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89 Denv. U. L. Rev. 327 (2011-2012)
Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel

handle is hein.journals/denlr89 and id is 343 raw text is: THE COLORADO COUNSEL CONUNDRUM: PLEA BARGAINING, MISDEMEANORS, AND THE RIGHT TO COUNSEL JUSTIN MARCEAUt & NATHAN RUDOLPHt Colorado's procedures for handling misdemeanor prosecutions raise novel questions of Sixth Amendment law that have not been squarely addressed by state or federal courts. At the center of Colorado's counsel conundrum is a statute, Colorado Revised Statute § 16-7-301, which re- quires the prosecution to negotiate plea deals with a person charged with a misdemeanor before the defendant has an opportunity to meet with an attorney. There are strong incentives for defendants to accept a pre- counsel offer; indeed, by accepting an early, pre-counsel plea, a defend- ant may accrue sentencing or charge concessions from the prosecution.' Moreover, and more significant, for defendants who are not released on bail, the consequences of refusing a pre-counsel plea offer are even more immediate: such a defendant faces the Hobson's choice of pleading guilty to a crime without the advice or assistance of counsel and thus obtaining one's immediate release from custody, or remaining in jail for several more days until a second appearance when counsel is appointed.2 That is to say, insisting on one's right to counsel in a misdemeanor case may come at a cost, both in terms of the ultimate sentence, and the length of the time they are subject to pretrial detention.3 Even a defendant who is arrested for an offense for which jail is a most unlikely sentence4 could t Assistant Professor of Law, University of Denver, Sturm College of Law. t J.D. 2012, University of Denver, Sturm College of Law. We are grateful for the substantive and editorial suggestions offered by Rebecca Aviel, Alan Chen, Ian Farrell, Nancy Leong, Sam Kamin, and Kris Miccio. We also acknowledge the consistent excel- lence of the Denver University Law Review in striving to publish timely articles at the intersection of theory and practice. I. COLO. REV. STAT. § 16-7-301 (4)(a)(1) (2011). 2. The Colorado rules provide for the appointment of counsel at the second appearance, which usually occurs three days after the initial appearance for persons in custody. By contrast, Federal Rule of Criminal Procedure 44 requires that counsel be appointed to defendants from initial appearance through appeal, unless the defendant waives this right; however, an attorney need not be provided if the federal court determines that the charged offense is a petty offense, defined as a case for which the court determines that, in the event of conviction, no sentence of imprisonment will actually be imposed. Fed. R. Crim. P. 58(a)(3). See also 2 F. LEE BAILEY & KENNETH FISHMAN, HANDLING MISDEMEANOR CASES § 29:1 (2d ed. 2011) (identifying a circuit split as to whether the scope of Rule 44 is broader than, or coextensive with the federal constitutional right to counsel). 3. This is consistent with statistics from other jurisdictions demonstrating that the most significant predictor of defendants entering a plea of guilty or no contest at arraignment was their custody status. See, e.g., ALISA SMITH & SEAN MADDAN, NAT'L. ASs'N. CRIM. DEF. LAW., THREE- MINUTE JUSTICE: HASTE AND WASTE IN FLORIDA'S MISDEMEANOR COURTS 15 (2011). 4. If a sentence of actual incarceration is not authorized by the statute, then existing case law precludes Sixth Amendment claims. Scott v. Illinois, 440 U.S. 367, 369, 372-74 (1979). This raises 327

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