Please thank Governor Ritter for implementing a juvenile clemency board and ask him to commute the sentences of all 5 featured in the Frontline documentary to time served. [email protected]

Office of the governor: 303-866-2471

NATHAN'S STORY

Nathan Ybanez was brutally abused by both his mother and father. He repeatedly tried to run away from home.

Friends in the affluent community in which he lived contacted Department of Human Services and the Sheriff's department, seeking help for Nathan.

No one intervened.

At 16, Nathan killed his mother. His friend, Erik Jensen, was there during part of the struggle.

Nathan and Erik went to trial right after Columbine. Both received life without parole sentences.

If you'd like to learn more about Erik Jensen, Nathan's friend, please go to

www.nextdayfoundation.com

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Below is an edited version of the recently filed appeal for Nathan Ybanez.

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Pursuant to Colorado Rule of Criminal Procedure 35(c), defendant Nathan Gayle Ybanez seeks an order from the Court vacating the current judgment of conviction and setting this matter for a new trial.  In the alternative, he seeks the right to directly appeal his conviction, or an order vacating his sentence and setting this matter for a new sentencing hearing.
INTRODUCTION
This case is a test of the integrity of our judicial system and the "safety net" provided to criminal defendants under Rule 35(c).  At the age of only 16, Nathan Gayle Ybanez was charged as an adult with first degree murder in the homicide of his mother.
Nathan's mother and father both sexually and physically abused Nathan throughout his childhood.  Although Nathan's father was a victim in the case who testified for the prosecution, it was Nathan's father who retained the attorney to defend Nathan at trial.  Nathan's attorney failed to advise Nathan that payment of legal fees by his father would inevitably hinder the attorney's ability to investigate Nathan's father, mother and the circumstances of Nathan's upbringing, and to present evidence at trial that Nathan's conduct in this case was the byproduct of an ultra-abusive home.  Where an attorney labors under an actual conflict of interest - as did Nathan's trial attorney in this case - the prejudice element of the ineffective assistance of counsel test is presumed.  In this case, the actual prejudice to Nathan resulting from the conflict of interest was clear and extreme.
The obvious defense to the only count in the complaint, first degree murder, was to negate the government's theory of deliberation and intent by presenting evidence of the violent and abusive circumstances in Nathan's home.  Nathan's attorney failed to present this evidence, or indeed, to develop or present any defense at all.  Simply put, Nathan could not be defended by an attorney hired by Nathan's abusive father because that abuse was the heart of Nathan's defense.
To prepare for trial, Nathan's attorney did virtually nothing.  Despite numerous indications in discovery that Nathan had been abused by his parents, his trial attorney's file reveals no witness interviews, no investigation of Nathan's family circumstances, nor any other pre-trial investigation whatsoever.  Nathan's attorney filed only one substantive motion, which ultimately was uncontested.  He presented no evidence of parental abuse as mitigation to the district attorney's office in an effort to secure a plea deal or as a defense at trial.
In less than three days in 1999, Nathan was tried, convicted, and sentenced to life in prison without the possibility of parole.  He was 17 years old.  The presentation of evidence took only one day because Nathan's counsel - hobbled by his relationship with Nathan's father - offered no challenge to the prosecution's case.  Nathan's attorney called no witnesses.  He presented no evidence.  He posited no defensive theory of the case to the jury.  He failed to cross-examine Nathan's father, who retained him, about the abusive home environment that negated the intent and deliberation elements of the charge.  He failed to make a single objection throughout the entire trial, including to improper and misleading prosecution evidence that Nathan's mother and father were good parents.  In closing argument, Nathan's attorney could do no better than to echo the prosecution's theory of the case - in the prosecution's exact words - by conceding to the jury that maybe Nathan did indeed "have a hole in [his] soul."  Although he obviously understood the need to explain Nathan's conduct and his abusive circumstances, Nathan's counsel failed to offer that explanation because it would implicate Nathan's father, the man who hired him to "defend" Nathan. 
Finally, even though Nathan was a child serving a sentence of life in prison without the possibility of parole, Nathan's attorney failed even to file a notice of appeal, despite Nathan's express request that he do so.  It is difficult to imagine a clearer case of ineffective assistance of counsel.
The legal standards under Rule 35(c) are high.  But this case is extraordinary.  The first part of this motion demonstrates that Nathan had ineffective assistance of counsel at trial because (1) his trial counsel had an actual, unwaivable conflict of interest; (2) his counsel's performance at trial was otherwise constitutionally deficient; and (3) his counsel failed to appeal his conviction despite Nathan's request that he do so.  The remedy for both points (1) and (2) is to vacate Nathan's conviction and to set this matter for a new trial.  The remedy for point (3) is to restore to Nathan the right to directly appeal his conviction.
	In the second part of this motion, Nathan challenges the constitutionality of his sentence of life in prison without the possibility of parole.  Nathan's sentence is an anachronism.  Since he was sentenced, the Colorado legislature has joined the growing national and international consensus by prohibiting life sentences without the possibility of parole for child offenders.  Accordingly, Nathan is one of only a few persons in the state of Colorado condemned to die in prison for a crime committed during his childhood.  As demonstrated in the second section of this motion, the repealed statute that required a mandatory sentence of life in prison without the possibility of parole for Nathan is unconstitutional as applied to him under both the Eighth Amendment to the United States Constitution and Article II, Section 20 of the Colorado Constitution
TRIAL COUNSEL'S CONFLICT OF INTEREST
	Nathan's father, Roger Ybanez, hired counsel, Craig Truman, to represent Nathan in the case.  The fee agreement consisted of a two-page letter from Mr. Truman setting forth the terms of the engagement.  The terms of the fee agreement were straightforward.  Roger Ybanez agreed to pay Mr. Truman a flat fee of $90,000 - a portion to be paid at the beginning of the case and a second portion paid later in the case.  At the time Mr. Truman entered his appearance in Nathan's case, the facts known to him were amply sufficient to warrant advisement to Nathan concerning the conflict of interest and to require a waiver from Nathan based on that advisement.  
The discovery provided by the prosecution during the subsequent fifteen months underlined this debilitating conflict, revealing facts that pointedly supported a defense based upon the abuse of Nathan by his parents.  The discovery provided by the prosecution contains numerous, explicit references to physical abuse of Nathan by his parents.  ("When [Nathan] was younger, his father would beat him."); ("[Nathan's] mom and dad had hit him.") ("[Nathan's] father hit him.") ("[Nathan's] dad beat him up.") ("Nathan slept with a bat in his bed.") ("[Nathan] always keeps a bat in his room to protect himself from his father.") (After a runaway attempt, "Nathan said he is unable to live at home with his parents . . . Nathan requested Social Services be contacted for relocation.") ("Both [the Jensen] family and [the Baker] family have tried to get Social Services involved in Nathan's family.") ("[Eric] Jensen's parents were concerned that Nathan was being abused.") ("[Nathan's] dad . . . physically abused him as well as mentally.") (At the time of the homicide, Nathan is alleged to have yelled at his mother "[you're not going to hurt me anymore!").   
The discovery reveals that Nathan's father knew that he had created a family environment that might cause Nathan to "snap" - indeed this is how he explained the homicide.  (When first informed of the homicide, Nathan's father opines that Nathan must have "just . . . lost it."
The discovery also reveals that Nathan suffered mental abuse at the hands of his parents.   ("[Nathan's] parents did weird controlling things . . . his mother would yell at him.") ("Roger [Ybanez] was verbally abusive to . . . Nathan . . . Roger had gone into Nathan's bedroom and destroyed Nathan's property . . . .") ("Roger told Nathan his mom didn't want him anymore.")("Nathan's dad was mean to Nathan.") (describing how Julie Ybanez surreptitiously recorded Nathan's phone calls).   The discovery shows on several occasions that Nathan actually fled his home in an effort to get away from his parents. ("[Nathan] has run away because of troubles with his father.") ("Nathan ran away one time.  He was wearing scant clothing.  He did not have any shoes on at the time.") (Roger Ybanez explaining that Nathan "ran away from home three times last year.") The discovery demonstrates that the relationship between Nathan and his father was openly adversarial after the homicide.  (during the law enforcement interview of Nathan, only a few days before hiring counsel for Nathan, Roger Ybanez left the room yelling at Nathan "you sick little fuck head, I can't stay in here anymore!") (Roger Ybanez telling law enforcement that he should not be alone with Nathan because he is "liable to beat the shit out of [Nathan].").
COUNSEL'S TRIAL PREPARATION, TRIAL PERFORMANCE, AND FAILURE TO APPEAL
	There is no evidence in Mr. Truman's file that he did anything to develop a factual defense, based on the abusive environment in which Nathan lived, to negate the elements of specific intent and deliberation, even though this defense was apparent from the discovery provided by the prosecution itself.  There is no evidence that Mr. Truman conducted any witness interviews or investigation whatsoever, or even that he hired an investigator to investigate these facts.  He did not endorse any witnesses to call at trial concerning this or any other issue.
Mr. Truman made no attempt to develop factual or legal defenses through his motions practice.  He filed only one substantive motion.    The substance of the motion was contained within seven sentences on less than half a page.   The government conceded the motion without the presentation of evidence.   Mr. Truman made virtually no procedural or substantive pre-trial objections or "record," and no constitutional or other challenge to the statutes authorizing Nathan be tried as an adult and requiring him to be imprisoned for life without the possibility of parole upon conviction. 
Mr. Truman did not present as mitigation to the district attorney evidence that Nathan was abused by his parents throughout his upbringing - the only mitigation that could have made a difference, given the otherwise inexplicable facts of this case.
Mr. Truman had Nathan evaluated for a mental defect, but did not provide any professional with the substantial evidence of abuse available from the prosecution file.  Nor did he seek expert support, based on that evidence, for a defense negating the specific intent and deliberation elements of first degree murder.  According to the available records, the sole professional examination arranged by Mr. Truman took place over several hours and involved only the perfunctory administration of a few basic psychological tests.   Mr. Truman did not have Nathan examined by a clinical or forensic psychiatrist, psychologist, or other professional capable of developing a trust relationship with Nathan, in an effort to evaluate Nathan's abusive home environment and learn why Nathan had acted so irrationally.  Nor did Mr. Truman seek the aid of any professional, even in light of the substantial evidence of parental abuse, to examine the issues typically encountered when a child commits the extraordinary act of matricide.
No defense of any kind was presented at the trial.  The entire process, from jury selection to sentencing, took less than three days.  The presentation of evidence took just one day.  
In a single day, the second day of trial, all of the evidence upon which Nathan was ultimately convicted was presented to the jury.  Nine witnesses testified - all on behalf of the prosecution.  Mr. Truman did not cross-examine three of those witnesses.  
As Mr. Truman knew would happen, Roger Ybanez testified on the government's behalf.  Mr. Truman did not ask questions of Roger Ybanez concerning Nathan's abusive upbringing or the physical, mental, and sexual abuse of Nathan during his childhood.  To the contrary, he sat silently.   Ironically, Mr. Truman himself then elicited testimony from Roger Ybanez tending to negate that Nathan's upbringing was poor or even unusual.  ("He was a good kid.  Normal kid . . . you know, played baseball . . . sledded.) (describing Nathan's "fantastic" school performance as a child) (describing the "family dynamics" as "very good" and that Roger "would push [Nathan] a little bit on some of the things that he did, but . . . overall it was just fine.  We took him skiing.  We . . . went for walks.  We did . . . church, the whole works.").  There is no reasonable explanation for Mr. Truman's failure to use facts known to him during his examination of Nathan's father to negate the culpable mental state elements of the charge.  Even worse, Mr. Truman used his cross-examination of this key prosecution witness to damage Nathan's defense by establishing affirmatively - and falsely - that Nathan's home life was normal.  
Mr. Truman's cross-examination of Roger Ybanez was representative of his cross-examinations of the other witnesses.  Mr. Truman never raised the specter that Nathan was abused during his childhood.  He allowed, and even elicited, evidence that Nathan's upbringing was normalIn fact, Mr. Truman failed to make a single evidentiary objection throughout the entire trial.
On the third and final day of trial, the court instructed the jury and the attorneys made closing arguments.  In closing, the prosecution pointed out to the jury that there did not appear to be a motive or reason for Nathan to have committed such a heinous act against his own mother.    Arguing, however, that "motive" is not an element of the offense, the prosecution dismissed this problem.   The prosecution then argued, referring to Nathan and his friends, "[t]hese kids have a hole in their soul.  Ladies and Gentlemen, you can drive a truck through it."    The obvious purpose of this statement was to persuade the jury that Nathan and his friends were soulless, morally-depraved, compassionless killers.
In closing for Nathan, Mr. Truman first agreed with the prosecution that his client's acts were inexplicable. (posing, repeatedly, the rhetorical questions "[w]hat's wrong with Nathan Ybanez?  How did he get that way?").  Then, incredibly, Mr. Truman actually repeated the prosecution's characterization of Nathan and his friends:
[T]he reason for Nathan Ybanez maybe is what Mr. Rice said, and that is perhaps there's a hole in their soul.  Boy, I tell you.  I've never seen kids like this.  Never seen kids like this, and I hope, as Mr. Rice says, that it's some people and not others . . . .
Perhaps even more incredibly, Mr. Truman concluded his closing argument by discounting the evidence of Nathan's abuse that had leaked out during the prosecution's case as something that did not really happen, but that Nathan's friends had only convinced him to believe had happened.   ("So from that period of time or discussion about your being abused, Nathan begins to believe it .  (characterizing testimony concerning Nathan's abuse as "lame-brained").  Representing Nathan, but hired by Nathan's father, Mr. Truman argued against the only explanation even hinted at during trial that would negate the prosecution's charge of an intentional, deliberated killing.
After deliberating for approximately four hours, the jury returned a verdict of guilty to the single count of first degree murder.   A few minutes later, the court imposed on Nathan the mandatory sentence of life in prison without the possibility of parole.
Nathan asked Mr. Truman to appeal the conviction.  But Mr. Truman did not file a notice of appeal, nor does his file reflect any notice to Nathan that his conviction would not be appealed.  (letter from Nathan concerning appeal).  Likewise, he did not forward an "appellate packet" to the Office of the State Public Defender, so that the public defender could file an appeal on Nathan's behalf.  This motion is Nathan's only hope for relief.
ADDITIONAL EVIDENCE OF ABUSE
	In addition to the evidence contained in the case discovery made available to Nathan's trial counsel by the prosecution, post-conviction counsel has uncovered more evidence of physical abuse, including sexual abuse, of Nathan by Roger and Julie Ybanez.  Much of this evidence was not difficult to uncover.  For example, had Mr. Truman only obtained Nathan's file from the Department of Human Services, he would have learned that subsequent to one of Nathan's runaway incidents - an incident taking place within a year of the homicide - Nathan told Human Services that his dad "tried to strangle him" and that "he [was] afraid to go home."  
Other evidence of abuse was more difficult to find, but nonetheless obtainable.  For a period of time after 2004, Nathan regularly saw a clinical psychologist, Richard Spiegle.  Dr. Spiegle reports that after several interactions with Nathan, Nathan admitted to him that he had been sexually abused by both his father and mother on a number of occasions.  The accounts of sexual abuse are detailed, harrowing, and consistent with other discovered physical evidence.     Dr. Spiegle will testify that children who commit matricide frequently do so as a result of sexual abuse and that it is not uncommon for children who are victims of sexual abuse to delay their "outcry" until years after the incidents.  In fact, a child sexual abuse victim will rarely advise others of the sexual abuses he suffered until well after the incidents took place.
During one visit with Dr. Spiegle, Nathan advised Dr. Spiegle that he was "uncomfortable" taking his shirt off in front of other prison inmates because he did not want other people to see his back.  Dr. Spiegle examined Nathan's back and observed markings that appeared to be scars.  However, Nathan could not explain what the markings were, for how long he had the markings, or from where the markings came.  Dr. Spiegle asked a colleague, Andrew Sirotnak, to investigate further.
Dr. Sirotnak is a prominent physician specializing in the care of abused and neglected children.  He is the Director of the Kempe Child Protection Team at Children's Hospital in Denver, and has frequently served as a witness on behalf of the prosecution in this and other jurisdictions in cases involving sexual assaults on children.   Dr. Sirotnak examined Nathan.  In his report, he describes the markings on Nathan's back:
There are six distinct horizontal marks identified.  The first two are approximately 3 inches in length.  The third one is the longest, starting at 3 inches and just distal to this mark is another mark 4 inches in length.  It is possible that this was one continuous mark.  The fourth mark below this is about 3 inches.  The fifth mark is 2 � inches, and the last mark is about 4 inches.  The beginning and the ending edges of these marks are somewhat indistinct.
For the numerous reasons stated in his report, Dr. Sirotnak concludes that the markings on Nathan's back resulted from child abuse:
It is my medical opinion that the marks on Nathan's back represent well-healed scar tissue. . . .  The linear nature of the marks running horizontally across his back in this very localized pattern in my opinion reflect well-healed inflicted trauma . . . .  I have seen these marks acutely and in well-healed, resolved patterns in children who have sustained inflicted injuries.  Such injuries, in my experience, may be commonly inflicted by linear, hard, or cord-like objects.
That Nathan suffered abuse at the hands of his parents during the years before the homicide of his mother cannot be reasonably disputed.  But evidence of Nathan's abuse was never presented to the prosecution in plea negotiations, nor was it ever presented to the jury as a defense.
	Here, Nathan asserts ineffective assistance of counsel on three grounds:  (1) that his trial attorney labored under an actual conflict of interest (resulting in per se prejudice and actual prejudice); (2) that his trial attorney's performance was constitutionally deficient and the deficiency resulted in actual prejudice; and (3) that trial counsel failed to perfect Nathan's right to appeal his conviction, despite an instruction from Nathan that he do so.
	There can be no doubt that Mr. Truman had an actual conflict of interest in this case.  His personal interest was to be paid for the work he performed.  But that interest was at odds with his client's interest in fully investigating and "taking on" at trial the very person paying his counsel's fees ("[A] lawyer shall not represent a client when the representation . . . may be materially limited by . . . the lawyer's own interests.").  This conflict of interest, while only potential on the date Mr. Truman entered his appearance, became obvious, actual, and unwaivable upon his receipt and review of discovery from the prosecution
	But Nathan need not rely on the legal presumption of prejudice afforded him.  The actual prejudice to Nathan as a result of the conflict of interest was extreme, as demonstrated by his counsel's wholly deficient performance.  Mr. Truman did not follow-up on any of the leads in discovery revealing abuse.  He did not investigate Roger or Julie Ybanez, or Nathan's upbringing.  He did not attempt to muster a defense based on the circumstances of Nathan's abusive home.  Nathan was left with no trial defense whatsoever, which is evident from Mr. Truman's failure to present any evidence during trial or to posit any arguments to the jury that would provide a predicate for a reduction from first degree murder to second degree murder.
	Conflict aside, Nathan's trial attorney's performance fell well below the "range of competence demanded of attorneys in criminal cases under prevailing professional norms."  In preparation for trial, Mr. Truman did virtually nothing.  He did virtually nothing at trial.  He did not appeal
Mr. Truman did not investigate.  There does not exist in his file even one investigative memorandum or a memorandum memorializing even one witness interview.  Mr. Truman did not file motions, other than the half-page uncontested motion and two motions to continue trial.  He did not seek any evidentiary hearings.  He did not object to the "direct file" decision in this case, to the statute authorizing that decision, or to virtually anything else that happened in the pre-trial stages.  He did not file any endorsement of witnesses, in anticipation of putting on evidence at trial.
At trial, Mr. Truman did not raise a defense.  He did not cross-examine one-third of the government's witnesses.  He did not present evidence.  He did not call any witnesses.  He did not object to any of the questions asked of the witnesses by the prosecution or to any of their testimony, or to any other evidence presented to the jury.  Even though Nathan was charged with a crime for which the mandatory penalty was life in prison without parole, the trial took essentially two full court days - one to pick the jury, another to commence and conclude the evidence.  Mr. Truman did not file an appeal, thereby waiving not only Nathan's right to review by the Colorado Court of Appeals, but also effectively waving Nathan's right to pursue federal habeas corpus relief, which is tolled by state direct appeal, but expired in this case 365 days after judgment of conviction.  If the performance by Nathan's trial counsel was not deficient, one is left to wonder what sort of performance - or non-performance - would be deemed deficient.
 Quite simply, Mr. Truman completely failed to present a defense on Nathan's behalf at all - even though an obvious defense existed.  Under these circumstances, there can be no confidence that the outcome would have been the same had trial counsel mounted a competent defense.
	It is unthinkable that an attorney would not appeal any first degree murder conviction as a matter of course.  The failure to appeal where the client is a child sentenced to life in prison without the possibility of parole, by itself, falls well below the prevailing standards of effective lawyering.  But the Court need not rely on Nathan's legal experts at the hearing of the matter to conclude that Mr. Truman's failure to file an appeal was ineffective, given the bright-line rule in Colorado that the failure of an attorney to appeal a case, where the client directed him to do so, is per se ineffective assistance of counsel warranting the renewed right to direct appeal
II.	NATHAN YBANEZ'S LIFE SENTENCE VIOLATES THE UNITED STATES AND COLORADO CONSTITUTIONS' PROHIBITIONS AGAINST "CRUEL AND UNUSUAL" PUNISHMENTS
Colorado law currently prohibits a sentence of life imprisonment without the possibility of parole for a juvenile offender.  So do at least 10 other states and the District of Columbia.  But because Nathan was charged and tried as an adult, and sentenced for a crime committed between 1991 and 2006, he was subject to C.R.S. � 18.1-105(4) (1999).  That statute - since repealed - required a mandatory sentence of life imprisonment without the possibility of parole for all class one 
Most importantly, for juveniles convicted of class one felonies committed after July 1, 2006, the harshest penalty available is life in prison with the possibility of parole after 40 years.   In amending the sentencing laws, the General Assembly expressly prohibited the sentence given to Nathan for any current juvenile offender, echoing much of the Supreme Court's reasoning
(1)  The general assembly hereby finds that:
. . . . 
(c) Because of their level of physical and psychological development, juveniles who are convicted as adults may, with appropriate counseling, treatment services, and education, be rehabilitated to a greater extent than may be possible for adults whose physical and psychological development is more complete when they commit the crimes that result in incarceration;
(d) A sentence to lifetime imprisonment without the possibility of parole for a juvenile who is convicted as an adult of a class 1 felony condemns the juvenile to a lifetime of incarceration without hope and, in most cases, without education or rehabilitation services, and results in the irredeemable loss of a person to society.
(2) The general assembly finds, therefore, that it is not in the best interests of the state to condemn juveniles who commit class 1 felony crimes to a lifetime of incarceration without the possibility of parole. Further, the general assembly finds that it is in the interest of justice to recognize the rehabilitation potential of juveniles who are convicted as adults of class 1 felonies by providing that they are eligible for parole after serving forty calendar years of their sentences.
Because Nathan Ybanez was treated more harshly than other defendants in Colorado who committed more serious crimes, more harshly than he would have been in other jurisdictions - and indeed more harshly than if he were convicted in Colorado today - the Court should conclude that his punishment is sufficiently disproportionate to his crime that it violates the Eighth Amendment and Article II, Section 20 of the Colorado Constitution.

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