Colorado’s second-highest court clarified on Thursday that trial judges who are deciding whether to grant relief to convicted defendants may rely on the materials attached to, or referenced in, the parties’ arguments.

In contrast to direct appeals of criminal convictions, which usually allege errors before trial, at trial or at sentencing, defendants also have the opportunity to seek postconviction relief directly in the trial courts. That pathway, however, is only available for specific reasons, like constitutionally ineffective assistance of counsel or newly discovered evidence — assertions typically requiring some investigation.

Initially, judges may deny a defendant’s petition outright if it clearly has no merit. However, if at least one claim is meritorious, the judge will forward the petition to the public defender’s office, if the defendant has requested a lawyer. The defense and the prosecution will then submit briefing on the defendant’s claims.

Afterward, the judge will hold an evidentiary hearing unless they can make a ruling “based on the pleadings.”

But what does that mean?

Kenny Lee Martinez appealed a Denver judge’s order finding he was not entitled to postconviction relief from his assault, child abuse and related convictions. The judge relied on transcripts and exhibits from trial, which Martinez argued fell outside “the pleadings.”

A three-judge Court of Appeals panel determined that judges have to be able to rely on documentation from the case to some degree.

“First, Martinez’s reading of the rule would allow litigants, intentionally or not, to assert facts in their briefs that are not supported by the record, given the court’s inability to review the record itself to verify the factual assertion,” wrote Judge Ted C. Tow III in the Feb. 12 opinion. He added that one such discrepancy had surfaced in Martinez’s underlying proceedings, which was resolved when the prosecution attached the relevant evidence.

“If, after thoughtful briefing from counsel on both sides of the issue, it is clear from the pleadings (and any reference to the record) that the defendant will be unable to prevail at a hearing,” Tow continued, “it would be absurd to require expending the parties’ and the court’s resources to conduct a futile exercise of holding a hearing.”

However, the appellate panel acknowledged it was unclear whether the rule is intended to focus trial judges on the issues raised by the parties, or whether the rule, in context, simply requires judges to set a timely hearing unless they can resolve the issue without one.

“We leave these questions for another day,” wrote Tow, concluding the trial judge properly relied on the attached or referenced materials when deciding Martinez’s petition.

Defense attorneys who specialize in postconviction cases held differing views about the panel’s interpretation.

“This opinion does not seem to change anything in the way a decision to grant or deny an evidentiary hearing is made,” said Antony Noble, adding that he would be comfortable going slightly further. “A court should be able to review the entire record of the case, so long as it only denies an evidentiary hearing if the record clearly establishes that the motion is without merit. A court should not rely on materials outside the case without giving the defendant the opportunity to challenge those materials.”

“My concern is that an expansive review unauthorized by (the rule) risks inappropriately denying defendants a meaningful opportunity to demonstrate their postconviction claim at an indispensable evidentiary hearing,” countered Gregory Lansky.

Ramsey Lama, a former trial judge, said that the Court of Appeals’ standard could conceivably benefit defendants as well as the prosecution.

“As someone who now does this work, I think it’s helpful for the petitioner because you can make a good record in support of your clients and attach things that can become part of the pleading for the court to consider,” he said. “You’re the one with the burden trying to establish allegations that, if true, would entitle you to a hearing. So, I think allowing the court to look at your attachments and the exhibits as part of the pleadings gives you the opportunity to make a better record.”

The case is People v. Martinez.