Dеfendant appeals the denial of his Crim.P. 35(b), now Crim.P. 35(c), motion to vacate three plea-bargained guilty pleas entered in prior casеs. He contends that the trial court failed adequately to advise him of the nature and elements of each offense as provided by Crim.P. 11. We аffirm.
A guilty plea which is not entered voluntarily and knowingly is obtained in violation of due process guarantees.
See People v. Mason,
Under consideration on this appeal is the validity of two pleas entеred in 1968 and one entered in 1972, each a product of a respective plea bargain.
The First 1968 Case
Crim.P. 11(a) in effect in 1968 provided that:
“The court shall not accept the plea of guilty without first:
(1) determining that the plea is made voluntarily with understanding of the nature of the charge, and (2) explaining fully to the defendant his right to trial by jury, his right to counsel, and the possible penalty provided by statute for the offense charged.”
Here, defendant entered a plea of guilty to the chаrge of burglary. At the providen-cy hearing his attorney informed the court that defendant had been advised of the penalty provided by the statute, аnd of his right to trial by jury, his right to representation by counsel, and his right to call witnesses on his own behalf. The court then asked defendant if he understood what was hаppening and defendant replied affirmatively. Thus, there was an adequate basis in the record to support a conclusion that there had been full compliance with Crim.P. 11(a)(2).
The dispositive issue, therefore, is whether defendant entered the plea here in question “with understanding of the nature of the charge” as required by Crim.P. 11(a)(1). As to that issue, the entire record, including the portion relating to the Crim.P. 35(b) hearing, must be examined.
See People v. Alvarez, supra; People v. Keenan,
The record here shows neither that the trial court read the charge to defendant *1293 nor that defendant’s attorney advised defendant as to the nature of thе charge. However, the record does establish that at the time of the providency hearing defendant had an extensive criminal history which included previous burglary convictions in Colorado and Illinois; that prior to entering his plea defendant expressly waived any reading of the charges; that defendant, in connection with his application for probation, admitted committing the offense; and that at the Crim.P. 35(b) hearing defendant stаted that when he entered his guilty plea he “knew what a burglary was.”
Under these circumstances, we perceive no error in the trial court’s conclusion that when defendant entered his plea he understood the nature of the charge of burglary. People
v. Simms,
At the time here at issue, there was no ritualistic requirement that defendant be advised spеcifically of each of the elements of an offense to which he admitted his guilt.
Ward v. People, supra; Martinez v. People,
The Second 1968 Case
In this case, defendant pleaded guilty to the charge of assault with a deadly weapon. At the providency hеaring the defendant waived reading of the information. The trial court asked defendant if he understood the charge and if he had had an opрortunity to read it and have it explained to him by his attorney. Defendant answered in the affirmative to both questions. The court advised defendant of his right to trial by jury, to representation by an attorney, and that the charge of assault with a deadly weapon carried a penalty of one to five years imprisonment. A witness testified as to the incident, thus providing a factual basis for the charge.
From the above, we conclude that the сourt properly accepted defendant’s plea as voluntarily and knowingly entered; consequently, we hold that there was no violatiоn of Crim.P. 11(a).
The 1972 Case
The version of Crim.P. 11 applicable to this case specified in detail the duties of the trial judge and the rights of the accused regarding thе entry of a guilty plea, including the requirement that “defendant understands the charge against him.”
See People v. Gonzales,
In this case, the record reveals that in August 1972 defendant plеaded guilty to the charge of simple robbery. In accordance with the specific requirements of Crim.P. 11, the court ascertained that defendant was not under the influence of drugs or intoxicating liquor, that he understood his right to trial, that no force or threats were used, and that his plea was voluntary. The court advised defendant that the possible penalties were from two to fourteen years in the penitentiary. Then, the court explained to defendant the nature of the charge in the words used in the charge and advised that if the case were to go to trial the prosеcution would have to prove each and every allegation of the charge, and that defendant would have the right to testify or not to testify in his own behalf. It was explained that sentencing was within the province of the court and that the court is not bound by any agreements or promises. Dеfendant indicated that he understood each of these advise-ments. Furthermore, at defendant’s Crim.P. 35(b) hearing the attorney who represented him аt the providency proceeding testified that he spent a lot of time discussing with defendant his prospects if the case were tried.
In receiving the plea the court found that defendant, “made truthful and knowing responses to the questions propounded to him .... ” We agree with the trial court.
*1294 Defendant argues that the trial court failed adequately to explain the nature of the charge or the elements thereof. More spеcifically defendant contends that the trial court inserted an element not present in the statute, to wit, that defendant committed the assault “by force and intimidation” whereas the language of C.R.S.1963, 40-5-1(1), is “force or intimidation.” (emphasis added) We see no error.
While the rule in
Boykin v. Alabama, supra,
requires that the defendant understand the nature and elements of the crime charged for a guilty plea to be deemed knowingly made, it does not require the trial court to follow a ritualistic formula in ascertaining defendant’s knowledge.
People v. Lambert,
Moreover, аn oversight on the part of the trial court in the providency hearing may be cured if the record as a whole discloses evidence of undеrstanding and knowledge.
See Keenan, supra.
The record as a whole is sufficient to demonstrate that defendant made a voluntary and understanding plea for which there was a factual basis. Under these circumstances, we perceive no prejudice to defendant flowing from the trial court’s inadvertent usе of the phrase “force and intimidation” as opposed to the statutory language “force or intimidation.”
See Rowe v. People,
Thus, relative to the 1972 case, we find no violation of Crim.P. 11.
Judgments affirmed.