While unrepresented defendants in postconviction proceedings are permitted to have a court-appointed attorney investigate and augment their claims, that is not the case when a private lawyer authors the original petition, the Colorado Supreme Court decided on Monday.

In contrast to direct appeals of criminal convictions, which usually allege trial- or sentencing-related errors, postconviction relief is available only on 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 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 the case of Clemente Roberts, who alleges he received constitutionally ineffective assistance of counsel for his Denver murder prosecution, Roberts’ family hired lawyers to submit his postconviction motion. However, the attorneys 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 He noted Roberts’ private attorneys had since withdrawn from the case, and he “no longer has counsel.”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 immediately turned to the Supreme Court, arguing that the rules did not contemplate allowing criminal defendants to have two different sets of lawyers 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.”

Because the public defender identified a conflict of interest, Roberts received court-appointed representation through the Office of the Alternate Defense Counsel. The lawyers are, coincidentally, the same attorneys who filed his original petition. They informed the Supreme Court that they had no intention of adding claims to his petition.

Justice Brian D. Boatright, in the June 15 opinion, noted the existence of other cases raising the same procedural question, and it was important for the Supreme Court to provide an answer.

The court’s majority found the rules to be ambiguous, with both the defense and prosecution interpretations seeming reasonable. But by looking to the “purpose and context underlying the rule,” wrote Boatright, the prosecution’s view was correct.

It is “of no moment whether a represented defendant had counsel for a limited purpose or more comprehensive representation. Either way, Roberts had counsel file the (postconviction) motion,” wrote Boatright. “Accordingly, we hold that because Roberts’s private attorney filed the (postconviction) motion on his behalf … he was not entitled to have the public defender or other court-appointed counsel supplement the motion.”

Justice Carlos A. Samour Jr. wrote separately to say that he did not find the rule ambiguous, and the language clearly supported the prosecution’s view. He was mystified by Boatright’s assertion that the majority needed to look beyond the rule’s wording to determine its meaning. He did not see where that analysis occurred in the opinion.

“Nowhere does the majority discuss the rule’s history or explain how the rule’s purpose removes the perceived ambiguity — nor can it, because there is no ambiguity,” Samour wrote. “Indeed, neither party argued ambiguity in this case; the majority ventured down that path all on its own.”

The case is People v. Roberts.