(a) Appointment of Counsel. If the defendant appears in court without counsel, the court shall advise the defendant of the right to counsel. In an appropriate case, if, upon the defendant’s affidavit or sworn testimony and other investigation, the court finds that the defendant is financially unable to obtain counsel, an attorney shall be assigned to represent the defendant at every stage of the trial court proceedings. In any misdemeanor case the court may appoint as counsel law students who shall act under the provisions of C.R.C.P. 226. No lawyer need be appointed for a defendant who, after being advised, with full knowledge of his rights thereto, elects to proceed without counsel. Except in a case in which a law student has been appointed, unless good cause exists otherwise, the court shall appoint the state public defender.
(b) Multiple Representation by Counsel. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.
(c) Request for Withdrawal of a Lawyer During Proceedings. Except as provided in section (e), withdrawal of a lawyer in a criminal case is a matter within the sound discretion of the court. In exercising such discretion, the court shall balance the need for orderly administration of justice with the facts underlying the request.
(d) Procedure for Withdrawal During Proceedings.
(1) A lawyer may withdraw from a case only upon order of the court. In the discretion of the court, a hearing on a motion to withdraw may be waived with the consent of the prosecution and if a written substitution of counsel is filed which is signed by current counsel, future counsel and the defendant. A request to withdraw shall be in writing or may be made orally in the discretion of the court and shall state the grounds for the request. A request to withdraw shall be made as soon as practicable upon the lawyer becoming aware of the grounds for withdrawal. Advance notice of a request to withdraw shall be given to the defendant before any hearing, if practicable. Such notice to withdraw shall include:
(I) That the attorney wishes to withdraw;
(II) The grounds for withdrawal;
(III) That the defendant has the right to object to withdrawal;
(IV) That a hearing will be held and withdrawal will only be allowed if the court approves;
(V) That the defendant has the obligation to appear at all previously scheduled court dates;
(VI) That if the request to withdraw is granted, then the defendant will have the obligation to hire other counsel, request the appointment of counsel by the court or elect to represent himself or herself.
(2) Upon setting of a hearing on a motion to withdraw, the lawyer shall make reasonable efforts to give the defendant actual notice of the date, time and place of the hearing. No hearing shall be conducted without the presence of the defendant unless the motion is made subsequent to the failure of the defendant to appear in court as scheduled. A hearing need not be held and notice need not be given to a defendant when a motion to withdraw is filed after a defendant has failed to appear for a scheduled court appearance and has not reappeared within six months.
(e) Termination of Representation.
(1) Unless otherwise directed by the trial court or extended by an agreement between counsel and a defendant, counsel’s representation of a defendant, whether retained or appointed, shall terminate when trial court proceedings have concluded. Trial court proceedings “have concluded” when restitution, if applicable, is finally determined and at the point in time:
(I) When dismissal is granted by the court and no timely appeal has been filed;
(II) When the parties have entered into an agreement for pretrial diversion or when an order enters granting a deferred sentence or probation if no sentence to incarceration is imposed;
(III) After a sentence to incarceration is imposed upon conviction when no motion has been timely filed pursuant to Crim. P. 35(b) or such motion so filed is ruled on; or
(IV) When a timely notice of appeal is filed by the defendant.
(2) At the time a pretrial diversion order is entered or deferred sentence is granted or at the time sentence is imposed upon conviction, the court shall inform the defendant when representation shall terminate.
Source: Entire rule amended June 19, 1986, effective January 1, 1987; entire rule amended and adopted December 19, 1996, effective March 1, 1997; e amended and adopted September 10, 2009, effective January 1, 2010; amended and adopted October 24, 2019, effective October 24, 2019.
Annotation Law reviews. For note, “Right to Counsel in Colorado”, see 34 Rocky Mtn. L. Rev. 343 (1962). For article, “Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview”, see 50 U. Colo. L. Rev. 277 (1979). For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses recent cases relating to the right to counsel, see 15 Colo. Law. 1578 (1986). Annotator’s note. For other annotations concerning legal counsel for the indigent, see § 16 of art. II, Colo. Const., and § 18-1-403 . Court to advise defendant of right to counsel and to make financial inquiry. The rule imposes upon the trial court an affirmative duty to advise all criminal defendants, whether affluent or indigent, who appear without counsel of the right to counsel, and to inquire into the defendant’s financial ability to employ counsel if pertinent. Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965). However, a defendant is not entitled to a presumption of poverty. Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965). Defendant with sufficient means accorded reasonable opportunity to employ attorney. If it appears that a defendant has sufficient means to employ an attorney of his own choosing, then he must be accorded a reasonable opportunity to do so. Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965). Attorney assigned to represent indigent defendant at every stage of trial court proceedings. If upon the defendant’s affidavit or sworn testimony and other investigation the court finds that the defendant is financially unable to obtain counsel, an attorney shall be assigned to represent him at every stage of the trial court proceedings. Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965). Including imposition of sentence. This rule provides that in the case of an indigent defendant in a criminal proceeding, an attorney shall be assigned to represent him at every stage of the trial court proceedings, which includes imposition of sentence. The imposition of sentence is certainly one stage of the proceedings before the trial court; indeed, it is perhaps the most critical stage of the proceeding. John Doe v. People, 160 Colo. 215, 416 P.2d 376 (1966); Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967). So, if a defendant later insists on this right, he is entitled to have the sentence vacated and a new one imposed, at which time he should be represented by an attorney and provided counsel if he is unable to employ his own lawyer. Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967). Right to counsel extended to contempt proceedings resulting in imprisonment. The right to counsel must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness. Padilla v. Padilla, 645 P.2d 1327 (Colo. App. 1982). Previously, appointment of counsel on appeal was generally denied to indigents in all cases except capital. In re Petition of Griffin, 152 Colo. 347, 382 P.2d 202 (1963). Court must establish that waiver of right made knowingly and intelligently. Once it is established that a defendant has a right to counsel, the court must establish that any waiver of that constitutional right is made knowingly and intelligently. Padilla v. Padilla, 645 P.2d 1327 (Colo. App. 1982). Court obligated to see that appointed counsel of sufficient ability and experience. When a court is called upon to appoint counsel for a defendant in a criminal case, it is its duty to see that counsel of sufficient ability and experience is assigned to fairly represent the defendant. Carlson v. People, 91 Colo. 418, 15 P.2d 625 (1932). One consenting to representation by counsel employed by another cannot complain counsel ineffective. One who has knowledge that he could have court appoint counsel if desired but consents to representation by counsel employed by another for him, cannot complain that counsel was ineffective without a showing of substantial prejudice to the defendant because of counsel’s representation. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971). Joint representation does not result in a per se violation of the right to effective counsel. Neither defendant testified, so defense counsel was not faced with the possibility of commenting on the credibility of one to the detriment of the other. People v. Tafoya, 833 P.2d 841 (Colo. App. 1992). Trial counsel was counsel of record at the time the 45-day period for filing a notice of appeal under C.A.R. 4(b) expired where trial counsel filed a Crim. P. 35(b) motion before appellate counsel was appointed and trial counsel had not moved to withdraw. People v. Baker, 104 P.3d 893 (Colo. 2005). Applied in Buckles v. People, 162 Colo. 51, 424 P.2d 774 (1967).
