4B64FDC0223703DF8725838B00729563 Hearing Summary

The meeting was called to order.  A quorum was present. 

Senator Cooke, bill sponsor, explained SB19-026 which prohibits a defendant from bringing a second or subsequent claim for post-conviction remedy on the grounds of ineffective assistance of counsel in a prior post-conviction proceeding.  Senator Cooke noted that post-conviction claims are also known as 35(c) claims.  These claims allow defendants to raise certain concerns in the trial court after they have been convicted and exhausted all of their direct appeal rights.  Senator Cooke reported they are most often used for ineffective counsel or the finding of new evidence.  Senator Cooke discussed the time and resources spent on multiple 35(c) claims.  The Alternate Defense Counsel (ADC) budget was discussed. 

Mr. Bob Russell, representing the Denver District Attorney's Office and the Colorado District Attorneys' Council, spoke in favor of the bill.  He provided a brief background of his experience with 35(c) claims.  He noted that it is difficult to determine the number of 35(c) motions because they are not delineated from other motions. He explained that 35(c) motions consume an inordinate amount of resources, especially the multiple, repetitive claims.  He answered questions about the constitutional right of post-conviction counsel and standards of competence for attorneys. 

Mr. Russell continued explaining the bill and discussed the need for a statute of limitations with 35(c) claims.  He discussed the difficulties in defending a case after a certain amount of time has passed.  He answered questions from the committee about statutes of limitations and cases where a judge allocates cost against a defendant. 

The committee discussed the judge's role in 35(c) motions and putting limitations on a defendant's right to a new trial.

Karen Taylor and Jason Middleton, representing the Office of State Public Defender, testified in opposition to the bill. Ms. Taylor explained that rules have already been established for 35(c) motions, and there is no need to change the current process. She expressed concerns that the bill limits a defendant's right to file subsequent motions and mentioned due process issues.  She further noted that the number of 35(c) motions in her office is low. 

Mr. Middleton discussed the discovery and attorney client privilege portions of the bill and pointed out that current law already governs these areas.  He also expressed concerns that provisions in the bill disproportionately impact  indigent and incarcerated individuals and cautioned that the bill is too narrow in scope.   

Mr. Middleton and Ms. Taylor answered questions from the committee about ineffective counsel and other grievance procedures.

Ann Roan, representing the Colorado Criminal Defense Bar, testified in opposition to the bill.  She expressed constitutional concerns with the bill and also testified that the bill creates two tiers of justice for the indigent and others. She also discussed disparities in the bill concerning file retention and attorney costs. 

Gail Johnson, representing the Colorado Criminal Defense Bar, spoke in opposition to the bill. She explained how provisions in the bill would deny opportunities to file 35(c) motions. 

Lindy Frolich, representing ADC, spoke in opposition to the bill.  She reported that ADC handles the vast majority of post-conviction motions and provided related statistics.  Ms. Frolich also reported that the number of post conviction motions are not rising exponentially and that most do not advance in the judicial system. She expressed concerns that the bill would unfairly impact juveniles with adult felony convictions.

Bruce Brown, District Attorney in the 5th Judicial District, spoke in favor of the bill.  He discussed how 35(c) motions adversely affect victims and that a disproportionate amount of funds are required for these cases. 

Jim Bullock, District Attorney in the 16th Judicial District, spoke in favor of the bill.  He discussed the number of 35(c) cases in the 16th Judicial District and the related resources needed.  He shared his concerns about invalid claims, as well as ineffective counsel and victims. 

Rich Orman, Senior District Attorney in the 18th Judicial District, testified in support of the bill.  He discussed his experience working on these cases as a prosecutor and expressed concerns about victims. 

Senator Cooke made closing remarks and stressed that district attorneys need some relief with post-conviction motions.  He also noted that there needs to be a better response to claims of ineffective counsel. 

Committee members stated reasons for their support of or opposition to the bill.