No. 93CA1510Colorado Court of Appeals.
February 20, 1997 Petitions for Rehearing DENIED March 27, 1997 Petition for Writ of Certiorari GRANTED November 3, 1997. Cross-Petition for Writ of Certiorari DENIED.
Appeal from the District Court of the City and County of Denver Honorable Paul A. Markson, Judge No. 92CR2695
ORDER AFFIRMED, JUDGMENT VACATED, AND CAUSE REMANDED WITH DIRECTIONS
Page 504
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nora V. Kelly, Denver, Colorado, for Defendant-Appellant
EN BANC.
Division I
Jones, J., concurs
Metzger, J., concurs in part and dissents in part
Opinion by JUDGE CRISWELL
[1] Defendant, Rex C. Rhorer, appeals the judgment of conviction of second degree burglary and the district court’s later order denying his Crim. P. 35(c) motion. We affirm the order denying the Crim. P. 35(c) motion, vacate the conviction of burglary, and remand with directions to enter a judgment of conviction of criminal trespass and resentence defendant for that offense. [2] Defendant was charged with and tried for second degree burglary, menacing, and two counts of being an habitual criminal. According to the testimony of the victim, who was defendant’s former girlfriend, defendant broke into her bedroom through a window while she was sleeping. At that time, a “no contact” court order of the Denver County Court, issued pursuant to a municipal ordinance, was in effect. [3] In the elemental instruction on the burglary charge, the jurors were told that, in order to convict defendant, they had to find that, at the time of the entry, he had the intent of committing either the crime of assault, of menacing, or of violating the no-contact order. With respect to the intent to violate the no-contact order, they were instructed that it is unlawful for a person “to commit an [i.e.,Page 505
any] act, which is prohibited by any court pursuant to valid order . . . .”
[4] The jurors were provided with a special verdict form which listed each of the three possible specific intents that defendant was charged with possessing, i.e., to violate the court order, to assault, or to menace, and they were instructed that they were to check “one or more of the appropriate” items. On this verdict form, the jurors checked only the item with respect to the intent to violate the court order, and they left the other two items blank. Defendant asserts and the Attorney General agrees that, under this instruction, the jurors’ failure to check the other two items constitutes a finding that the prosecution failed to prove that defendant possessed either of the other two intents. In addition, defendant was found not guilty of the charge of menacing. [5] After receiving this verdict and as a part of a plea agreement, defendant pleaded guilty to the two habitual criminal counts. [6] While this appeal was pending, the district court, on limited remand, denied defendant’s Crim. P. 35(c) motion in which he claimed that he had received ineffective assistance of trial counsel because of a conflict of interest. Defendant appeals both from the judgment of conviction and from this later order. I.
[7] Because of the nature of defendant’s claims, we must first consider the trial court’s denial of defendant’s Crim. P. 35(c) motion. Defendant argues that he was denied effective assistance of counsel because of a conflict of interest that arose when the public defender representing defendant at the trial here alleged that defendant had received ineffective assistance in the proceedings leading to his previous convictions, when he was also represented by a public defender, and that his previous attorneys had failed to challenge one of the convictions when there was an opportunity to do so. We are not persuaded.
(Colo. 1983). [12] Reading defendant’s one sentence alternative allegation in his brief liberally, we construe it to be an assertion that the previous public defenders’ failure to make a timely attack on the first conviction amounted to ineffective assistance of counsel, and that such representational inadequacy constituted justifiable excuse or excusable neglect to extend the time bar created by § 16-5-402.
Page 506
However, defendant provided no description of any basis upon which the prior conviction could have been attacked. Hence, no finding of ineffective assistance is sustainable. See People v. Boehmer, 872 P.2d 1320 (Colo.App. 1993) (mere failure to challenge a prior conviction does not, by itself, establish ineffective assistance of counsel).
[13] Similarly, defendant claimed he was deprived of effective assistance by the public defenders who previously represented him, but he alleged no facts to support this allegation. Indeed, this issue was not addressed in his supporting brief. A naked accusation of ineffective assistance of counsel, without a description of specific facts, is an insufficient basis for a collateral attack upon a prior conviction. DeBaca v. District Court, 163 Colo. 516, 431 P.2d 763 (1967). [14] To make the requisite showing of an actual conflict of interest, the defendant must present at least an arguable basis for the underlying ineffective assistance of counsel challenges. See People v. Wood, 844 P.2d 1299 (Colo.App. 1992) (no conflict of interest between first and second attorney shown when there was no evidence that the first attorney committed error in representation and second attorney failed to advise him of the nonexistent error). Otherwise, any conflict is, at best, a potential one. [15] In People v. Castro, supra, the case relied upon by defendant, the public defender was placed in a situation inherently productive of divided loyalty: the simultaneous representation of a defendant in a criminal charge and the District Attorney in a challenge to a petition to recall him from office. There, the court found it was impossible to assess the impact of the conflict on the attorney’s tactics and decisions. [16] Here, however, the record is devoid of any basis that the public defender might have had to claim that previous counsel were ineffective. And, there is no indication that the public defender lacked any zealousness in pursuing defendant’s claims. Accordingly, we reject defendant’s contention that trial counsel labored under an actual conflict of interest.II.
[17] Defendant next contends that his conviction of second degree burglary must be reversed because a violation of the no-contact order issued by the county court is not a crime. Given the specific circumstances here, we agree.
(1975).
Page 507
[22] Finally, this court order notified defendant that its violation would be “a crime pursuant to D.R.M.C. [Denver Revised Municipal Code] 38-44 which is punishable up to 180 days jail and $999 fine.” Again, the People did not produce a copy of the ordinance referred to, but both the parties and the trial court accepted this notice as an accurate description of the ordinance’s effect. We will do likewise. [23] Both in the trial court and before us, the People have argued that the violation of a municipal ordinance is a “crime” for purposes of the burglary statute, particularly if, as here, an offender can be subjected to a fine and incarceration for such violation. And, the trial court concluded that, because the municipal ordinance referred to in the no-contact order made it a “crime” to violate that order, such violation would also constitute a predicate crime under the burglary statute. [24] We disagree with this conclusion. [25] More than 100 years ago, our supreme court determined that, because a municipal ordinance is not a “public law,” its violation is not a crime. City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1 (1888). [26] More to the modern point, the present Colorado Criminal Code makes the terms “offense” and “crime” synonymous and defines those terms as any “violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” Section 18-1-104(1), C.R.S. (1986 Repl. Vol. 8B) (emphasis supplied). [27] The code specifically prescribes that:[28] Section 18-1-104(3), C.R.S. (1986 Repl. Vol. 8B) (emphasis supplied). [29] Hence, the fact that the violation of the no-contact order may have constituted a violation of a municipal ordinance does not, by that fact alone, make that conduct a crime for purposes of the Criminal Code. Likewise, the fact that a violation of a court order may result in contempt proceedings does not render the contemptuous conduct criminal. Benninghoven v. Dees, 849 P.2d 906 (Colo.App. 1993). [30] People v. Slayton, 878 P.2d 106 (Colo.App. 1994) does not reach a contrary result. There, the issue presented was whether the term, “offense,” as used by the court in imposing a condition upon its acceptance of a deferred judgment and sentence, included the violation of a municipal ordinance. It was concluded that the statutory definition in § 18-1-104 did not limit the concept for this purpose. [31] At no point in these proceedings, either in the trial court or in their brief or argument before this court, have the People argued that defendant’s violation of the no contact order would also have violated some state statute. They have relied, exclusively, upon their assertion that the violation of a municipal ordinance, for which incarceration or a fine may be imposed, constitutes a “crime” under § 18-4-203. [32] Nevertheless, we must note that, presently, §§18-6-803.5(1) and 18-6-803.5(2), C.R.S. (1996 Cum. Supp.) provide that it is a class 2 misdemeanor to contact any person in violation of any restraining order issued pursuant to any of several state statutes or as a “part of the proceedings concerning a criminal municipal ordinance violation . . . .” [33] At the time of the charged incident here, however, that statute read as follows:[N]o conduct shall constitute an offense unless it is described as an offense in this code or in another statute of this state.
[34] Colo. Sess. Laws, 1992, ch. 35, § 18-6-803.5(1) at 177 (emphasis supplied). [35] Here, because the People did not rely upon the foregoing statute, this record contains no assertion nor any evidence that the pertinent no-contact order was entered pursuant to any of the referenced statutes. Rather, the specific testimony was that it was entered as a part of the proceedings for the violation of a municipal ordinance. [36] Further, as we have noted, neither the ordinance that defendant was charged with violating nor the ordinance pursuant to which the no contact order was entered was placed into the record, nor was any reference made to those enactments, either by the parties or by the trial court. [37] Finally, the statute as it existed in September 1992 appears to make it a crime to violate a court order entered pursuant to a municipal ordinance only to the extent that such order prevented threats, molestation, or injury of a person, or entering or remaining on premises. [38] Certainly, a no-contact order of the nature entered here would prevent all of these activities. [39] However, an intent simply to enter premises, even if in violation of a court order, would not constitute an intent to commit another crime “therein.” To commit burglary, it is necessary that the actor have an intent to commit another crime, not just the intent to make an unlawful entry. See People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972). [40] Finally, the jury’s finding that defendant did not intend to assault or to menace the victim negates any determination that defendant violated the other portions of the no contact order described in the statute. [41] Given these circumstances, we conclude that this record contains insufficient evidence to affirm defendant’s conviction of burglary.A person commits the crime of violation of a restraining order if such person commits an act which is prohibited by any court pursuant to a valid order issued pursuant to section 13-6-107, C.R.S. [restraining order to prevent emotional abuse of the elderly], sections 14-4-101 to 14-4-104, C.R.S. [restraining order to prevent domestic abuse], section 18-1-1001 [restraining order to protect witnesses in a criminal case], rule 365 of the Colorado rules of county court civil procedure [restraining order to prevent serious bodily injury], or an order issued by any district court, as provided for in Section 14-10-108, C.R.S. [restraining order to prevent encumbrance of property or molesting or disturbing the peace], which restrains and enjoins any person from threatening, beating, striking, or assaulting any other person or requires
Page 508
a person to leave certain premises and refrain from entering or remaining on such premises, or a municipal ordinance which provides for an order to issue which restrains any person from threatening, molesting, or injuring any person, or entering or remaining on the premises, or if such person fails to perform any act mandated by any such order, after such person has been personally served with any such order or otherwise has acquired from the court actual knowledge of the contents of any such order.
III.
[42] Because we have concluded that, given the jurors’ special findings, the evidence could not support defendant’s conviction of burglary, the question is presented whether defendant can be re-tried upon any charge or whether a conviction of a lesser offense may be entered.
Page 509
conclude that, whether such offense is a lesser included or a lesser non-included offense is irrelevant under the present record.
[47] As noted, the verdict here specifically found that defendant unlawfully entered a “dwelling.” Hence, even if criminal trespass is not to be considered as included within the charge of burglary, that finding would require a conviction of criminal trespass. [48] Further, while a jury cannot be instructed upon a lesser non-included offense unless a defendant requests or consents to such an instruction, see People v. Skinner, 825 P.2d 1045(Colo.App. 1991), defendant raised no objection to that instruction. Hence, the giving of such instruction here did not constitute error. See People v. Hogan, ___ P.2d ___ (Colo.App. No. 94CA2079, Dec. 27, 1996). [49] The order denying the Crim. P. 35(c) motion is affirmed. The judgment of conviction of burglary is vacated, and the cause is remanded with directions to enter a judgment of conviction of criminal trespass and to impose sentence for that offense. [50] JUDGE JONES concurs. [51] JUDGE METZGER concurs in part and dissents in part. [52] JUDGE METZGER concurring in part and dissenting in part. [53] I concur in the affirmance of the denial of defendant’s Crim. P. 35(c) motion. However, I respectfully dissent from the reversal of defendant’s burglary conviction and the imposition of a conviction for a lesser offense. [54] Section 18-6-803.5(2), C.R.S. (1996 Cum. Supp.) provides that: “Violation of a restraining order is a class 3 misdemeanor when the court order violated has been issued pursuant to . . . sections 14-4-101 to 14-4-104, C.R.S. . . . .” This provision became effective July 1, 1992. [55] Colo. Sess. Laws 1989, ch. 139, § 14-4-102(1) at 783 authorized county and district courts to issue temporary and permanent restraining orders. Colo. Sess. Laws 1989, ch. 139, § 14-4-102(2) at 783 provides: “A temporary or permanent restraining order to prevent domestic abuse may include: (a) Restraining a party from threatening, molesting, injuring, or contacting any other party or the minor children of either of the parties . . . .” This provision became effective April 19, 1989. [56] Colo. Sess. Laws 1991, ch. 127, § 14-4-102(1) at 743 added municipal courts of record, if authorized by the municipal governing body, to those courts empowered to issue temporary and permanent restraining orders to prevent domestic abuse. This provision became effective April 4, 1991. [57] The offense here occurred on September 7, 1992. As of that date, violation of a no contact order issued by a municipal court was a class 3 misdemeanor. Thus, that crime was an appropriate predicate offense for the crime of burglary. Accordingly, I would reject defendant’s contention and affirm his burglary conviction.