Dabbs v. People
486 P.2d 1053
Colo.
1971
Check Treatment
Mr. Justice Erickson

delivered the opinion of the Court.

The trial court’s denial of relief prayed for in a Crim. P. 35 (b) motion caused the defendant, William F. Dabbs, to seek relief by way of writ.of error. For the sake of clarity, the plaintiff in error will be rеferred to in the same manner in which he was identified in the trial court.

William' ■ F. Dabbs was charged with first-dеgree murder in a two-count information which alleged that he killed Ernest E. Love and Sarah A. Dаbbs, his wife; When he appeared with counsel at the arraignment, he entered pleas of not guilty and not guilty by reason of insanity, at ,the time of the alleged commission of. the offеnse.. .The sanity .issue, was tried to a jury which found- the defendant to be sane. Thereafter, follоwing extensive plea negotiations, the defendant entered a plea of guilty to the second count of the information and to the charge of murder in the second degrеe. Both counts of -the information related to the same transactions, and the district attorney, following the -entry of the plea of guilty to the second count, dismissed the first count. The trial judge, after obtaining a presentence report, sentenced the defendant to the Colorado State *275 Penitentiary. The term of the sentence ‍​​‌‌‌​‌‌​‌​​​​​​​‌​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌​​‌‌‌‌​‍did not exceed the statutory limits.

The record reflects that the defendant was represented by counsel at each stage of the proceeding and that he was fully advised of the consequences of his plea. Before the defendant’s plea was accepted, the court determined that there was a factual basis for the plea, in accоrdance with the requirements of Crim. P. 11.

The record also discloses that the grounds for post conviction relief were set forth in a motion that was filed by the defendant, pro se, more than six years after the defendant entered a plea of guilty to murder in the second degree. The post conviction motion was denied without an evidentiary hearing. The defendant, through his counsel, would have us refer the matter ‍​​‌‌‌​‌‌​‌​​​​​​​‌​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌​​‌‌‌‌​‍back to the trial court for an evidentiary heаring to determine whether the plea of guilty was voluntary and complied with all constitutionаl requirements. He contends that his plea resulted from his fear of the death penalty.-

Thе record eliminates the necessity for further hearings on the propriety of the cоurt’s accepting the defendant’s plea of guilty. An evidentiary hearing was not required in this cаse to make a determination of the issues created by the defendant’s Crim. P. 35 (b) motion. The American Bar Association Standards of Criminal Justice Relating to Post Conviction Remedies provide: “4.5 Summary disposition without plenary hearing; discovery

“(a) Applications for post conviction relief can appropriately bе decided on the merits without a plenary evidentiary hearing, and without the expense, risk, and inconvenience of transporting the applicants, ‍​​‌‌‌​‌‌​‌​​​​​​​‌​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌​​‌‌‌‌​‍if in custody, from the prison to thе courthouse. Such summary disposition is proper in all cases where there is no faсtual issue and where the case is submitted on an agreed statement of facts.”'

The defendant urges us to extend the holding in Jackson v. United States, 390 U.S. 570, 88 S.Ct. 1209, *276 20 L.Ed.2d 138 (1968), to the facts in this case. We find that the facts before us are controlled by North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The plea in the instant case was not coerced with threats of a possible death penalty, but resultеd from conscious plea bargaining that was carried out by counsel at the request of the defendant. Plea discussions, plea agreements, or just plain old plea bargаining, as it was once known, has now been approved. Brewer v. People, 168 Colo. 505, 452 P.2d 379 (1969); Maes v. People, 164 Colo. 481, 435 P.2d 894 (1968); Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967); Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967). American Bar Association Standards of Criminal ‍​​‌‌‌​‌‌​‌​​​​​​​‌​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌​​‌‌‌‌​‍Justice Relating to Pleas of Guilty, § 3.1, Propriety of plea discussions and plea agreements. Moreover, the American Bar Association Standards Relating to the Prosecution Function and the Defense Function spell out the duties of the prosеcutor and the defense lawyer in carrying out plea discussions:

“4.1 Availability for plea discussions.

“(a) The prosecutor should make known a general policy of willingness to ‍​​‌‌‌​‌‌​‌​​​​​​​‌​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌​​‌‌‌‌​‍consult with defense counsel concerning disposition of charges by plea.”

A reciprocal duty is placed upоn defense counsel by the Standards, but as a condition precedent, the defense lаwyer must first obtain permission and the consent of his client. American Bar Association Standаrds of Criminal Justice Relating to the Prosecution Function and the Defense Function, § 6.1, Duty to explore disposition without trial, and § 6.2, Conduct of discussions.

All of the sаfeguards which an accused is provided under the Constitution, under the Standards of Criminal Justice, and under our criminal rules were afforded the defendant in this case. See Moneyhun v. People, 175 Colo. 220, 486 P.2d 434.

Judgment affirmed.

*277 Mr. Chief Justice Pringle and Mr. Justice Lee not participating.