(1) At the hearing held pursuant to section 16-12-204 (2), if the defendant chooses to pursue postconviction review, the trial court shall enter an order appointing new postconviction counsel for the defendant if the trial court finds that the defendant is indigent and either the defendant requests and accepts such appointment or the trial court finds that the defendant is unable to competently decide whether to accept or reject the appointment. However, the trial court shall not appoint new postconviction counsel if:
The defendant has retained new postconviction counsel; or
The defendant has elected to proceed without counsel and the trial court finds, after afull discussion on the record, that the defendant's election to proceed without counsel is knowing, intelligent, and voluntary; or
The defendant elects to have trial counsel continue representing the defendant forpurposes of postconviction review and the trial court finds, after a full discussion on the record, that:
The defendant understands that new postconviction counsel can be retained by thedefendant for purposes of postconviction review or appointed by the trial court for the defendant if the defendant is indigent;
The defendant understands that, by electing to have trial counsel continue to represent the defendant for purposes of postconviction review, the defendant waives the right to challenge the effectiveness of trial counsel's representation at any stage of the proceedings;
The defendant's election to have trial counsel continue to represent the defendantfor purposes of postconviction review is knowing, intelligent, and voluntary; and
Trial counsel agrees to continue representing the defendant for purposes of postconviction review.
(2) In appointing new postconviction counsel to represent an indigent defendant, the trial court shall appoint one or more attorneys who, alone or in combination, meet all of the following minimum qualifications:
Each appointed attorney shall be licensed to practice law in Colorado or be admittedto practice in Colorado solely for the purpose of representing the defendant;
At least one of the appointed attorneys shall have a minimum of five years' experience in criminal law litigation, including work on trials and postconviction proceedings;
At least one of the appointed attorneys shall have a minimum of three years' experience in trying felony cases, including having tried at least five felony cases to verdict in the preceding five years or having tried a minimum total of twenty-five felony cases; and
At least one of the appointed attorneys shall have a minimum of three years' experience in handling appeals of felony cases, having served as counsel in at least five appeals in felony cases.
(3) In appointing new postconviction counsel, the trial court may also consider the following factors:
Whether the attorney under consideration has previously appeared as counsel in aclass 1 felony case in which the death penalty was sought;
Whether the attorney under consideration has tried at least one first degree murdercase to verdict;
Whether, within the preceding five years, the attorney under consideration has taughtor attended a continuing legal education course that dealt in substantial part with the trial, appeal, and postconviction review of class 1 felony cases in which the death penalty is sought;
The workload of the attorney under consideration and how that workload would affect the attorney's representation of the defendant;
The diligence and ability of the attorney under consideration; and
Any other factor that may be relevant to a determination of whether the attorneyunder consideration will fairly, efficiently, and effectively represent the defendant for purposes of postconviction review.
In any case in which the trial court appoints new postconviction counsel or newpostconviction counsel is retained, said new postconviction counsel shall not be retained or appointed to act as co-counsel with trial counsel and shall not be associated or affiliated with trial counsel. New postconviction counsel shall exercise independent judgment and act independently from trial counsel.
The ineffectiveness of counsel during postconviction review shall not be a basis forrelief.
The office of the public defender or the office of alternate defense counsel, created insection 21-2-101, C.R.S., whichever is appropriate, shall pay the compensation and reasonable litigation expenses of defendant's counsel incurred during the unitary review proceeding.
Source: L. 97: Entire part added, p. 1576, § 1, effective June 4. L. 2009: (6) amended, (SB 09-292), ch. 369, p. 1948, § 29, effective August 5.