Colorado § 21-1-104 - Duties of public defender - report.

§ 21-1-104. Duties of public defender - report.

(1) When representing an indigent person, the state public defender, only after the conditions of section 21-1-103 have been met, shall:

(a) Counsel and defend him, whether he is held in custody, filed on as a delinquent, or charged with a criminal offense or municipal code violation at every stage of the proceedings following arrest, detention, or service of process; and

(b) Prosecute any appeals or other remedies before or after conviction that the state public defender considers to be in the interest of justice, except as limited in subsection (3) of this section.

(2) In no case, however, shall the state public defender be required to prosecute any appeal or other remedy unless the state public defender is satisfied first that there is arguable merit to the proceeding.

(3) In order to expedite death penalty appeals, state moneys shall not be used to prosecute any appeal on behalf of the defendant in any class 1 felony case where the death penalty has been imposed that is not an appeal as of right in state court. In addition, in any class 1 felony case where the death penalty has been imposed, state moneys shall not be used to prosecute any federal habeas corpus proceeding on behalf of the petitioner, unless the petitioner is seeking to prevent extradition. For purposes of this subsection (3), "appeal as of right" means a direct appeal on behalf of the defendant of the validity of the underlying conviction and the propriety of the sentence and a motion for postconviction relief properly brought by the defendant in accordance with rule 35 of the Colorado rules of criminal procedure and any appeal on behalf of the defendant of the denial of such motion.

(4) Notwithstanding section 24-1-136 (11)(a)(I), pursuant to section 2-7-203, the state public defender shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning:

(a) The number of juvenile delinquency cases for which counsel from the office is appointed;

(b) The number of juvenile cases that involve a conflict of interest;

(c) The process of selecting, training, and supporting attorneys who represent children in juvenile delinquency court;

(d) The average length of time attorneys are assigned to juvenile court;

(e) The outcome of efforts to reduce juvenile court rotations and increase opportunities for promotional advancement in salaries for attorneys in juvenile court; and

(f) The process of training attorneys and other employees of the office concerning determinations of competency to proceed for juveniles and adults, competency evaluation reports, services to restore competency, and certification proceedings governed by article 65 of title 27.

(5) The state public defender shall hire social workers, as defined in section 12-245-401 (9), to assist in defending juvenile defendants.

(6) (a) The office of state public defender shall provide one or more public defender liaisons to the department of corrections and the state board of parole to assist inmates or inmate liaisons with legal matters related to detainers, bonds, holds, warrants, competency, special needs parole applications, and commutation applications. The office of state public defender, in consultation with the state board of parole and the department of corrections, shall develop any necessary policies and procedures for implementation of this subsection (6).

(b) The office of state public defender shall designate an email address for the public defender liaisons to the department of corrections to receive notifications made pursuant to section 17-33-104 from the department of corrections about offenders' outstanding warrants and pending Colorado court cases.

Source: L. 69: R&RE, p. 256, § 30. C.R.S. 1963: § 39-21-4. L. 81: IP(1) amended, p. 924, § 3, effective May 26. L. 94: (1)(b) amended and (3) added, p. 1475, § 4, effective July 1. L. 2014: (5) added, (HB 14-1023), ch. 177, p. 649, § 1, effective May 14; (4) added, (HB 14-1032), ch. 247, p. 955, § 9, effective November 1. L. 2017: IP(4) amended, (SB 17-233), ch. 175, p. 637, § 1, effective August 9. L. 2019: (4)(d) and (4)(e) amended and (4)(f) added, (SB 19-223), ch. 227, p. 2291, § 16, effective July 1; (5) amended, (HB 19-1172), ch. 136, p. 1682, § 114, effective October 1. L. 2021: (6) added, (SB 21-146), ch. 459, p. 3084, § 6, effective July 6. L. 2025: (6) amended, (HB 25-1116), ch. 153, p. 620, § 2, effective August 6.

ANNOTATION

A limited statutory right to counsel exists for a Crim. P. 35 hearing pursuant to § 21-1-103 and this section, and the waiver of such right to counsel must be made voluntarily but need not be knowingly and intelligent. People v. Duran, 757 P.2d 1096 (Colo. App. 1988).

There is a limited statutory right to counsel in post-conviction proceedings when the allegations are factually sufficient to warrant a hearing. People v. Hickey, 914 P.2d 377 (Colo. App. 1995).

A limited right to counsel exists under this section and § 21-1-103 for assistance in a hearing on a motion for a new trial under Crim. P. 33. However, the trial court properly denied the defendant's request for assistance and the request for a hearing where defendant's Crim. P. 33 motion failed to allege particularized facts supporting his assertion of ineffective assistance of counsel. People v. Esquivel-Alaniz, 985 P.2d 22 (Colo. App. 1999).

No constitutional right to postconviction counsel exists; however, a limited statutory right exists. The statutory right to postconviction counsel is neither automatic nor unlimited. It is limited to cases where a defendant's Crim. P. 35(c) petition is not wholly unfounded and has arguable merit, as determined by the court and the state public defender's office. Silva v. People, 156 P.3d 1164 (Colo. 2007).

This section cannot form an independent basis to provide representation because its applicability is predicated on prior satisfaction of § 21-1-103. The discretion afforded by subsection (1)(b)'s "in the interest of justice" determination relates to the public defender's actions when representing a party pursuant to § 103. People v. Shank, 2018 CO 51, 420 P.3d 240.

Trial court did not err in failing to appoint counsel to represent defendant because the court properly concluded from the record that defendant was not entitled to relief and, therefore, was not required to hold a hearing on the motion. People v. Fernandez, 53 P.3d 773 (Colo. App. 2002).

Strickland test, while based on the constitutional right to counsel, is applicable to the determination of whether a defendant has received effective assistance of counsel in a post-conviction proceeding. People v. Hickey, 914 P.2d 377 (Colo. App. 1995).

If postconviction counsel is required according to the limited statutory right, that counsel must provide effective assistance as measured by the two-pronged Strickland v. Washington test. Silva v. People, 156 P.3d 1164 (Colo. 2007).

Although the right to effective counsel under subsection (2) is limited, defendant had the right to raise the issue of whether postconviction counsel was ineffective when the trial court appointed postconviction counsel to deal with defendant's letter asserting ineffective assistance of trial counsel, thus demonstrating that defendant's claims had some merit. Furthermore, postconviction counsel, by filing a supplemental motion detailing allegations of ineffective assistance of trial counsel, also demonstrated that defendant's motion had some arguable merit. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

The provisions of this article in no way attempt to control or otherwise influence professional judgment of a lawyer employed as a public defender. Espinoza v. Rogers, 470 F. 2d 1174 (10th Cir. 1972).

Control of client over defense strategy. It is only when the question arises whether the defendant should plead guilty, waive a jury trial, or take the stand that defense counsel must be governed by and abide by the wishes of his client. McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971).

Under this section, public defender who undertakes an appeal cannot abandon representation on the grounds that the appeal lacks arguable merit. People v. Demarest, 801 P.2d 6 (Colo. App. 1990); People v. Ray, 801 P.2d 8 (Colo. App. 1990).

Standard of advocacy on appeal met. In considering the questions of when the public defender is required to prosecute an appeal and the duties which he has on appeal, the Colorado supreme court held that since the public defender had prepared a brief presenting each of the points that the defendant urged as a basis for appeal, the public defender had carried out the highest standards of the advocate in presenting his client's case, although recognizing the law as it related to the facts, he had submitted his case without oral argument in accordance with the standards of criminal justice. McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971).

As a matter of law, public defender's seven-year delay in filing a supplemental motion in a challenge that was filed within the time limits prescribed by § 16-5-402 was, in light of all the circumstances, outside the wide range of professionally competent assistance. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

When defendant claims that his or her limited statutory right to effective assistance of counsel was violated, the right is not constitutional. Violations of statutory rights do not necessarily require the same remedies as violations of constitutional rights. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

When defense counsel's ineffective assistance deprives a defendant of a hearing on the merits of his or her postconviction claim, the remedy is to provide such a hearing, not to order that defendant be granted a new trial. Vindication of this statutory right trumps society's interest in the finality of convictions. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).

Appointed counsel undertook appeal where he resisted his appointment only after prosecuting two prior appeals and the passage of more than ten months since his appointment. People v. Demarest, 801 P.2d 6 (Colo. App. 1990).

Appeal undertaken where counsel represented defendant throughout the trial proceedings and took no action resisting his appointment on appeal until more than one month after the appointment. People v. Ray, 801 P.2d 8 (Colo. App. 1990).

When defendant received numerous advisements to which he indicated his understanding as to the consequences of his refusal to proceed with appointed counsel, he did not overcome the court's finding that his waiver was voluntarily, knowingly, and intelligently made. People v. Haynie, 826 P.2d 371 (Colo. App. 1991).

A court-appointed public defender does not have a duty to prosecute a claim for post-conviction relief after determining that there is no arguable merit to the defendant's claim. People v. Breaman, 939 P.2d 1348 (Colo. 1997).

However, it is not proper for the court to appoint an attorney solely for the purpose of investigating the merit of a defendant's claim. People v. Breaman, 939 P.2d 1348 (Colo. 1997).

Prior to appointing an alternate defense counsel to investigate a claim against another public defender for ineffective assistance of counsel, court may require a public defender to file a sealed affidavit demonstrating facts supporting the claim. People v. Mills, 163 P.3d 1129 (Colo. 2007).

Trial court may, within its discretion, decline to appoint alternate defense counsel to investigate claims for the ineffective assistance of counsel in a prior case. People v. Mills, 163 P.3d 1129 (Colo. 2007).

Applied in People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974); People v. Maranjo, 738 P.2d 407 (Colo. App. 1987).