Mr. Robinson contends that his motion to reconsider, filed on November 22, 1999, further tolled the statute of limitations. The district court determined, based on People v. Gresl, 89 P.3d 499, 501 (Colo.Ct.App. 2003), that because no provision of the Colorado criminal procedure rules specifically authorizes a motion to reconsider an order denying a Rule 35(b) motion, Mr. Robinson's motion to reconsider was not a properly filed state post-conviction motion within the meaning of § 2244(d)(2). The district court therefore concluded that the motion to reconsider did not toll the statute of limitations.
Further, to satisfy the requirements of due process, the record as a whole must show that the defendant entered a guilty plea knowingly and voluntarily. People v. Gresl, 89 P.3d 499, 502 (Colo. App. 2003). Before accepting a plea, the trial court must ensure that the defendant was advised of the direct consequences, including the possible sentencing range.
Here, we have concluded the trial court advisement was insufficient, but the record does not disclose whether defendant may have received a full advisement under Crim. P. 5 at his first appearance, or whether he had received other relevant information that would bear on the issue of the waiver. Cf. People v. Gresl, 89 P.3d 499, 502 (Colo.App. 2003) (although the defendant was not advised by the court regarding the range of sentences that could be imposed upon entry of his guilty plea, division concluded the prosecutor's statement at the hearing that the defendant could be sentenced to up to sixteen years in prison for the charge to which he pled guilty compensated for any deficiency in the court's advisement). Although defendant's attorney filed a written waiver with the court which stated that defendant was "fully advised," it is not clear what his attorney actually told defendant, but that can be clarified at the evidentiary hearing.
Nevertheless, to satisfy the requirements of due process, the record as a whole must show that the defendant entered a guilty plea knowingly and voluntarily. People v. Gresl, 89 P.3d 499, 502 (Colo.App. 2003). Before accepting the plea, the trial court must ensure that the defendant was advised of the direct consequences of the plea, including the possible sentencing range.
To satisfy the requirements of due process, the record as a whole must show that the defendant entered his or her guilty plea knowingly and voluntarily. People v. Gresl, 89 P.3d 499, 502 (Colo.App. 2003). Prior to accepting a guilty plea, a trial court must ensure that the defendant was advised of the direct consequences of the plea, including the possible sentencing range. Crim. P. 11(b)(4); People v. Gresl, supra, 89 P.3d at 502.
Thus a court may resolve a claim on the basis that a defendant failed to demonstrate either deficient performance or prejudice. See People v. Sparks, 914 P.2d 544, 547 (Colo. App. 1996) (performance not deficient); People v. Gresl, 89 P.3d 499, 503 (Colo. App. 2003) (no prejudice). ECF No. 7, ex. G at 10-12.
In the latter situation, where a defendant contends that her counsel gave her no information on the issue that forms the basis of her postconviction motion, a court's correct and complete advisement will generally neutralize counsel's allegedly deficient performance. See, e.g.,People v. Gresl, 89 P.3d 499, 502 (Colo.App.2003) (the defendant could not establish prejudice from counsel's failure to advise defendant about applicable sentencing ranges because court advised the defendant of possible range and imposed sentence within that sentencing range); see alsoUnited States v. Gomez–Alvarez, 482 Fed.Appx. 330, 335–36 (10th Cir.2012) (the defendant could not establish prejudice from counsel's failure to advise him of immigration consequences of guilty plea where court advised that guilty plea could result in deportation).¶ 19 But Ms. Morones says that her lawyer, who specializes in immigration law, essentially promised her that, because of the precise nature of the offense, her guilty plea would not affect her immigration case and that she would be “just fine” for purposes of the removal proceedings.
On the contrary, the transcript of the plea hearing does not indicate that the prosecutor or defendant's counsel informed defendant that he could be imprisoned for life if he pled guilty to violating the conditions of his deferred judgment. Cf. People v. Gresl, 89 P.3d 499, 502 (Colo.App.2003) (plea was valid where prosecutor mentioned possible penalty at the beginning of providency hearing). And defendant's counsel later admitted he “did not advise [defendant] on September 8, 2008 prior to his admission of the complaint to revoke his deferred judgment that [defendant] could be sentenced to life in prison if he were not accepted in Community Corrections.”
The rules of criminal procedure do not authorize a motion to reconsider postconviction orders. See People v. Gresl, 89 P.3d 499, 501 (Colo.App. 2003)("No provision of the criminal procedure rules specifically authorizes a motion to reconsider an order denying a Crim. P. 35(b) motion or otherwise provides for reconsideration of such an order."); Janke, 852 P.2d at 1274 (a trial court may not reconsider its order granting Crim. P. 35(c) relief under law of the case doctrine).
Indeed, the Cuyler exception has been applied in several Colorado cases since Justice Scalia noted in dicta in Mickens that, as far as the jurisprudence of the Supreme Court was concerned, the scope of conflicts to which Cuyler applied was "an open question." See, e.g., People v. Chang, 179 P.3d 240, 245 (Colo.App. 2007) (unspecified "ethical" conflict); People v. Kelling, 151 P.3d 650, 657 (Colo.App. 2006) (citing Mickens, 535 U.S. at 170-76, 122 S.Ct. 1237) (alleged conflict arose from defendant's allegation of ineffective assistance of counsel); Hodges, 134 P.3d at 426 (relying on Kenny, 30 P.3d 734, which was decided before Mickens) (alleged conflict based on animosity and lack of communication between defendant and his counsel); People v. Gresl, 89 P.3d 499, 503-04 (Colo.App. 2003); see also People v. Campbell, 58 P.3d 1148, 1156-58 (Colo.App. 2002). More important, the conflict of interest alleged here is not simply one of successive representation in unrelated matters.