Downey v. People

Summary

The Colorado Supreme Court considered whether a defendant proceeding pro se could assert ineffective assistance of counsel against appointed advisory appellate counsel. The court held that such a claim is generally unavailable when counsel acts only in an advisory capacity, but may be available if advisory counsel assumes a broader role and exercises control appropriate for legal representation. Deferring to the trial court’s finding that counsel acted solely as advisory counsel, the court affirmed the judgment of the court of appeals.

Holdings

1. A defendant who knowingly and voluntarily waives the right to counsel and proceeds pro se ordinarily may not maintain a constitutional ineffective-assistance claim against advisory counsel because the defendant has no constitutional right to advisory counsel.
2. A defendant may assert ineffective assistance against advisory counsel if advisory counsel exceeds the advisory role and assumes a broader role involving a degree of control appropriate for traditional legal representation; the claim is limited to the duties assigned to or assumed by counsel.
3. Downey could not maintain an ineffective-assistance claim because the trial court's supported factual finding established that his appellate attorney acted solely as advisory counsel.

Questions Presented

1. Whether a defendant who elects self-representation may assert an ineffective-assistance claim against advisory appellate counsel.
2. Whether advisory counsel becomes subject to an ineffective-assistance claim when counsel assumes a broader role and exercises a degree of control appropriate for traditional legal representation.
3. Whether Downey's advisory appellate counsel exceeded the limited advisory role in this case.

Disposition

affirmed