An Arapahoe County defendant who is serving a life sentence for a 20-year-old murder could receive a new trial because his lawyer withheld key details that affected his decision to decline a plea deal, Colorado’s second-highest court ruled last week.

There was no dispute that Michael Evans did not shoot the victim during an October 2005 burglary. Evans denied being present, and the only witness who could have testified to Evans’ participation refused to do so. The prosecution argued that Evans could be held liable for the victim’s death simply by being complicit in the burglary, but jurors’ questions illustrated their struggle with finding Evans guilty.

In the end, the jury convicted Evans of burglary and felony murder, in which a defendant is guilty if he participates in certain crimes, such as robbery or sexual assault, and someone dies as a result. As the law existed at the time, a judge sentenced Evans to mandatory life in prison.

Years later, Evans sought postconviction relief on the grounds that his trial lawyers were constitutionally ineffective for failing to explain how a tentative plea offer from the prosecution of 27 years would have resulted in less time behind bars when accounting for parole and earned time. Had he known, said Evans, “One million percent I would have accepted that offer.”

A three-judge Court of Appeals panel agreed that withholding that information could have been constitutionally unreasonable and could have harmed Evans. The panel rejected the idea that the tentative, or “soft,” nature of the plea offer did not matter as much as a firm commitment from the prosecution.

“If the prosecution floated a soft offer of twenty-seven years to make sure the parties were on the same page, and Evans expressed an interest in accepting the offer, it seems likely that a firm offer would have been forthcoming,” wrote Judge Elizabeth L. Harris in the April 30 opinion. “Here, the disparity was indisputably substantial: twenty-seven years (not accounting for parole eligibility) versus life in prison without the possibility of parole.”

In 2021, Evans filed a petition for postconviction relief. Among other things, he alleged that his trial lawyers unreasonably failed to explain that he could be found guilty of felony murder if the jury believed he was complicit.

Moreover, his lawyers neglected to mention that the prosecution’s soft plea offer of 27 years, which Evans rejected, would have resulted in less time served in prison based on his parole eligibility. Because Evans had previous convictions as a juvenile where he served the entirety of his sentences, he allegedly had no independent understanding of early release.

In December 2022, District Court Judge Ryan Stuart dismissed Evans’ complicity-related claim, reasoning that the felony murder law put him on notice about his potential criminal exposure. However, Stuart agreed that Evans could have a valid claim if his trial lawyers failed to explain that Evans likely would not serve all 27 years in prison under the plea offer.

After a hearing in which one of Evans’ trial lawyers, one of the trial prosecutors, and an expert witness testified, District Court Judge Theresa Slade denied his request for relief.

Even though there was conflicting testimony, Slade was “convinced” that the prosecution made a soft plea offer. Yet, she believed it was meaningful that no firm plea deal materialized.

“Because there was no plea bargain offered to Defendant, trial counsel was not ineffective for not providing Defendant information about something that did not exist,” Slade wrote. Consequently, “the Defendant cannot suffer a detriment from a decision he was not empowered to make, informed or not.”

Upon review, the Court of Appeals panel concluded her focus on the existence of a firm offer was incorrect.

Drawing from federal court decisions, Harris explained that a defense lawyer can be constitutionally ineffective if their performance prevented the prosecution from extending a firm offer. Evans had essentially alleged that his incomplete understanding of the circumstances precluded that offer.

In Slade’s view, “because only a firm offer has constitutional significance, counsel’s performance during plea negotiations was constitutionally irrelevant until such time as a firm offer was extended,” Harris wrote. “That reasoning cannot be squared with well-settled law.”

She added that the evidence indicated Evans would have taken the plea offer had he known the particulars. Moreover, the fact that the prosecution granted a 25-year plea deal to the actual shooter suggested that Evans could have reasonably expected a similar, firm offer.

The panel returned Evans’ case to the trial court to decide whether, if not for his lawyers’ actions, there would have likely been a firm plea deal in his case, resulting in a less-severe prison sentence.

The panel also reinstated Evans’ claim that his attorneys were ineffective for failing to explain the concept of complicity. Harris wrote that Stuart had incorrectly reasoned that Evans was on notice about the requirements of felony murder.

“According to Evans, the lawyer’s failure to explain his exposure under that alternative theory of liability meant that he overestimated his chances at trial and, as a result, rejected the soft offer,” she wrote. “Evans’s allegations are sufficient to warrant a hearing.”

The case is People v. Evans.