The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY November 1, 2018 2018COA153 No. 17CA0259, People v. Timoshchuk — Criminal Procedure — Postconviction Remedies — Conviction Obtained or Sentence Imposed in Violation of the Constitution; Constitutional Law — Sixth Amendment — Right to Counsel Defendant, a lawful permanent resident, was facing revocation of felony probation for forgery and other charges. Upon admitting the violation, he received a three-year prison sentence. Because of the length of sentence on this crime, he lost his eligibility to seek asylum in this country. He filed for postconviction relief, alleging that his counsel at the time of the probation revocation was ineffective in failing to advise him of this immigration consequence. His postconviction motion was summarily denied. We hold, apparently for the first time, that a defendant facing probation revocation has a statutory right to counsel, and thus a right to effective assistance of counsel. We further hold that the Strickland test applies to claims of ineffective assistance of counsel in the probation revocation context. Finally, we hold that defendant alleged sufficient facts to warrant a hearing on his claim. Accordingly, we reverse the summary denial, and remand for a hearing. COLORADO COURT OF APPEALS 2018COA153 Court of Appeals No. 17CA0259 El Paso County District Court No. 15CR1103 Honorable Thomas K. Kane, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Maksim V. Timoshchuk, Defendant-Appellant. ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE TOW Hawthorne and Bernard, JJ., concur Announced November 1, 2018 Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee McKinley Law Group, Ian C. McKinley, Longmont, Colorado, for Defendant- Appellant ¶1 Maksim V. Timoshchuk appeals the district court’s order summarily denying his Crim. P. 35(c) motion for postconviction relief based on a claim of ineffective assistance of counsel. We hold apparently for the first time, that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel as measured by the Strickland test. Because Timoshchuk asserted sufficient facts to warrant a hearing on his claim, we reverse and remand for further proceedings. I. Background ¶2 Timoshchuk was born in Ukraine and admitted to the United States as a refugee on July 16, 2002. The federal immigration authorities adjusted his status to that of a lawful permanent resident on November 17, 2005. ¶3 In March 2015, Timoshchuk was charged with forgery. As part of a plea agreement, on April 21, 2015, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating ...
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