G. Coats.

Myers stood by his decision. He noted Roberts’ private attorneys had since withdrawn from the case and he “no longer has counsel.” Moreover, he found it problematic if a public defender, after performing their own investigation, could only stick to the claims Roberts’ private counsel originally advanced.

“As with every appointment of new counsel, they will be required to exercise their own independent judgment,” Myers wrote, “determine which issues they wish to pursue from those already raised, and to supplement the petition as they deem appropriate.”

The district attorney’s office then immediately turned to the Supreme Court, arguing the rules did not contemplate giving criminal defendants the opportunity for two different sets of lawyers to file postconviction claims.

“Further, if allowed to stand, the court’s order will create a new form of representation,” wrote Coats. “Defense counsel would like to create a practice in which she can represent defendants a little bit — just enough to get past summary denial — so the defendant is then entitled to file a second set of postconviction claims.”

In a Dec. 12 order, the Supreme Court directed Roberts to respond to the prosecution’s petition. Because the public defender’s office identified a conflict, Roberts is now represented by appointed attorneys through the Office of the Alternate Defense Counsel who, coincidentally, are the same attorneys who filed his original petition.

Justice Melissa Hart did not participate in the order. The Judicial Department has provided little transparency into her unusual leave of absence, which officially began on Oct. 28. Hart has not participated in three consecutive months of oral arguments and three published opinions, and her whereabouts are unclear.

The case is People v. Roberts.