Opinion
23CA1204
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Kenji Jemale Houston, Defendant-Appellant.
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
El Paso County District Court No. 21CR6684 Honorable Catherine Mitchell Helton, Judge
ORDER AFFIRMED
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado, for Defendant-Appellant
OPINION
WELLING, JUDGE
¶ 1 Defendant, Kenji Jemale Houston, appeals the district court's order denying his Crim. P. 32(d) motion to withdraw his guilty plea. We affirm.
I. Background
¶ 2 The prosecution charged Houston with second degree assault by strangulation and violation of a protection order. The charges were based on a domestic violence incident involving Houston and his ex-girlfriend. The ex-girlfriend informed responding police officers that Houston had threatened to beat her and had placed both hands around her neck, restricting her breathing.
¶ 3 In exchange for dismissal of the violation of protection order charge, Houston agreed to plead guilty to second degree assault by strangulation. Among other things, the parties agreed to a sentence of either domestic violence (DV) court or five years in the custody of the Department of Corrections (DOC). After accepting Houston's plea, the district court ordered a presentence investigation and explained that the next step for Houston was to undergo a screening process "to see if you are acceptable for [DV] Court."
¶ 4 Houston was rejected from DV court. The DV court screening summary contained a list of checkboxes titled "Legal Ineligibility," and a box labeled "[c]riminal history/charges/convictions" was checked. An accompanying explanation indicated that Houston's criminal history made him ineligible for DV court because he had "a more substantial history of non-DV general criminality."
¶ 5 Houston asked for new counsel to be appointed so that he could pursue Crim. P. 32(d) relief. The district court granted the request, defense counsel was appointed, and Houston filed a timely motion to withdraw his guilty plea pursuant to Rule 32(d). The motion alleged that the primary reason Houston accepted the plea deal was the "possibility" that he would be sentenced to DV court. He should be permitted to withdraw his plea, he argued, because it was based on plea counsel's advice that he would be a "good candidate" for DV court. Counsel's advice was, in turn, based on "conversations [he] had with the District Attorney and the Public Defender liaison for [DV] [c]ourt." After the plea, Houston alleged, the DV court program rejected him because of "static facts" known to plea counsel (specifically, his "substantial history of non-DV general criminality"), which made him ineligible for the program.
¶ 6 After a hearing, the district court denied the motion, finding that Houston was always aware that he might be rejected from DV court. The court further found that (1) Houston knew that neither of the agreed-upon sentencing options was "guaranteed"; (2) it was "not atypical" that "an attorney may believe somebody's a good candidate for a problem-solving court program, and then ultimately that person is rejected from . . . whatever the problem-solving court is"; and (3) Houston was well aware that he would need to pass through a screening process for DV court, and "ultimately it would be up to DV Court whether he was accepted."
¶ 7 The district court sentenced Houston to five years in the custody of the DOC.
II. Discussion
¶ 8 Houston contends that the district court erred by denying his Crim. P. 32(d) motion to withdraw his guilty plea. We aren't persuaded.
A. Relevant Law and Standard of Review
¶ 9 Crim. P. 32(d) permits a defendant to file a motion to withdraw a guilty plea before sentence is imposed. Kazadi v. People, 2012 CO 73, ¶ 14. To warrant withdrawal, however, a defendant must establish a "fair and just reason" for it. Id. (quoting People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988)).
¶ 10 In determining whether a defendant has met the burden of establishing such a reason, a district court should consider factors including whether (1) the defendant promptly moved to withdraw the guilty plea; (2) the prosecution would be prejudiced by the withdrawal of the guilty plea; and (3) the defendant has "shown that 'justice will be subverted' if the motion is denied." Crumb v. People, 230 P.3d 726, 730 (Colo. 2010) (quoting Maes v. People, 155 Colo. 570, 575, 396 P.2d 457, 459 (1964)). Justice may be subverted if, among other reasons, there is ineffective assistance of counsel or a plea of guilty was entered by mistake. Kazadi, ¶ 14.
¶ 11 We won't overturn the denial of a Crim. P. 32(d) motion absent an abuse of discretion. Id. at ¶ 15. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or where it applies an incorrect legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12.
B. Analysis
¶ 12 As an initial matter, we reject Houston's assertion that the district court erred by "overlooking" the fact that his motion was prompt and the prosecution wouldn't be prejudiced by granting relief. We are hard pressed to find error solely based on the court's failure to expressly consider those two factors where, as here, the parties focused exclusively on whether justice would be subverted if the motion was denied. Moreover, our supreme court and numerous divisions of this court have emphasized that there must be some showing that justice will be subverted "[t]o warrant the exercise of discretion favorable to a defendant concerning a change of plea." Maes, 155 Colo. at 575, 396 P.2d at 459; see also Kazadi, ¶ 14.
¶ 13 Houston claims that plea counsel provided constitutionally deficient representation because his advice - that Houston was a "good candidate" for DV court - fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 690 (1984) (to succeed on an ineffective assistance of counsel claim, a defendant must show that his counsel's performance was constitutionally deficient, and that the deficient performance prejudiced him).
¶ 14 At the hearing on Houston's Crim. P. 32(d) motion, defense counsel didn't call any witnesses. Instead, the parties agreed to proceed straight to argument. They likewise agreed that plea counsel's advice regarding DV court was based on conversations he had had with the DV court liaison in his office. Houston doesn't explain why it was deficient performance for plea counsel to rely on the DV court liaison or why this reliance fell outside the range of competence demanded of attorneys in criminal cases. Indeed, at the hearing on Houston's motion to withdraw his plea, Rule 32(d) counsel stated, "I'm not blaming [plea counsel] for this. I'm actually putting more blame on the public defender liaison in this that told him that." Thus, Houston falls short of alleging that plea counsel acted in a constitutionally deficient manner by relying on the DV court liaison.
¶ 15 Nonetheless, Houston implies that plea counsel performed deficiently because he should have known that DV court was "not an option at all" since the DV court screening document stated that Houston's "substantial history of non-DV general criminality" constituted a "legal ineligibility." He likens his situation to cases in which a defendant is promised the option of a sentence for which he is in fact ineligible as a matter of law. See, e.g., Chippewa, 751 P.2d at 611 (defendant established a fair and just reason for withdrawal of his guilty plea where his plea contemplated, and he was specifically advised, that he could receive a sentence within the presumptive range when in fact a sentence in the aggravated range was mandated because of his parole status).
¶ 16 But nothing in the record indicates the mere presence of a criminal history renders a defendant legally ineligible for DV court. Instead, the record indicates that some combination of "[c]riminal history/charges/convictions" might constitute a legal ineligibility for DV court. For example, the prosecutor stated that "we can't look into the minds of the people that are screening for [DV] Court," and there are times when "they make exemptions" notwithstanding an extensive criminal history. That is, the record supports a determination that the DV court has discretion to determine what significance to place on a candidate's criminal history. And Houston didn't present any testimony indicating the contrary. Without such evidence, we can't conclude that plea counsel performed deficiently. And for the same reasons, we aren't persuaded by Houston's claim that he made a reasonable "mistake" about his sentencing eligibility.
¶ 17 Because the district court's decision to deny Rule 32(d) relief wasn't manifestly arbitrary, unreasonable, or unfair, it didn't abuse its discretion.
III. Disposition
¶ 18 The order is affirmed.
JUDGE SCHOCK and JUDGE HAWTHORNE [*] concur.
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023.