The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Rudy Anthony BERNARD, Defendant-Appellee.
No. 80SA456.
Supreme Court of Colorado, En Banc.
Jan. 10, 1983.
As Modified on Denial of Rehearing Jan. 24, 1983.
656 P.2d 695
HODGES, Chief Justice.
Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant. Larry Steven Pozner, Denver, for defendant-appellee.
IV.
The defendant last argues that his indeterminate sentence constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. He contends that his constitutional rights would be violated if he were made to serve a life sentence without being given treatment directed toward aiding him to overcome the finding of the district court that he presents a continuing danger and threat of bodily harm to members of the public. We do not agree with this assertion.
Nothing in the constitution requires that criminal defendants receive treatment, and further, a life sentence has been held not to amount to a per se violation of the prohibition against cruel and unusual punishment. People v. Lake, 195 Colo. 454, 580 P.2d 788 (1978). The legislature is entitled to deference in devising a punishment scheme “so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved....” Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 875-876 (1976); further, protection of society alone may justify incarceration. See generally O‘Connor v. Donaldson, 422 U.S. 563, 582-583, 95 S.Ct. 2486, 2497-2498, 45 L.Ed.2d 396, 411 (1975) (Burger, C.J., concurring). The fact that the legislature has chosen penal goals of protection and restraint rather than treatment does not establish that the defendant‘s confinement is inconsistent with existing standards of decency or creates unnecessary suffering serving no legitimate purpose. Gregg v. Georgia, supra; compare Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Since the sex offenders act contemplates restraint for individuals exhibiting dangerous criminal conduct, with protection of society as its major goal, Trueblood v. Tinsley, supra, restraint without treatment is not unconstitutional.4 We hold that indeterminate sentencing under the C.S.O.A. does not constitute cruel and unusual punishment. See, e.g., Raullerson v. People, 157 Colo. 462, 404 P.2d 149 (1965); Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964); Specht v. Tinsley, 153 Colo. 235, 385 P.2d 423 (1963) (reversed on other grounds, Specht v. Patterson, supra).
The judgment of the district court is affirmed.
QUINN, J., does not participate.
The trial court granted defendant Bernard‘s motion pursuant to
Defendant Bernard was charged with burglary on four separate occasions prior to 1977 and pled guilty to each of those charges. The defendant was again charged in 1977 with second-degree burglary and, in addition, with four counts under the habitual criminal statute for the above mentioned burglaries. In 1978, while the 1977 charges were still pending, the defendant garnered his sixth burglary charge.
After this final charge, the defendant entered a comprehensive plea agreement whereby he pled guilty to the 1977 burglary charge and to two of the habitual criminal counts, based on a 1975 and a 1973 burglary conviction. The remaining habitual criminal counts and the 1978 burglary charge were all dismissed. The defendant was thereupon sentenced to a term of 25 to 35 years as an habitual criminal.
Two years later, in May of 1980, defendant moved for reduction of sentence pursuant to
The rationale of People v. Pauldino, 187 Colo. 61, 528 P.2d 384 (1974), is fully applicable here. In that case the trial court:
“... did not specifically explain in detail the elements of the crime of burglary on which defendant admitted the conspiracy count. Nevertheless, the information was read to him in which the count charges he and other defendants did ‘willfully break and enter, and without force enter, the building * * * with intent then and there to commit the crime of theft.’ No more full explanation of the substantive crime could be given than the charge itself and defendant answered ‘Yes’ to the court‘s question whether he understood the charge to which he was pleading.”
Accordingly, this court refused to set aside defendant Pauldino‘s plea of guilty.
We would also point out that under the 1978 plea agreement, Bernard received a substantial benefit by pleading guilty to the 1973 charge of burglary. As a result, the People agreed to dismiss two other counts under the habitual criminal statute as well as the 1978 burglary charge. Bernard thereby avoided a probable life sentence under the habitual criminal statute. Under these circumstances, the defendant‘s current request for relief rings hollow. If he ever had a serious objection to the 1973 plea, this fact should have been made known long before he used the plea as a tool for avoiding a more serious conviction. As we stated in People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973), under a similar fact situation, it would be the height of sophistry to vacate the defendant‘s plea of guilty.
The following cases relied upon in the defendant‘s brief are clearly distinguishable and none are applicable here. People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972); People v. Cumby, 178 Colo. 31, 495 P.2d 223 (1972); People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974); and People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974). None of these cases involved a burglary charge. In Cumby and Sanders, the trial court failed to explain the technical terms of “premeditated malice aforethought” and “assault to rob,” respectively. Further, in the latter case the defendant testified that he did not understand the elements of the crime he was charged with and that he was only following his attorney‘s instructions. In People v. Brown, supra, the trial court admitted on the record that no explanation was given defendant on the elements of the charge. And in Colosacco, where the defendant was charged with possession of counterfeit checks, the trial court completely omitted any reference to the critical element of intent to utter and pass the notes with intent to defraud.
We do not decide here whether the 1973 plea of guilty, standing alone and timely challenged, should have been vacated.
The judgment of the trial court is reversed.
DUBOFSKY, J., specially concurs.
QUINN, J., does not participate.
DUBOFSKY, Justice, specially concurring:
I specially concur in the judgment. On December 20, 1982, a majority of this Court ruled in
Although the court here did not specifically advise the defendant of the elements of the ulterior crime of theft at the time the 1973 plea to burglary was taken, the defendant reconfirmed his 1973 plea at a providency hearing in 1978. By then, he had been informed on three occasions of the elements of burglary and theft. Because of the particular facts of this case, I think it is distinguishable from Watkins v. People, and therefore I concur with the result reached by the majority.