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IS 35-C OR RE-TRIAL AN OPTION?

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Latest post Sat, Aug 24 2013 1:08 PM by CuriousInCa. 12 replies.
  • Fri, Aug 23 2013 12:59 PM

    IS 35-C OR RE-TRIAL AN OPTION?

     

    Yesterday was a long day in trial for my son who is 16 so this would be juvenile court. Although all motions were filed correctly by the public defender, it was her inability to speak to the judge and the questions she had during cross examination that really threw me off. It was if she had no ability to speak and was intimidated by the judge and DA. She literally froze and was a good minute or so between questions for the person on the stand. Due to her lack of communication skills and ability to speak to the courts ultimately the case was lost. But i did dismiss the attorney halfway through trial. Her inability to speak to the court or witnesses on the stand completely baffled me that somebody who passed the bar exam had no ability to ask the proper questions and showed up to trial in sandals, jeans and a sweater. It was my impression that she was a " lets make a deal lawyer" and has had very little if any experience in an actual trial. I was not even made aware of the fact we could have had a jury trial rather then it just being seen by a judge. She never mentioned one word about it and advised me that it was just the way district level and juvenile court was handled.

    The judge advised me when i dismissed our council in the middle of trial that it would not prevent the proceeding and that i would need to file a 35-C. My sons lawyer said she would remove herself from the case as well to speed along the process.

    Not only do i not know what a 35-C is but after reading for a while i have seen that it would also be a possibility to just file for a re-trial? I hope that some of this sounds familiar and that somebody can direct me in the right direction as this should have been a very simple case to beat and somehow we lost it due to literally, a lack of communication.

    If somebody could point me in the right direction or advise me what my immediate steps are to get this back into court i would truly appreciate it.

    Thank you in advance

  • Fri, Aug 23 2013 1:18 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Lost in translation:
    Not only do i not know what a 35-C is but after reading for a while i have seen that it would also be a possibility to just file for a re-trial?

    Not once a verdict was rendered.  His option is appeal.

    This: http://www.coloradoadc.org/forms/35(c)%20form.pdf  is the 35-C form in Colorado.

    Lost in translation:
    I hope that some of this sounds familiar and that somebody can direct me in the right direction as this should have been a very simple case to beat and somehow we lost it due to literally, a lack of communication.

    I wouldn't jump to the conclusion that it was an easy case.  Many MANY defendants erroneously believe that.  If the evidence was clear her slow questions or inexperience in a trial may not have had much of an effect.  

    Lost in translation:
    If somebody could point me in the right direction or advise me what my immediate steps are to get this back into court i would truly appreciate it.

    Yes, hire a lawyer.  Site rules prohibit giving specific legal advice and no CO attorneys are on the boards.

    This form appears to be a request for post conviction relief and it is not easy and not a DIY project.  

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Fri, Aug 23 2013 1:27 PM In reply to


    Re: IS 35-C OR RE-TRIAL AN OPTION?

    First, the attorney was your son's attorney, not yours, not "ours."  While you are the parent, your son is the person charged, so there is no "we."  Second, you didn't specify what your son was charged with.  Under the CO code, he would only have a right to request a jury trial if he was alleged to be an aggravated juvenile offender or charged with a crime of violence.  There is no right to a jury trial for a juvenile who is alleged to have committed a misdemeanor, a petty offense, a violation of a municipal or county ordinance, or a violation of a court order.  Lastly, your next step should be to get another attorney for your son.  You cannot represent him.

  • Fri, Aug 23 2013 1:48 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Then i am even more confused at this point. During the trial when I dimissed the lawyer. The judge advised me i would need to file a 35-c as soon as possible. I do not know what that or how to file it.

    And when i say "should have been a pretty easy case to beat" i truly mean it should have been a REALLY easy case to beat. It was a misdemener assault against a stepdad in defense of his mother and after he had been attacked by the step father as well. Something that was also made in the original statement by the "victim as well. I was not even sure how they put a case together based off the facts which is exactly what the public defender said as well. Unfortunatley i was not aware that her communication skills were below trial expectations and had no ability to speak to the courts.

  • Fri, Aug 23 2013 1:58 PM In reply to


    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Lost in translation:
    i am even more confused at this point

    Which is exactly WHY you need to obtain counsel for your son.  You aren't an attorney, you cannot legally represent him and you can't file anything on his behalf. 

  • Fri, Aug 23 2013 2:02 PM In reply to

    • DPH
      Consumer
    • Top 10 Contributor
    • Joined on Mon, Oct 8 2001
    • TX
    • Posts 7,875

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Lost in translation:
    During the trial when I dimissed the lawyer.

    Which begs the question of what could have possibly possessed you to dismiss the attorney in the middle of the trial.  Did your crystal ball somehow let you know that the case was going to be lost?  If not, then you jump to a mighty big conclusion that may have cost your son a conviction.  Yes?  You had no way to know the outcome in advance and you threw out your best chance.  Not sure that was a wise decision on your part.

    Lost in translation:
    i truly mean it should have been a REALLY easy case to beat.

    Again, you have no way to know that and you lack the training to make that happen.  That's why your son needed an attorney advocating for him.  Just because you say it should have been easy means nothing.  What matters is the evidence presented, etc.

    Lost in translation:
    Unfortunatley i was not aware that her communication skills were below trial expectations and had no ability to speak to the courts.
     

    Really doesn't matter.  The fact that your son had an attorney is what matters in order to protect his rights.  It doesn't always mean that the person will be found not guilty it just means that they are represented and the person doing the representing will do their best to mitigate the penalty if found guilty and to protect that person's right to a fair and impartial hearing/trial.

    What would you be saying if you had hired an attorney and your son was convicted or that the results were exactly the same as he received already? 

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Fri, Aug 23 2013 2:13 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    The reference to "35-C" means motion under Rule 35(c) of the Colorado Rules of Criminal Procedure. This is the section of the rules that addresses post-conviction relief available after the period for appeals has expired. It is the form of post appeals relief available in Colorado state courts rather than habeas corpus review, and a challenge of the conviction based on ineffective assistance of counsel would generally proceed under Rule 35(c). Your son will need a lawyer to file the motion to vacate the judgment based on ineffective assistance of counsel if he cannot do it himself. If you are not a lawyer you are prohibited from representing him in court or providing him any legal advice.

    Your son faces a couple of challenges here. The attorney was dismissed part way through the proceeding. The lack of an attorney for the rest of the proceeding may have been just as damaging or more so than what the attorney was doing. An ineffective assistance of counsel motion won't cure those things that occurred after the attorney was relieved that may have lead to the court's decision to convict your son. Also, a delay in asking questions would not itself be something that would ordinarly lead to a determination of ineffective counsel, particularly in a trial to the court rather than a jury. What matters most is whether the attorney asked the right questions, not so much how fast she asked them. I can tell you from experience that clients don't often appreciate what the right questions really are and what evidence is actually admissible in court. I don't mean to suggest that your son doesn't have a good claim for effective assistance of counsel; I'm not at all familiar with the case and what she did to form a good opinion on that. I'm just cautioning you that what clients (and their family and friends) think an attorney should do doesn't always match what the attorney is actually required to do to provide a competent defense.

    Claims of ineffective assistance of counsel require the defendant to prove not only that the attorney's performance was below the minimal level of competence, but also that had a competent attorney tried the case that there is a possibility that the outcome would have been different. If what occurred after the attorney's dismissal would still have resulted in conviction, for example, then the attorney's conduct really won't matter. If there are grounds for appeal o the conviction, he needs to get the notice of appeal filed promptly. If the period for appeal passes and he doesn't file the appeal, then he may lose the ability to challenge things that might have been good issues for appeal. Rule 35(c) is limited in the grounds on which relief can be sought after the appeal time runs out. These are not good do it yourself projects, and I strongly urge your son find a new attorney ASAP. 

  • Fri, Aug 23 2013 3:17 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    DPH,

    Your comment have been zero help and i am not sure why you would even reply if sarcasm was your intentions. I did not need a crystal ball to see "my sons" council had absolutley no idea what she was doing. The judge did that for me. He was criticle of the questions she was asking and looking at her like she was clueless. When i say she had minutes between questions it wasnt just that. She had no idea what she was asking the main witness and victim. There was no final punchline for her. She asked a total of 4 questions which happen to be the same questions the DA asked him just minutes before. I have no question weather or not she knew what she was doing in regards to filing motions and such but her verbal skills were very limited and were very minimul. I wish you could have been there, you would have had a totally different comment for me. Rather then critisizing me for relieving council you may have been critisizing me for how i let her defend my son.

  • Fri, Aug 23 2013 3:23 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Clydesmom,

     

    If i was to DIY for my son how would i go about it? The judge himself mentioned it during his rendering that " SOMEHOW the defense was not able to accomplish a valid self defence claim" and seamed relieved when i mentiond relieving her mid trial. It was truly something i have never ever seen in court and to be honest with you i do not have the ability $ wise to hire an attorney at this point to do it for him.

  • Fri, Aug 23 2013 3:34 PM In reply to

    • DPH
      Consumer
    • Top 10 Contributor
    • Joined on Mon, Oct 8 2001
    • TX
    • Posts 7,875

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Lost in translation:
    If i was to DIY for my son how would i go about it?

    You cannot do it for your son.  If your son wants to try and DIY, he has to do it. 

    BTW, you seem to have missed the main point of my original response.  The point that I was trying to get across is that you may have done more harm than good by removing the attorney midway through the trial.  Even if the end result had been exactly the same, at least your son would have been represented throughout the proceedings.  Again, you really have no way of knowing if the results would have been different.  I do not think that you are going to get a "do over" without the services of an attorney and maybe not even with the assistance of one.  At least try and arrange for another attorney to review the case and your fact pattern to see if there are any options available for your son.

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Fri, Aug 23 2013 3:53 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    But would it be possible for me to assist him in regards to getting things in motion? To get certain things filled so he does not miss the opprtunity such as a possible re-trial or even an appeal. Just to help him get it rolling and give me time to get the money for a proper attorney. Primary goal at this point considering his history is to avoid an additional adjudication and avoid juvinile hall or out of home placement. And so you are aware this is something i was given. All of his history was stacked up before me fighting in court to obtain him due to being out of control with his mother and digging in further and further with new cases. All of which i inherited with him when i won and what i am trying to help him clean up as we go and put behind us. His answer was just run. My response was face it head on. I can not make him face it alone when i told him i would help any way i could.

  • Fri, Aug 23 2013 5:29 PM In reply to


    Re: IS 35-C OR RE-TRIAL AN OPTION?

    First, nothing is appealable nor subject to collateral attack until AFTER sentencing, which in juvenile court is called the disposition.  The adjudication is the trial where the court renders its verdict by sustaining the petition or dismissing it.  You didn't say what happened during that hearing.  Second, if the petition is sustained, after disposition/sentencing, the minor would have the right to file an appeal and ask the court to appoint counsel to represent him on that appeal.  A collateral attack comes after the appeal, if the conviction is affirmed as can a motion to the trial judge to reconsider.  Your son needs counsel and he needs it now. 

  • Sat, Aug 24 2013 1:08 PM In reply to

    Re: IS 35-C OR RE-TRIAL AN OPTION?

    Lost in translation:

    But would it be possible for me to assist him in regards to getting things in motion? To get certain things filled ...I can not make him face it alone when i told him i would help any way i could.



    You cannot legally assist him nor offer him legal advice if you are not an attorney. You cannot file motions for him if you are not an attorney.

    If you want to help your son, you need to hire an attorney for him who will offer him proper legal advice and file motions or other court papers on his behalf. Be aware, though, that conversations between your son and his attorney may not be shared with you. The young man is the client, not you.

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