People v. WrightPeople v. Wright
- Reporters:
- Before:
- Berman, Kelly, Sternberg
Defendant appeals from the refusal of the trial court to allow him to withdraw his guilty plea upon its determination not to sentence him in accordance with a plea bargain agreement. We reverse.
At a providency hearing held on May 5, 1975, the trial court accepted defendant‘s guilty plea to second degree assault, the crime with which he had been charged. Prior to accepting the plea, the court indicated that it was aware of negotiations between the district attorney and defense counsel and informed defendant that the court was not bound by any promises that may have been made to him, by any representations as to what sentence the court might enter, nor by any representations as to whether the court would grant probation. Following the acceptance of the plea, the district attorney informed the court that he recommended defendant be granted probation if defendant secured employment in Atlanta, Georgia.
Although it does not affirmatively appear in the record that the plea agreement included this recommendation, the People concede in their brief that this was, in fact, the bargained-for agreement. Furthermore, since defendant pled guilty to the only crime charged, charge concessions could not have been involved. Thus, the court‘s indication that it was aware that the plea was negotiated could only refer to its knowledge of an agreement by the district attorney to recommend probation.
At the sentencing hearing, defendant, fearing probation would not be granted in light of the pre-sentencing report (even though he had obtained the specified employment), unsuccessfully sought to withdraw his guilty plea. The court refused to allow the plea to be withdrawn, denied probation, and sentenced defendant to an indeterminate term not to exceed eight years.
Defendant appeals contending that the court had an obligation to offer him the opportunity to withdraw his guilty plea when the court determined it would not follow the district attorney‘s recommendation that probation be granted. We agree and therefore reverse.
At issue is the appropriate construction of
“If the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in Rule 11(f) of these Rules, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere.”
Inasmuch as there are no cases which have interpreted this portion of
The People contend that the above-quoted portion of the rule is inapplicable to the instant case. Pointing out that the district attorney has no authority to determine the appropriate sentence or grant probation and that the court is not bound by any sentence recommendation, the People argue that the plea bargain required only that the recommendation be made. In essence, the People‘s premise is that a sentence “recommendation” is not a sentence “concession.” We disagree.
Penal statutes are to be strictly construed in favor of defendants, Cokley v. People, 168 Colo. 280, 450 P.2d 1013; Polly v. People, 107 Colo. 6, 108 P.2d 220, and they are to be construed as written. Harris v. People, 113 Colo. 511, 160 P.2d 372; Price v. Board of County Commissioners, 22 Colo. App. 315, 124 P. 353. The policy which underlies applying these principles to penal statutes is equally applicable to rules of
It is true that the district attorney has no authority to determine the sentence. However, we hold that sentence concessions must be equated with sentence recommendations; to hold otherwise would render the reference to sentence concessions in
A careful reading of the rule itself supports this view.
This interpretation of 32(e) is consistent with the trial court‘s obligation to “exercise an independent judgment in deciding whether to grant charge and sentence concessions.”
The People argue that
Merely informing the defendant, pursuant to
Where the court has initially indicated its concurrence in the recommendation, but later rejects it, the defendant‘s only relief would be withdrawal of the plea.
Several federal circuit courts and numerous states, by judicial decision as well as by statute or court rule, have held that a court, upon deciding not to grant the sentence recommended by the state as part of the plea bargain, is required to offer the defendant an opportunity to withdraw a guilty plea. See United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir.); United States v. Gallington, 488 F.2d 637 (8th Cir.); Griffith v. Wyrick, 527 F.2d 109 (8th Cir.); Thomas v. Florida, supra;
Plea bargaining is recognized as an indispensable element of our criminal justice system. Often, as here, the only agreement by the prosecutor, for his part of the plea bargain, is a sentence or probation recommendation in exchange for a guilty plea to the crime as charged. “Thus, when the trial judge reject[s] the plea bargain he remove[s] it as the basis for the sentence.” Commonwealth v. Wilson, supra. When this occurs, the plea can hardly be characterized as voluntary. See Gibson v. State, 532 S.W.2d 69 (Tex.Crim.App.) (dissenting opinion). “Even though the judge has said nothing to the defendant . . . except that he need not follow the prosecutor‘s recommendations, there nevertheless remains at least the taint of false inducement.” ABA, Standards Relating to the Function of the Trial Judge § 4.1[c] (commentary). And, “[t]o say in these circumstances that all which was bargained for and agreed to was fulfilled by the prosecutor‘s mere act of recommending probation would reduce the bargain to a trap, or, at best, a formality.” Thomas v. Florida, supra.
Contrary to the People‘s argument, the rule adopted here does not give defendant an unfair advantage at the expense of the prosecution. District attorneys have the power, which they always have had, to refuse to recommend a sentence or probation. Judges, in their discretion, also may reject sentence concessions, but if they do so, fundamental fairness mandates that the defendant be permitted to withdraw the plea if he so desires.
Because of our conclusion on this issue, we do not reach defendant‘s other contentions of error.
Judgment reversed and cause remanded with directions to permit defendant to withdraw his plea of guilty, enter a new plea, and for further proceedings.
KELLY and STERNBERG, JJ., concur.