People v. Chippewa, 751 P.2d 607

People v. Chippewa

751 P.2d 607

Colo.

1988

Check Treatment

*1 of the State of PEOPLE Colorado, Petitioner, Woodard, Gen., Atty. Duane Charles B. CHIPPEWA, Respondent.

Thomas Howe, Deputy Gen., Atty. Richard H. For- Gen., man, Jr., Early, Norman Sol. S. Dist. 85SC296. No. Coats, Atty., Appellate B. Nathan Chief Colorado, Supreme of Court Denver, Deputy Atty., petitioner. Dist. for En Banc. Vela, Defender, F. David State Public 8, 1988. Feb. Willett, Levy, Claire Jonathan Deputy S. Defenders, Denver, State Public for re- spondent.

LOHR, Justice. granted We certiorari to review the deci Appeals sion of the Colorado of in Court Chippewa, 713 P.2d 1311 App.1985), which held that the district in denying court erred the defendant’s mo tion to to at first-degree tempted murder. court of held that had not been knowingly voluntarily entered as re quired process by due of law because the given district court had the defendant erro concerning neous information minimum sentence. The court had advised the minimum sentence first-degree attempted murder available extraordinary aggravat the absence ing higher circumstances rather than applicable minimum sentence to the defend ant, who was committed granted the crime. We certiorari and now judgment ap court affirm the decision, however, peals. base our We conclusion abused refusing permit its discretion with find it drawal of We therefore unnecessary to reach whether the defendant’s was entered consistent with law, process express we due question. opinion on that I. defendant, Chippewa, Thomas

charged Arapahoe District County Court counts attempted first-degree with two murder, first-degree assault, two counts of firstrdegree burglary, one each of count *2 aggravated robbery, conspiracy, penalty range, the of com- elements the offense crime, waiving. mission of a violent and two counts rights and the he was The court exchange In criminality.1 of habitual for accepted guilty plea, presen- the ordered a to single the a defendant’s investigation, a tence and set date for a first-degree murder, charge attempted of hearing. sentencing agreed felony, to class two the dis- presentence report, The dated October charges, miss all other and reserved the 18,1983, showed that the defendant was on right of to recommend a sentence sixteen parole a North from Dakota sentence for years imprisonment. manslaughter when he committed the felo- on providency hearing August At the ny pled guilty. to which he Because of the questioned the district court counsel status, parole defendant's the district court prosecution for the defense and the to required impose was to a sentence in the ascertain whether the defendant was sub- aggravated range extraordinary under the ject mandatory aggravated to a sentence mandatory sentencing statute. 18-1-105, under section 8B C.R.S. (1986).3 18-l-105(9)(a)(II), 8B C.R.S. Pri- § agreed attorneys that sentencing, or to the defendant moved to eligible presump- was for in the guilty plea, alleging withdraw his that he range.2 tive The court then advised the agreed would not bargain have to the presumptive range that statutory requirement had he of the known sentencing for the crime to which he was beyond for pleading guilty eight twelve to sumptive On November The court also stated it found ex- the court denied the defendant’s motion4 mitigating circumstances, traordinary him eighteen years sentenced im- years, be as four could low as prisonment. if it extraordinary aggravating found cir- cumstances, appealed The defendant district high sentence could be as twenty-four years. court’s refusal to allow him to The district court found plea. defendant understood the The court of reversed the charges greater burglary 1. The arose twice the nor from the than maximum less than 22, 1982, August Hailing residence of Anita one-half the minimum term authorized in the during Hailing which and Jake Jaramillo were range presumptive punishment for the seriously injured. The basis factual offered at offense. providency hearing that the indicated de- (1986), provides 18-l-105(9)(a), 8B C.R.S. §3. fendant, together companions, with two female pertinent part: residence; Halling’s bludgeoned broke into both Hailing; Jaramillo and necks cut the of both presence any one or more of the follow- victims; Halling's posses- took a number of ing extraordinary aggravating circumstances sions. court, require the shall if it sentences the de- incarceration, fendant to to sentence the de- 18-l-105(l)(a)(I), (1986), 2. Under § 8B C.R.S. greater term fendant to a than maximum any person felony for sentenced for a commit- presumptive range, in the but more than 1, 1979, July July ted after and before twice the maximum term authorized in the range presumptive felony class two presumptive punishment for the eight years plus year pa- to twelve one felony: 18-1-105(6), (1986), requires role. § 8B C.R.S. impose the court a definite sentence to (II) parole The defendant was on for another applicable presumptive within incarceration range felony time of at the commission felo- (1), set forth subsection ny.... extraordinary mitigat- unless it concludes that ing aggravating present, are circumstances 4. district ruled that the advisement of are based evidence in the record of the possible penalty adequate under sentencing hearing presentence and the 11 because the court told the defendant that he support port, and different which up twenty-four could receive sentence of purposes better serves the respect code with explained also The court that it had no forth in as set section parole information about the defendant’s status such If the court finds extraordi- 18-1-102.5. providency hearing at the consciously it because circumstances, nary aggravating mitigating or knowledge insulates itself from about a defend- may impose it a sentence which lesser or prior record until a defendant's trial has greater range; presumptive except than the completed. been that in case shall of sentence be the term (“before sentence, defendant’s conviction on the basis that the the court should allow district court’s failure to inform him of the defendant to withdraw the for any applicable effect of his status on the fair and reason unless the minimum sentence meant that the defend- has been substantially prejudiced by re upon requisite knowledge ant did not have the liance plea”). A mo consequences tion to of his The court of is ad *3 appeals dressed to plea concluded therefore that the the sound discretion of the knowingly Gutierrez, court. People was not entered v. 622 P.2d at 559; required by People Martinez, process 172, as due v. 188 law. The Colo. at 928; 533 P.2d People court remanded the case to the at Riley, district v. 187 Colo. 262, 265, 1312, (1975); court with directions to 529 P.2d guilty vacate the 1313 Maes 570, plea, original charges, People, 574, 457, reinstate the v. 155 Colo. 396 P.2d (1964). plea allow defendant to enter his to We will not overturn the denial charges. of a People sought guilty plea those The motion to a certiora- un less appeals' ri review of the court of the trial court decision. abused that discretion. Gutierrez, People 559; v. 622 P.2d at Peo granted opin- We certiorari and issued an Colo, Martinez, ple v. at 8, 1987, affirming ion on June judg- Colo, 928; People at Riley, at appeals. ment of the court of We conclud- 1313; 529 P.2d at Maes v. 155 Colo. ed that the court of was correct in at 396 P.2d at 459. holding plea that the defendant’s was not knowingly voluntarily, accepting made Prior to plea and we guilty attempted first-degree murder, held as well that the to trial court abused its denying discretion in the trial court an pro- the defendant’s mo- conducted extensive vidency hearing. hearing tion to withdraw At People peti- that the court explained rehearing, granted detail, tioned for and we that sentences petition. by We as well summarized ap- now conclude that the the court of trial peals: court abused its refusing discretion in to

permit the plea defendant to withdraw his Addressing penalties and conse- and that it is unnecessary to reach the quences plea, of defendant’s constitutional of whether the de- (1) court advised him that: he could plea fendant’s and voluntar- sume that the sentence would be within ily required entered as by process due range eight years; (2) to twelve if law. We original therefore withdraw our mitigation, the trial court found the sen- opinion and issue this one in its stead. (3) years; tence could be as low as four extraordinary ag- trial court found circumstances, gravating the sentence II. high could be as twenty-four years; as 32(d) provides for a motion (4) despite People’s to intent seek to before sen up an sentence of to sixteen imposed. tence is To warrant the with years attempt and defense counsel’s imposi drawal of a before the persuade impose the court to a sentence sentence, tion of a defendant has the bur presumptive range, within the the sen- establishing den of a “fair and reason” imposed tence to be was within the Gutierrez, for the People withdrawal. court’s sole discretion. (Colo.1981); P.2d People v. Chippewa, at 1313.5 Martinez, 188 Colo. (1975). III ABA judge See Standards The trial was unaware at the time 14-2.1(a) (2d 1980) Criminal entry Justice ed. that the defendant had § explained possible penalties presumptive range. 5. The court that is called a That means follows: you presume that can that if a sentence was imposed Chippewa, you plead THE it would be within COURT: Mr. bracket —8 charge years. impose provides to this the Court could The law also that the mini- years. sentence of from 8 to 12 In Colorado mum sentence need not be 8 If the Court parole when the was com The district court’s been on offense advisement that the years could sentence be as little as four that, therefore, mitted presume and that defendant could aggravated range mandated eight his sentence would be in the twelve 18-l-105(9)(a)(II), 8B C.R.S. statute. See § gave year range every rea- responses son to believe that he could a sen- receive questions by the and defense counsel to ineligible tence that was to receive. The were un judge they indicate that as well argue, however, that this misinfor- of the defendant’s status. aware prejudice mation did not the defendant be- specifically The defendant therefore imposed cause the court fact impose by the court that it could eighteen assert eight years sentence within the to twelve a court should allow withdrawal presumptive and if the court found sentencing only before if the trial court circumstances, mitigating precluded by higher mandatory would be *4 imprison years as low as could be four requirement sentence from im- minimum nothing There is in record to ment. the posing a sentence that it would otherwise defendant, suggest that the the time he at appropriate. By imposing consider a sen- plea, his had or was entered been advised years greater required tence six than that aggravated that a in aware the statute, here, according by the the court to parole range was mandated his because of demonstrated that its exercise Indeed, all status. indications in record at the of discretion lower end of the sen- contrary. range People tencing are to had not Alexan been constrained Cf. der, 1304, 1308-09 (Colo.1986)(de minimum. subject ag who is in fendant to sentence People’s argument per not range gravated parole because he was sought suasive. withdrawal felony at time commission of is entitled sentenced, of his before he was require to notice reasonable and to and the district court should not have con prosecution prove status); parole to his impose sidered the sentence it intended to Lacey, denying as a reason the defendant’s 1986) (same, extraordinary aggravat motion to withdraw his issue at ing probationer circumstance is status aas the time court considered the motion felony). at time commission of was whether defendant had established mitigation presump- found in the case or matters that that a sentence should not exceed the favor, your mitiga- you were in tion, if the found But what Court tive need to understand is sentencing then a minimum sentence could be 4 this: is the Court’s function. The years. provides Attorney’s argue The law if also the Court Office District they can whatever to, aggravated they They were to find that this case in its but was want don’t call the shot. nature, to, might give then a maximum sentence would not be like but the law doesn't them the it, years or, pardon power your attorney. They to limited a maxi- do nor does me—but to — Court, go high years. viewpoints mum sentence could as 24 offer addressed to the and then, mitigation ag- weighs the Court Unless gravation, found either or that’s what the Court does it all range you a sentence would be within the calls it. Do then understand? years. you of 8 to talking Do understand what I'm THE Yes. DEFENDANT: you any about? Do THE COURT: have confusion about DEFENDANT: THE Yes. that? Now, you THE COURT: Attorneys listened the District THE DEFENDANT: No. to they Though attempt have that at a indicated THE COURT: will to sentencing hearing they going presumptive range to ask are exceed the and ask the Court aggravated, impose years, to find that Court this case is to sentence of 16 whether the not, you Court ask the not to sentence within the that or at the Court does will know token, range sumptive years, they By for a maximum of but same moment know. the same impose just to exceed it rather a sentence of 16 because the ask for maximum sen- you they years say- Do understand what tire tence doesn’t of 16 mean the sentence will ing? of 16 be a maximum The Court could years go up anything THE DEFENDANT: to Yes. still in between— attorney pointed anything you fully Your THE COURT: has out— or in between 12 and 24. Do that, you sentencing Chippewa? and I think will learn —in understand Mr. hearing many persuade the endeavor to Court THE DEFENDANT: Yes.

gil reason for withdrawal of his a fair I. Moreover,

guilty plea. People provide providency hearing, At the the district authority suggestion for their that the Chippewa minimum that the standard for withdrawal before sentence he could was years, receive four sentencing should whether the be mandat- mitigating circumstances were found. The sentence, ed minimum of which the defend- defendant was also advised that the maxi- advised, preclude ant would mum twenty-four imposing trial court from a sentence that it years, if aggravating circumstances were appropriate. otherwise would consider Thus, found. when the defendant entered guilty plea, he was aware that he could probation report When the was is up twenty-four be sentenced years im- sued, parole the defendant’s status became prisonment. After the providency hearing, known to counsel and the court. The de the district court presen- discovered promptly fendant then moved to withdraw report tence the defendant was on the basis parole felony for another at the time of this possibility of a sentence of less than twelve offense, subject and was years foreclosed, completely contrary range pursuant to section given to the advisement that he had been 18-l-105(9)(a)(II), 8B C.R.S. Be- by the court. The record does not reflect status, cause of the that the prej would have been required impose district court was in any way by udiced withdrawal of the twenty- twelve to *5 guilty circumstances, plea. Under these four actually defendant re- we conclude that the defendant established eighteen years’ ceived a sentence of impris- a fair and reason for withdrawal of his onment. guilty plea and that the trial court abused of majority’s holding effect the is to admittedly its in denying broad discretion mandate a technical advisement under plea.6 motion to withdraw the 11, requiring spe- the trial court to affirm judgment We the of the court of cifically advise the defendant if he appeals. parole, probation, bond, on were un- confinement, escapee der or an at the time

VOLLACK, J., dissents. offense, he committed an his sentence mandatorily greater would be than the ROVIRA, JJ., join ERICKSON and sumptive under section 18-1- in the dissent. 105(9)(a)(II), (1986). 8B I C.R.S. dissent I given because believe the advisement VOLLACK, Justice, dissenting: this adequately case informed the defend- majority holds that it was an abuse consequences ant of the of his of discretion for the trial court to refuse to permit to withdraw his A. guilty plea, and affirms ap- the court of peals on that basis. ruling Because do not be- A defendant’s aon motion to with- lieve that the trial court abused its discre- draw a lies within the sound tion, and further believe that the defend- discretion A plea trial court. of plea was voluntarily knowingly and should not be set aside “the de- entered, I respectfully dissent. fendant understood the nature and the ele- today ily, 6. express opinion We base our decision on abuse of dis- and we no on the correct- Therefore, principles. plea cretion we need not ness of its conclusion that the defendant’s question constitutionally reach the constitutional of whether the was invalid because it was not plea knowingly knowingly voluntarily. was entered and entered and Even See, Bossert, voluntarily. e.g., People though accepted v. 722 P.2d we certiorari to consider the 998, (Colo.1986) (court issue, appro- 1004 will not address constitutional we do not believe it question priate constitutional unless it is essential to to address that issue because the court of case). appeals judgment resolution of The court of ad- can be sustained on a noncon- ground. dressed the constitutional unnecessar- stitutional 612 (1880)). fact, crime which he Mo. 535 In defendant

ments of the with was charged penalty possible repeatedly by as well as the trial court guilty, plea he entered the requested imposition had requirements as to whether the basic aggravated range, a in the sentence plea intelligently prosecution requested that even if the a Bradley met.” v. made were sentence, sixteen-year the trial court could 875, (1971). Colo. 485 P.2d 876-77 give twenty- still a twelve If requirements these are met a factu- “Post-plea apprehension four plea plea, al basis exists for the should sentence, garding anticipated even if it Hutton, aside. People not be set v. occurs well before is not suffi- 388, 391, (1973). Colo. 517 P.2d compel judicial cient to exercise dis- Although defendant does have an permit plea cretion to withdrawal right guilty plea, absolute Hunt, guilty.” People Cal.App.3d plea can be withdrawn if defendant Cal.Rptr. 731, showing request makes a that denial The result would be different if a defend- justice. Gutierrez, will subvert ant is misinformed as to the maxi- (Colo.1981). For exam- mum If a sentence. defendant were sub- ple, appro- a motion to is ject longer to a maximum sentence than priately granted when the defendant was advisement, the term at his stated surprised entering or influenced into would not be entered. No such or plea, where his “was entered where, problem here, presented is misconception mistake under or states advisement the correct maximum charge” through “fear, nature of the or sentenced fraud, misrepresentation.” or official Peo within that Chavez, ple v. There or misappre- mistake 1986). See, State, e.g., 498 So.2d Goff charge hension as to nature of (When (Fla.App.1986) defendant re case; fear, fraud, there was no jail proba ceived a than rather misrepresentation causing the trial court’s tion, record, prior due to his criminal *6 ruling an to be abuse of discretion. Hav- court held defendant “knew or ing that the underlying concluded facts prior should have known of his own record present motion to withdraw do not an plea.... at the time he Any entered the court, by abuse of discretion the trial I failure to communicate was defend [the would address whether ant’s], state’s, not his counsel’s or the guilty plea knowing voluntary. any misunderstanding facts was by caused by any Goffs silence and not misrepresentations

official B. or miscalcula 1036); tions.” Id. at ex rel. State Reece v. process requirements, To meet due entry Campbell, (Mo.App.1977) 551 S.W.2d 292 guilty plea knowing of a must be and vol (A appropriately permitted defendant is Leonard, untary. People v. 673 P.2d guilty plea has reasonably (Colo.1983). providency hearing, At a relied on judge's statement: must understand critical “ give you ‘if I I probation, do not would elements of crime and the conse years probably you to five in the quences guilty plea. People Wade, of a ” actually penitentiary,’ and was sentenced (Colo.1985). to twenty-five (emphasis Id. at 299 11 requires that the defendant “understand in original)). possible penalty penalties.” Crim. 11(b)(4), (1984)(emphasis P. C.R.S. particular presented 7B add facts here do ed). ruling by not render A “formalistic the trial court’s an recitation abuse trial judge hearing Chippewa’s plea providency discretion. was not in- at a is not a by requisite.” duced promise a “false of minimum constitutional v. Cani punishment,” plea no, rendering involun- 181 Colo.

tary. (quoting Stephens, Id. State v. A must meet constitu- supportive reviewing looks of the conclusion that the de- muster, and a tional guilty plea to determine fendant did enter his or her as a whole to the record know Wade, understanding^.” a defendant’s whether record, entire ing voluntary. 708 P.2d at 1370. “[T]he relating to the Crim. including portion The record also demonstrates that de- 35(b) plea-bar vacate hearing P. [motion fense counsel discussed with his client the examined.” gained guilty pleas], must be possibility al- Moore, 636 P.2d People v. though it is not clear from the record appropriate of the factors (Colo.App.1981).One Chippe- defense counsel knew of whether criminal is a defendant’s for consideration parolee.3 status as a wa’s See history. Id. at 1293.1 (Colo.1985) Cabral, (two Lacey, 723 P.2d In deciding validity guilty plea factors 1986), that a sentence was we ruled counsel, competent defendant had are that incorrectly had illegal when the trial court charges counsel had discussed the and that possible to the the defendant as advised effect of the with the de- The defendant in La minimum sentence.2 fendant). The defendant’s crimi- extensive possible correctly informed of the cey was nal record and his discussions his at- with eight maximum torney mandatory sentencing about should possible the court misstated the years, but judge’s be viewed the context of the The court advised the minimum sentence. record. advisement believe that two-year receive a defendant that he could lead to the conclusion that the these factors the minimum sentence was sentence when and intelli- years, parolee due sta actually four gently made. by imposed affirmed the sentence tus. We court, finding that the defendant II. possible adequate had received notice of sentencing. at 112. I would enhanced Id. court did not have the district apply reasoning the same to the facts here: providen- report at the time of the Chippewa correctly as to the advised being cy hearing. by Without de- twenty-four possible maximum sentence of prosecution, the counsel or the trial fense years, though even the minimum as stated known of the defend- court could not have judge proved later incorrect. parolee The trial court did status. parolee fact that his status as a altered the aggra- presence specific not know of minimum render sentence does not vating circumstances at the time plea involuntary. hearing. proce- The standard providency proceedings is to first hold dure criminal providency transcript Based on the *7 hearing, defend- providency at which the hearing, I had suffi- believe the defendant accepted is and he is ad- knowledge penalties to cient stage penalty next vised subject. which he was record of “[A] compli- receipt presentence is the court’s providency hearing demonstrating port provides which the court with informa- ance 11 should be deemed with Crim.P. (Del.1969) State, probation on at defendant that ‘"since he was 1. See Brown v. 250 A.2d 503 (Where offense, sought his defendant to withdraw in all the time of the commission of the Supreme involuntary, likelihood, as the Delaware impose a sen- if the court were to noted, along other considerations: Court with tence, be in the it would have to quite apparent that he knew what he was ‘It is range.”’ 112. Id at record, Furthermore, long doing. criminal charges of murder and man- which includes judge: "We had 3.Defense counsel told 504.) slaughter, supports Id. at this conclusion.” disposition in this case that included one other sentencing explained to Mr. where arraignment 2. and at defense At facing mandatory Chippewa had the Court been court that the defend- counsel advised the trial give more than he would have had to probation time of the at the ant had been top is true in of the sentence. That not end counsel of the offense. Defense commission this case.” that he had advised the also told the court regarding particular tion say I am authorized that Justice ER- marital, history, join ICKSON and Justice psychological, criminal ROVIRA dissent. medical, family history, per- and other

tinent information. third final

stage hearing ais at which the defendant is

actually It sentenced. not until this proceedings

stage of the that the court has specific

access to information which deter- Colorado, aggra- mines the existence or absence of PEOPLE of State of Plaintiff-Appellee, vating mitigating factors. v. “The court must be concerned with reali Lesh, ty not ritual.” v. CAGLE, Troy Roger 1362, (Colo.1983), P.2d appeal Defendant-Appellant. af remand, (Colo.App.1986) ter 720 P.2d 999 No. 86SA169. Canino, (citing People 207, v. 181 Colo. Colorado, Supreme Court of (1973)). itWhile En Banc. may practice be better advise general in a ag manner of the Feb. 1988. gravating 18-1-105, factors of section I do Rehearing Denied March 1988. not believe that the court’s trial failure to Appeal 31, 1988. Dismissed May do so in this case renders the defendant’s See 108 S.Ct. 2009. guilty plea involuntary or uninformed. prevail should not over sub “[F]orm Cushon,

stance.” (Colo.1982). See Wilson (Colo.1985)(guilty plea

P.2d 792 held valid

where penal defendant was sentenced to

institution, being placed rather than hospital, though

state even trial court did expressly him providency advise at incarcerated).

hearing By could be language,

its require does not specific majority advisement which the

has, effect, required here. See

Adrian, (Colo.1985) (Guilty valid, though held even advisement specific “not as it should have

been” because it did not advise the defend-

ant that he could be confined to a state

prison; defendant “was advised in sub-

stance, although 48); not in form.” at Id. *8 Cuskon,