People v. Muniz

(1978), Appeals support of that a child children. As the Court held to minor we noted, post-minority “dissolution court” order have that restriction has been elimi child, support for a disabled even after the nated from dissolution of Colorado’s mar Moreover, age riage child the of statute. the modern majority. has attained trend Nevertheless, recognize continuing jurisdiction the father maintains is to the of contrary great weight to the of the dissolution court. Of the eleven states Wilkinson is Act, not be that have the four have authority adopted pro and should followed. by by judicial vided indicated statute or nothing We find in the Dissolution Act to court has decision a dissolution contin suggest authority that a court’s to order a jurisdiction uing post-minority sup to order parent is limited the pay support child for a port disabled child. Ariz.Rev.Stat. Indeed, age of the history child. (amended 25-320(B) (1976) 1980); Ann. § legislation marriage dissolution of in this (Smith-Hurd Ill.Ann.Stat. ch. § opposite state leads us to the conclusion. In 518.57, 1980); (subd. 518.54 Minn.Stat. §§ ’53, 46-1-5, Assembly C.R.S. the General 2) (1982); Maberry, 183 Maberry v. Mont. empowered in dissolution courts actions to jurisdic 598 P.2d 1115 Other order minor children In support only. for tions which have not enacted Uniform amended to the statute was authorize See, support e.g., Act also view. Kamp this courts support to order for “children de- Fagan Kamp, (Wyo.1980); v. parents pendent upon parent for Fagan, (Fla.Dist.Ct.App. So.2d Act, support.” ch. Divorce 1980); Dehm, (Utah Dehm v. Assembly Sess.Laws 223. The General Lomheim, 1976); McBride v. S.D. thus deleted the restriction “minor” chil- 144 N.W.2d 564 Wilkinson, dren. supra, In Wilkinson held, construing Court Appeals contentions remaining The father’s are statute, 1958 amendment we Accordingly, without merit. affirm the word should not be read Appeals. “minor” back into decision the Court of statute. In divorce statute ROVIRA, J., only. in the result concurs replaced by the Uniform Dissolution The current Marriage support Act. child

provision support of the Act does limit children,

to minor authorizes but the disso- for support

lution court to order a “child of considering

the marriage” after several fac-

tors, including the financial resources

child physical and his and emotional condi- Colorado, The PEOPLE of the State support tion. also find for our conclu- We Plaintiff-Appellant, Act, sion in 14r-10-116 of the section “appoint authorizes the dissolution MUNIZ, Defendant-Appellee. Waldo Paul attorney represent an of a interests Colorado, The PEOPLE of State dependent minor or child with to his Plaintiff-Appellant, custody, support, (emphasis and visitation” added). for the By providing representa- tion of child who dependent is not MONTOYA, Joseph Thomas minor, Assembly recog- thus the General Defendant-Appellee. nizes a claim propriety post-mi- nority support marriage in a dissolution 82SA297, Nos. 82SA251. action. Colorado, Supreme Court In courts have held that a past, many Banc. En proper proceed- action is not the dissolution 22, 1983. Aug. support adult ing to enforce continued of an Annot., 1084 (1946). child. 162 A.L.R. however, decisions, courts

some of these language limiting statutory

were bound

1379 Moore, Atty., Dist. 0. Otto Tooley, Dale appeared fendants first before the Denver Wunnicke, Chief Brooke Atty., Dist. arraignment.8 Asst. Court for joint District Denver, for Dist. Atty., Appellate Deputy arraignment commenced the plaintiff-appellant. asking Montoya’s attorney he of the informa- would waive Public Vela, Colorado State David F. “Yes,” attorney responded tion. Holland, Defender, Deputy State Brian plead that his client would guilty indicated Defender, Denver, for defendant- Public to commit bur- conspiracy Muniz. appellee exchange dismissal of the in for the glary Merritt, Denver, for defend- E. Jeralyn remaining attorney counts. The Muniz ant-appellee Montoya. waived the of the information also QUINN, Justice. disposition. proposed and concurred the In this consolidated the appeal1 then advised the defend- jointly The court 4(b), pursuant sepa- to C.A.R. from appeal trial, a a to have they ants that had to judgments rate entered the district court by behalf, to on and the testify witnesses their in postconviction proceedings under Crim.P. court also in- of counsel. The assistance 35. The court vacated the 1964 convictions potential of the sen- formed the defendants defendants, Muniz and two Waldo Paul receiving nega- charge. tence for the After Montoya, resulting from Joseph Thomas from defendants to responses tive both the pleas conspiracy their to crime of guilty plead was them to anyone forcing burglary. pleas to commit Because the any questions they and whether had guilty the re- accepted were contravention of the court, accepted the of the court quirements the 1964 of Crim.P. version inquire of At no time did the court pleas. 11, we affirm. as to the defendants their crime, explain it to the nor did endeavor I. crime On December nature of the to them. 1964, information was 15, an On October 1964, each defend- 14, the court sentenced charging Denver District Court filed in the term at state ant to an indeterminate conspiracy burglary,2 defendants reformatory. larceny,4 conspiracy burglary,3 to commit their having served Subsequently, after property,6 stolen larceny,5 receiving commit a Crim.P. sentences, filed each defendant property.7 receive stolen and va- 35(c) requesting motion appointed for each were Attorneys Among grounds pleas. the de- cate the On October defendants. Denver, County Although separate- City State of Colora- these two cases were filed and 1. act, ly, virtually do, namely, felony they a and cen- raise identical issues of an unlawful MALNATI, INC., adequacy single providency upon building against of a ter of ART hearing. felony corporation, We have therefore elected to consoli- was the crime of a burglary date the cases. described in and is the transaction information; contrary this One of Count ’53, 2. 40-3-6. C.R.S. case made and form of the statute in such dignity against peace provided, and ’53, 3. as fol- 40-7-36. This count read C.R.S. People of of Colorado.” of the the State lows: KEATING, COUNT: BERT M. “SECOND ’53, 40-5-2. 4. C.R.S. Attorney in the name and District authority of the of the State of Colo- ’53, 40-7-36. 5. C.R.S. rado, 8th further informs the that on Court October, City day A.D. at the ’53, 40-5-12. 6. C.R.S. Colorado, Denver, Couty State of [sic] JOSEPH MONTOYA and WALDO THOMAS ’53, 40-7-36. 7. C.R.S. unlawfully PAUL MUNIZ did then and there feloniously agree, cooper- conspire and the time this record indicates that at 8. The other with each other and with some ate hearing twenty years had Attorney old and persons Muniz was to the District or grade does unknown, doing by record education. The tenth to do and to aid in the them, Montoya’s age them, level. or educational at the reveal some one or more of motion, set in Muniz’ April forth filed on trolling legal accepting guilty standards for accepted was that the court his we address a con- pleas, preliminary explaining without to him the nature of this People. tention of the tenor or the elements of to commit contention is that defendants’ Crim.P. motion, burglary. Montoya’s which was were barred their failure to claims court, filed in also asserted that the earlier. find challenge the convictions We providency hearing, the 1964 failed to as- People’s position. no merit in the certain whether he understood the elements hearing and nature of this crime. A held on Muniz’ motion on May 35(c)(2) expressly recognizes inquired public defender “[njotwithstanding fact that no representing standing Muniz as to Muniz’ sought review of conviction of crime was bring public the action. The re- defender by appeal judgment ... or that a of convic sponded that the 1964 conviction was about tion was upon appeal, every per affirmed against to be used Muniz in sentencing son of a crime is convicted entitled as a hearing matter, on an independent and also application matter of to make for that it likely would constitute the basis of a post-conviction upon grounds review charge habitual criminal yet to be filed in hereinafter set forth.” Included within the Adams The court County. concluded that “grounds hereinafter set forth” is a claim “standing” Muniz indeed had challenge that the conviction was obtained “in viola guilty plea and vacated the plea because tion of the Constitution or laws of the Unit of the failure of the court “to explain ed or the constitution or laws of this States elements of the offense” during provi- 35(c)(2)(I). state.” We Crim.P. have held dency hearing. Relying on its earlier ruling long postconviction that as as a motion motion, on Muniz’ the court also vacated cognizable states a claim under Crim.P. 35 Montoya’s guilty plea after hearing a held fully finally and claim has not been and on June 1982. The record of that hear- prior judicial proceeding, resolved in a

ing Montoya’s indicates that 1964 conviction judicial defendant is entitled to review of was predicate used as a for a crim- habitual See, e.g., People asserted error. v. Bil inal charge subsequent prosecution in a lips, (Colo.1982); People 652 P.2d 1060 which resulted in a conviction and sentence Montoya (1969). was then serving.9 Bradley, The 169 Colo. 455 P.2d 199 People appealed each of the vacating orders cognizable Each defendant has stated a guilty pleas. 35(c) claim under Crim.P. in that their re

II. which, true, spective assert facts if motions previously would invalidate their entered in this case is Although principal issue Also, guilty pleas.10 with the con- the record shows that complied whether the court Montoya In 1973 convicted of second 1964 conviction of to commit bur- degree burglary theft, adjudicated glary constitutionally grounds and was infirm on that forum, and part sentenced as a habitual criminal based in he has not heretofore raised in 35(c) provides on his 1964 conviction of Crim.P. him with an avenue of burglary. judgments entitling commit The and sen- review him to consideration of this appeals tences were affirmed this court in motion.” The court of remanded to Montoya, 190 Colo. district court for consideration of Montoya Montoya present filed the Crim.P. 35 had established a need motion in- relief, appeal. and, so, volved in this ly The district if whether his 35 motion court initial- remand, text, evidentiary dismissed the motion had merit. without an On as indicated in the hearing. unpublished opinion Montoya In an the district court determined that had reversed, appeals present holding a need for relief virtue of his current action by Montoya’s resulting adjudication appeal was not barred incarceration from his as earlier adjudication. granted the habitual criminal a habitual criminal and the Crim.P. 35 appeal Montoya’s only noted that on his motion. challenge adjudication to the habitual criminal centered on People argue alleging his identification as the 10. that Muniz’ claim who sustained the 1964 conviction. In the the court’s failure to ascertain whether he un- contrast, proceeding, Crim.P. 35 appeals in the court of derstood the nature of the was not asserting timely specific noted that “he is that his raised fashion because this in challenged currently that his conviction was claims were resolved the defendants’ as a basis for enhanced appellate proceed- being considered postconviction a prior in a case and as the sentencing pending ing. for a habitual criminal in a predicate Although there can be no real dis county. Montoya in another prosecution compliance with pute about the defendants’ likewise demonstrated at the Crim.P. 35 35(c), the of Crim.P. requirements the facial serving he was a habitual hearing that argue that the defend People nonetheless part criminal sentence based in on the 1964 have been dismissed ants’ claims should challenging. he was then guilty plea which issues resolving relating “stale.” In say circumstances we cannot Under these claims, we have postconviction timeliness of concluding that the trial court erred relied on the American Bar Asso generally “present the defendants had shown a need” Relating ciation to Postconvic Standards reject for the relief We therefore sought. People Hampton, tion Remedies. See that the defendant’s People’s argument (1974); People 528 P.2d 1311 should have been postconviction claims Bucci, (1974); 184 Colo. untimely. barred as Hubbard, 243, 519 P.2d People v. provide These standards III. completed when a defendant has service of People’s argu- the crux of the belatedly postconvic seeks We turn to sentence ment, relief, he that the district court erred charged namely, tion be defendants’ motions for showing present granting burden of need for such 35(c)(2) au- Relating postconviction relief. to Postconvic relief. Crim.P. Standards “the 22-2.4(c) (1978). postconviction A suffi thorizes relief when tion Remedies § or sentence im- showing cient is made when the defendant conviction was obtained “facing prosecution posed establishes that he is or in violation of the Constitution or con laws of the or the constitu- challenged has been convicted and United States be, been, We need not viction or sentence or has tion or laws of this state.”11 sentencing factor in for the current of examine in this case whether defend- were obtained in violation Relating fense.” to Postconvic ants’ convictions Standards Here, 22-2.4(c)(i) (1978). tion of the or Colorado Constitu- Remedies United States § view, because, the convictions Muniz to the court’s satisfaction tions in our established “(IV) imposed ground That the sentence exceeded was not listed as a basis for his Crim.P. law, disagree. by 35 motion. We his motion to or is other- the maximum authorized expressly vacate Muniz claimed that defi- “[n]o with the sentence wise not in accordance in the Providen- law; nition of the crime was stated by authorized cy Hearing” elements of the and that “[t]he “(V) exists evidence of material That there charge Conspiracy Burglary to Commit heard, facts, presented and not theretofore allegations give not mentioned.” These [were] which, by dili- the exercise of reasonable ample notice of Muniz’ claim that the court gence, not have been known to or could determine, 11, required by failed to as Crim.P. attorney prior by his learned the defendant or he the nature of the offense to that understood or to the submission of the issues to the court pled. which he jury, requires the con- and which vacation of justice; in the interest of viction or sentence grounds postconviction for relief are Other properly “(VI) Any grounds otherwise 35(c)(2) listed in as follows: Crim.P. upon a criminal ‘basis for collateral attack “(II) applicant That the was convicted un- judgment; or der a statute that is violation Consti- “(VII) imposed has been That the sentence tution of the United States or the constitution fully unlawful state, or that there has been served of this or that the conduct for which parole, probation, condition- applicant prosecuted revocation of or is constitution- ally protected; al release.” “(III) rendering judgment That jurisdiction was without over the matter; applicant subject or the 1382

were obtained in violation of controlling prescribed No was required ritual in 1964 the guilty state law at the time pleas were for the of a guilty plea. E.g., acceptance entered.12 People Edwards, v. 129, 186 Colo. 526 P.2d v. 144 (1974); Ward Colo. legal In 1964 the standard However, P.2d 673 compliance pleas of guilty were to be measured was with require, Crim.P. 11 did it does 11(a). This rule went into effect on now,13 that an adequate there be basis in 1, 1961, November and stated as follows: the record to support determination “A defendant personally defendant understands by counsel orally may plead guilty, or, charge nature of the to guilty, not which he is Mason, e.g., People v. court, See pleading guilty. consent of nolo con- Jr., tendere. shall accept (1971); not Randolph, plea without first: 488 P.2d determining plea (1) is made voluntarily with of the na- blush Although there

ture of the charge, might appear to be some tension in our

(2) explaining fully to the decisions defendant the mere right his by jury, to trial of a is his sufficient to satisfy counsel, and the possible requirement penalty provided 11(a)(1), of Crim.P. a close by statute the offense charged.” examination of these cases discloses that (Emphasis added.) the central degree consideration is the Alabama, Boykin 12. In plea 395 U.S. 89 S.Ct. of nolo contendere without first deter- (1969), mining 23 L.Ed.2d 274 the United States that the defendant has been advised Supreme process rights 5(a)(2) Court held due of all the law set forth Rule requires plea understandingly determining: that a be also voluntarily also, (1) e.g., See made. That the defendant Hender- understands the na- Morgan, son ture of and the 426 U.S. 96 S.Ct. elements of the (1976) pleading (court’s acceptance L.Ed.2d 108 plea offense to which ishe and the effect murder, plea; degree his second without inform- (2) ing voluntary intent, That the on defendant of element defend- critical vio- part process law); ant’s People Meyers, lates and is the result of due undue part anyone; (Colo.1980) (court’s influence on 617 guilty or coercion the of acceptance P.2d 808 of (3) right plea That burglary, any he understands the showing to trial to without by jury and that he waives his to general accused of trial was aware even the issues; by jury crime, on all process nature of the violates due of law (4) possible penal- That he understands the and constitutionally renders conviction inad- ty penalties; or independent prosecution). missible in Al- (5) That the defendant though applied Boykin understands we have not retroactive- by any represen- the court will be bound not ly pleas 2, prior to to entered June the by anyone tations made to defendant the decision, see, Boykin e.g., People date of the concerning penalty imposed the to be or the Alvarez, (1973), 181 508 Colo. P.2d 1267 granting probation, or the denial of unless held, text, we have as discussed in the that the representations such are included in a formal required 1964 version of Crim.P. 11 some plea agreement approved the court and showing in the of the record defendant’s under- supported by findings presentence of the the standing charge of the of nature the before a report, any; if properly accept court plea. guilty could a tendered (6) a That there is factual basis for the solely Our this resolution of case is based plea. plea If the is entered as a of result a on a consideration of Crim.P. 11 and not the plea agreement, explain court shall the to the Due Process of the Clauses United States or defendant, satisfy and itself that the defend- Constitutions, Colorado U.S.Const. Amend. understands, plea agree- ant the basis for the XIV; II, Colo.Const. Art. Sec. 25. ment, and the defendant then waive the par- establishment of a factual basis for the present 13. The rule which became effective charge pleads; ticular to which he April 1974, provides pertinent part as felonies, (7) That in class or where the follows: plea guilty offense, of is lesser to a included “(b) Guilty Pleas of and Nolo Contendere. written consent have been shall filed with the accept plea guilty court shall not of attorney.” the district showing of some affirmative of com readily itself is under- sence charge which the rule, “plea intelli- of ordinary pliance of person standable to a any judgment and reading accepted, a mere of the informa- cannot be gence from following plea which is entered explanation by further sentence tion without People Randolph, is 175 Colo. at e.g., Watkins v. void.” Compare, court. (Colo.1983) (defendant’s af- 488 P.2d at 204. question to the court’s response firmative Viewed within the framework of he understood the nature of the whether we are satis long-standing principles these charge escape of to commit is defendants, postconvic fied that the at the equivalent substantive of a mean- not “the sufficient evidence hearing, presented tion the critical ele- ingful understanding of 35 court’s conclusion support the Crim.P. charge” especially ments of that since comply did not guilty pleas these 1964 readily of the offense “are not elements mandatory requirements with explana- without further understandable at only presented Crim.P. 11. The evidence Sanders, tion”); Colo. was the tran postconviction hearing (1974) (defendant’s affirmative re- providency hearing. Although, script of he un- sponse question to court’s whether shows, the defense attor transcript meaning of the words “assault derstood the information neys reading waived the under- to rob” not sufficient to establish an arraignment, that waiver did standingly guilty, made spread its obligation relieve the court of “is not a crime stating that assault to rob under upon the record the defendants’ readily apparent whose elements are standing charge of the with non-lawyer”), understandable to a pleas burglary accepting commit before Gorniak, 593 P.2d People v. court, to this offense. The how (1979)(defendant’s guilty plea to second ever, charge to the explained neither of the degree reading murder after court’s manner, nor discussed defendants to establish charge twice to him sufficient about the offense. Nor anything with them his of the nature of the defense coun inquire did the court charge “sufficiently crime since the charges with have reviewed the might sel People v. lay person”); understandable to a entry prior their clients Edwards, (court’s of the supra reading Thus, transcript shows what the is pleas. aggravated robbery sufficient counsels’ waiver of defense 11 because the compliance more. nothing the information description included “a clear comply with failure language easily elements ... couched in The court’s by the na 11(a)(1) compounded average to a intel- Crim.P. understandable the defendants the crime to which ligence”). Even when the defendant or his ture of was burglary Conspiracy to commit attorney pled. has waived the formal of involv complexity, information, is a crime of some such waiver does not serve mental state for culpable it express ing mandate of does dispense achieve design and a itself accept 11 that the court not Crim.P. object is the purpose which determining without the criminal People, v. E.g., Watkins conspiracy. the nature the defendant understands 277, 157 People, v. 113 Colo. supra; on more than LaVielle charge. We have held (1945). conspiracy, A with this re- P.2d 621 compliance one occasion that words, legal significance only Ma- other has quirement mandatory, e.g., People v. crime which is to some other son, Jr., supra; supra; People Randolph, v. v. conspiracy. Watkins object of the People, Westendorf v. 171 Colo. 464 the Pleasant, 182 Colo. supra; People (1970); People, People, Martinez v. 152 P.2d 866 112 (1973); Olde ab- 511 P.2d Colo. 382 P.2d (1944). The record however, Colorado, here, any is barren of evidence to ex The PEOPLE of the State Attorney FAULK, by the court which rel. Dennis E. District support a determination Dis In and the Eleventh Judicial For pleas that the defend- accepted trict, Petitioner, the nature of the crime to ants understood In view of this state of they pled.14 record, the district court’s conclusion the ELEV The DISTRICT COURT OF pleas were entered without OF COL ENTH JUDICIAL DISTRICT 11 is unassailable. compliance with Crim.P. Paul J. Keo ORADO and the Honorable Thereof, hane, Judges Re One of the judgments The are affirmed. spondents. No. 83SA231. ROVIRA, J., dissents. Colorado, Supreme Court ROVIRA, J., dissenting: En Banc. I dissent. Aug. Watkins, 655 P.2d 834 See (Colo.1983) (Rovira dissenting); People v.

Pauldino, (1974); 187 Colo. Edwards,

People v. 526 P.2d presentence accepting People argue report, guilty plea that a before 14. The is tendered and approximately presentence report arguably which was filed with the court While cir- it. guilty plea accept- cumstantially six weeks after Muniz’ ed, basis for the establishes a factual postconviction plea, of the na- establishes Muniz’ motions the defendants’ pre- pled. predicated separate independent ture to which he were on a report following ground, namely, guilty pleas sentence included the “state- were not that their required by ment of offense” Muniz: understanding^ made as Crim.P. 11(a)(1). presentence report The Muniz refers 8, 1964, Joseph “On October Thomas Monto- burglary, but it does to some of the elements of ya building Arapahoe I and entered a through not refer to of the elements open We were an window. arrested is, agreement burglary any- to commit an be- got as soon thing, I as we inside. didn’t take —that Montoya register.” Muniz and made with the de- tween sign but broke the cash into burgla- purpose report presentence to commit the crime In our does not view the satisfy 11(a)(1) ry. requirement does not We also note that record report presentence defendant’s under- contain Montoya. determine the standing of the nature of the time

Case Details

Case Name: People v. Muniz

Court Name: Supreme Court of Colorado

Date Published: Aug 22, 1983

Citation: 667 P.2d 1377

Docket Number: 82SA297, 82SA251

Court Abbreviation: Colo.