Background
Christopher Rogers was charged in November 2021 with three counts of distributing drugs to a minor and two counts of sexual assault. Over the course of the proceedings, four different attorneys represented him, and the district court ordered four separate competency evaluations pursuant to Colorado’s competency statute, section 16-8.5-103. Each evaluator concluded that Rogers was competent to proceed. The fourth evaluation was conducted by the same evaluator who had performed the first; that evaluator noted that Rogers’s thought processes appeared coherent, his behavior was appropriate, and testing revealed a very high probability that he was feigning psychiatric or cognitive symptoms.
Shortly after the fourth evaluation was filed, Rogers’s third attorney, Scott Reisch, moved to withdraw, citing irreconcilable differences and Rogers’s desire to discharge him. The following week, the district court held a competency review hearing at which Reisch appeared on Rogers’s behalf. When neither party objected to the fourth evaluation, the court entered a final determination of competency. The court then turned to Reisch’s motion to withdraw and, after conducting a hearing under People v. Bergerud, found a total breakdown of communication between Rogers and Reisch and agreed to appoint substitute counsel. Trial counsel represented Rogers through trial and sentencing without raising any concern about competency. A jury acquitted Rogers of the drug charges but convicted him of the sexual assault charges.
The Court’s Holding
The Colorado Court of Appeals, Division IV, dismissed the appeal. Writing for the division, Judge Harris concluded that a pending motion to withdraw does not alone establish a denial of counsel, and that the narrow circumstances described in United States v. Cronic, 466 U.S. 648 (1984), under which prejudice is presumed, do not apply to the facts of this case. The court held that Rogers’s claim arising from counsel’s failure to object to the fourth competency evaluation must be analyzed as an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984), which requires a showing of both deficient performance and prejudice.
The court rejected Rogers’s premise that the mere filing of a motion to withdraw created an ethical vise that prevented Reisch from objecting to the evaluation. Under Crim. P. 44(d)(1), defense counsel may withdraw only upon order of the court, and unless and until a motion to withdraw is granted, counsel’s representation continues through the termination of trial court proceedings. The court reasoned that Rogers’s position was untenable because it would effectively give the lawyer, not the court, the authority to decide the motion, and would give rise to a potential retrospective Sixth Amendment violation in every case involving a request for substitute counsel.
The court also concluded that this case does not present one of the narrow circumstances in which Cronic’s presumption of prejudice applies. Under Bell v. Cone, 535 U.S. 685 (2002), to demonstrate the absence of meaningful adversarial testing, a defendant must show that defense counsel failed to oppose the prosecution throughout the proceedings as a whole, not at specific points. Here, Reisch did oppose the prosecution’s attempt to defend a competency determination by raising the issue and requesting a fourth evaluation. His failure to object to that evaluation or request yet another was a specific attorney error subject to Strickland’s performance and prejudice test. The court distinguished United States v. Collins, 430 F.3d 1260 (10th Cir. 2005), on which Rogers primarily relied, noting that in Collins defense counsel refused to represent the defendant at the hearing, and that even Collins essentially applied a Strickland prejudice analysis.
Key Takeaways
- A pending motion to withdraw does not alone establish a denial of counsel under the Sixth Amendment; counsel’s obligation to fully represent the client continues unless and until the court grants the motion.
- A claim that counsel failed to object to a competency evaluation is an ineffective assistance of counsel claim governed by Strickland’s two-part test, not a constructive denial of counsel triggering presumed prejudice under Cronic.
- Ineffective assistance of counsel claims generally may not be raised on direct appeal in criminal cases; they should be raised in postconviction proceedings where a factual record can be developed.
- To establish a complete failure of adversarial testing under Cronic, a defendant must show counsel failed to oppose the prosecution throughout the proceedings as a whole, not merely at specific points.
Why It Matters
This decision clarifies the boundary between constructive denial of counsel claims subject to Cronic’s presumption of prejudice and ordinary ineffective assistance claims subject to Strickland’s requirement of showing both deficient performance and prejudice. Attorneys practicing in Colorado should note that filing a motion to withdraw does not suspend their ethical obligation to provide competent representation, and that clients cannot manufacture a Sixth Amendment violation by seeking substitute counsel.
The ruling also reinforces the procedural requirement that ineffective assistance claims be raised in postconviction proceedings rather than on direct appeal, ensuring that such claims are supported by a developed factual record. Defense attorneys should preserve potential ineffective assistance claims for postconviction motions and should not rely on the pendency of a withdrawal motion as a basis for claiming constructive denial of counsel.