Colorado’s second-highest court rejected a defendant’s argument on Thursday that a judge improperly heard about a potential conflict between himself and his lawyer right before sentencing, and the man’s reaction could have “tainted” the sentencing decision.

In September 2023, Anthony Palermo pleaded guilty in Huerfano County to harassment and assault. Before his sentencing hearing, Palermo filed a motion asking for a new lawyer and alleging his public defender coerced him into the plea.

The day of the sentencing hearing, Chief Judge John “Clay” McKisson held a “Bergerud hearing.” Named for the 2010 Colorado Supreme Court decision People v. Bergerud, the purpose is to allow a judge to assess whether a conflict exists between a defendant and his court-appointed lawyer. The prosecution is excluded from the hearing because it involves the airing of confidential attorney-client information.

McKisson heard from Palermo and his attorney and concluded Palermo was experiencing “some buyer’s remorse,” but that there was no conflict.

“I think that’s a really unfair and unjust decision,” said Palermo. “I think that you’re disgusting for that, personally.”

McKisson then proceeded to sentencing. He gave Palermo 15 years in prison, which was one year below the maximum in the plea agreement.

On appeal, Palermo argued different judges should have presided over the conflict hearing and the sentencing.

“This keeps the information revealed at the hearing from tainting the sentencing court’s view of the Defendant,” wrote attorney Rachel C. Funez. Handling the Bergerud hearing “could have tainted the court’s sentencing decision, because Palermo was upset that the court did not find a conflict and appoint new counsel, and his reaction may have tainted the judge’s view of him.”

The “fact that a judge may learn some information about a defendant during a hearing on an allegation of conflict generally does not preclude the court from subsequently sentencing that defendant,” responded Assistant Attorney General Brenna A. Brackett.

A three-judge Court of Appeals panel acknowledged that, in some jurisdictions around the state, a different judge routinely is brought in to handle conflict hearings. Judge Pax L. Moultrie noted the Supreme Court’s Bergerud decision was silent about the practice.

“Nothing in Bergerud prohibits this, and we don’t mean to suggest that a Bergerud hearing must be heard by the judge presiding over the case,” she wrote in the March 12 opinion.

Judges should recuse themselves if their impartiality could be reasonably questioned, Moultrie continued.

“But, generally, what a judge learns in their judicial capacity alone isn’t sufficient to support a finding of bias that requires recusal,” she wrote.

Because Palermo failed to allege McKisson was biased against him for any reason other than his handling of the conflict hearing, the appellate panel rejected his challenge.

The case is People v. Palermo.