Former University of Colorado lineman Alex Lewis, who is accused of assaulting an Air Force cadet on University Hill in May, is asking for a new preliminary hearing, alleging his former attorney misled him when he waived his initial hearing.
Lewis, 21, pleaded not guilty to the charges in the case Friday at his arraignment and was scheduled for trial on Jan. 21. He faces one count of second-degree assault -- a Class 4 felony -- and two counts of misdemeanor harassment.
But Lewis's attorney, Gary Lozow, filed a motion Friday asking Boulder District Judge Patrick Butler to grant Lewis a second preliminary hearing before a trial, despite Lewis waiving his hearing on July 1.
According to the motion, Lewis said his former attorney, Donald Brenner, told him that if he waived his preliminary hearing he would be allowed to plea to a misdemeanor charge.
But Lozow said prosecutors said they never made such an offer to Lewis.
"The defendant (Lewis), waived his rights to a preliminary hearing based upon the representation that said waiver would result in a misdemeanor disposition in his pending case," Lozow wrote. "The defendant (Lewis), who has no legal background, did not knowingly and intelligently waive his right to a preliminary hearing."
A preliminary hearing is held to determine if prosecutors have enough evidence to move forward with felony charges. Typically once a defendant waives a preliminary hearing they are no longer entitled to another, but the Colorado Supreme Court ruled that "the district court has the authority to restore a defendant's preliminary hearing where the district court finds that the waiver is ineffective," according to case law.
Brenner withdrew himself from Lewis's case due to a "conflict of interest" in August.
Shortly after that, Brenner had his license to practice law in Colorado suspended for a year and one day after for failing to properly represent two of his other clients in cases unrelated to Lewis's, according to court documents.
According to the Colorado Supreme Court, in one case, an investigation showed Brenner represented a defendant facing murder trials but only spent two hours with the client before going to trial and failed to call any witnesses other than the defendant.
In another case, Brenner represented a defendant facing unlawful sexual contact charges, but failed to ever interview the victim and made a one-minute long opening statement.
In both of those cases, Brenner's clients were convicted but had their trial results vacated on appeal because it was ruled Brenner failed to represent them properly.
A judge issued Brenner's suspension on Aug. 30, which Brenner began serving on Friday.
Brenner did not return calls for comment Friday.
Deputy District Attorney Ken Kupfner -- who has taken over as lead prosecutor on the Lewis case after former prosecutor Bruce Langer was appointed to a judgeship -- has 10 days to file a response to the motion. Kupfner did tell Butler he will be asking Lewis to waive part of his attorney-client privilege with Brenner so he could review the statements made in the motion.
Lewis -- an offensive lineman who transferred to the University of Nebraska in May -- has been attending school in Nebraska in between hearings and is currently free on $10,000 bond.
Boulder police arrested Lewis and CU quarterback Jordan Webb in the early morning hours of May 11 after witnesses said the men were involved in a fight on the Hill that left a cadet from the Air Force Academy unconscious.
According to a police report, witnesses said Lewis pushed 22-year-old Lee Bussey's head into a brick wall, then both Lewis and Webb pushed Bussey to the ground and began punching him.
Webb -- who originally was charged with second-degree assault -- took a plea deal in September. Webb pleaded guilty to third-degree assault -- a misdemeanor -- and was sentenced to two years of probation and 20 days on a work crew.