Niсanor SANCHEZ-MARTINEZ, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
No. 10SC83.
Supreme Court of Colorado, En Banc.
May 9, 2011.
250 P.3d 1248
Justice HOBBS delivered the Opinion of the Court.
While the Ditch Companies argued that e-mailing the Tribe a copy of their unverified application somehow cured this procedural defect, that argument holds no merit. It is fundamental that even a defendant‘s actual knowledge of the pendеncy of an action cannot substitute for actual service of process under
III. Conclusion
While water courts have wide latitude to adjudicate the highly technical matters before them, they must nonetheless take care to abide by the ordinary rules governing civil procedure wherе the WRDAA‘s special procedures do not apply. Because the majority‘s holding undercuts that requirement at the expense of due process for water rights holders who have undertaken to timely protect their rights under the statute, I dissent.
I am authorized to state that Justice COATS and Justice EID join in this dissent.
The Law Office of Mark Burton, P.C., K. Mark Burton, Denver, Colorado, Attorneys for Petitioner.
Don Quick, District Attorney, Seventeenth Judicial District, Russell Wentworth, Deputy District Attorney, Brighton, Colorado, Attorneys for Respondent.
In Sanchez-Martinez v. People, No. 09CV578, the Adams County District Court reversed the county court‘s order vacating petitioner Nicanor Sanchez-Martinez‘s guilty plea to third degree assault as unknowing, involuntary, and unintelligent. We granted certiorari, and reverse.1
In January 2008, the Northglenn Police Department (“NPD“) responded to complaints of a fight occurring in the apartment of petitioner Nicanor Sanchez-Martinez. Based on allegations made by his wife, Sanchez-Mаrtinez was charged with third degree assault and misdemeanor menacing, both of which were charged as acts of domestic violence.
Appearing pro se before Magistrate Bowen of the Adams County Court, Sanchez-Martinez pleaded guilty to third degree assault
Subsequently, in February 2009, Sanchez-Martinez brought a
As a result, during the hearing Adams County Court Magistrate Mole expressed his concern that Sanchez-Martinez did not knowingly and voluntarily plead guilty. At the conclusion of the hearing, Magistrate Mole also informed both parties that, taking the matter under advisement, he would likely set aside the guilty plea as unconstitutional. In a subsequent written order, he did so, and the prosecution appealed to the Adams County District Court.
The district court reversed the county court, concluding that the County Court improperly addressed the constitutionality of Sanchez-Martinez‘s guilty plea. It concluded that the court addressed the issue of an involuntary, unknowing, unintelligent guilty plea without providing notice, in violation of the prosecution‘s “right to due process.”
Because we determine that the county court provided the prosecution with adequate notice of its concerns about the constitutionality of the guilty plea, we do not reach the issue of whether the prosecution waived its right to claim lack of notice or whether the prosecution has such a right. We hold that the county court acted within its discretion when it addressed the constitutionality of Sanchez-Martinez‘s guilty plea based on evidence at the hearing. Finally, we also hold that the record supports the county court‘s findings and conclusion that Sanchez-Martinez‘s guilty plea was unconstitutional.
I.
On January 12, 2008, NPD officers responded to a report of an argument in Sanchez-Martinez‘s apartment in Northglenn, Colorado. Sanchez-Martinez and his wife, Adriana Munoz lived in the apartment with their two young children. Munoz claimed she confronted Sanchez-Martinez after he struck one of their children several times. Munoz alleged that he then grаbbed her neck, pushed her against the wall, punched her several times in the head, and threatened to kill her.
Sanchez-Martinez was arrested and charged with third degree assault,
Four days later, on January 16, 2008, Sanchez-Martinez appeared pro se with the aid of an interpreter before the Adams County Court, Magistrate Brian N. Bowen, to enter a guilty plea pursuant to
After the break, Magistrate Bowen conducted the Rule 11 colloquy. The transcript quoted below shows the Rulе 11 colloquy in its entirety:
Magistrate Bowen: Okay. We‘re back on the record, ah, 08-M-213. Sir, have you now had an opportunity to read or have read to you and signed this advisal of rights form? Oops. One more time. Okay, sir, have you now had the opportunity to either read or have read to you and signed this advisal of rights form.
Sanchez-Martinez: Yes.
Magistrate Bowen: Do you have any questions regarding your rights? Sanchez-Martinez: I‘m wondering if I can get the PR bond and then go to alcohol classes.
Magistrate Bowen: Okay. Well, let me talk to you about what this paper says and we‘ll go, then I‘ll try to answer your question. The district attorney says that upon a plea of guilty to assault in the third degree and domestic violence, that they would dismiss the other charges on your case.
Sanchez-Martinez: Okay.
Magistrate Bowen: If they do that, the maximum possible penalty here is five thousand dollars and/or two years in the county jail, with thirty-six weeks of domestic violence classes. They have no objection tо your getting probation and credit for time served in this case. Is that your understanding?
Sanchez-Martinez: You mean that I have been incarcerated?
Magistrate Bowen: Yes, you have been incarcerated, but the People would have no objection to your being placed on probation.
Sanchez-Martinez: Okay.
Magistrate Bowen: So if you‘re on probation, then there‘s no PR bond. Do you understand that, sir?
Sanchez-Martinez: What do you mean probation?
Magistrate Bowen: Probation which, would mean that you would be able to return to the community under the supervision of the court, through the probation department. Sir, are you in agreement with that?
Sanchez-Martinez: Yes.
Magistrate Bowen: Okay, Then, as to assault in the third degree, if you were to enter a plea of guilty to that charge, you would be acknowledging that you did, within the State of Colorado, on or about the twelfth day of January 2001—excuse me—2008, knowingly or recklessly cause bodily injury to another person without affirmative defense or legal justification. Sir, is that your understanding?
Sanchez-Martinez: Yes.
Magistrate Bowen: So, as to 18-3-204, assault, and 18-6-801, domestic violеnce, sir, how do you plead, guilty or not guilty?
Sanchez-Martinez: Guilty.
Magistrate Bowen: Do you understand that guilty means you did this; not guilty would mean you did not?
Sanchez-Martinez: Guilty means I did it?
Magistrate Bowen: Yes.
Sanchez-Martinez: Yes.
Magistrate Bowen: Did you do this?
Sanchez-Martinez: Yes.
Magistrate Bowen: Okay. Ah, has anyone promised you anything in order to have you enter this plea today?
Sanchez-Martinez: No.
Magistrate Bowen: Okay. Then, as to sentencing—counsel? (Question addressed to prosecuting counsel)
The court then sentenced him to a one-year term of probation and a sixty-day suspended jail sentence, and ordered him to pay a $500 fine and attend thirty-six sessions of domestic violence counseling.
On January 16, 2009, the Adams County Probation Department filed a petition with the Adams County Court to terminate Sanchez-Martinez‘s probation as successfully completed. On January 20, 2009, Magistrate Simon Mole granted the motion and terminated Sanchez-Martinez‘s term of probation.
On February 9, 2009, Sanchez-Martinez filed a motion for post-conviction relief pursuant to
At the hearing, upon questioning by the prosecution, Sanchez-Martinez testified regarding the circumstances surrounding his guilty plea:
District Attorney: But you pled guilty to this charge in January of 2008?
Sanchez-Martinez: Yes, because what I wanted to do is I wanted to get out, I wanted to go with my family, I didn‘t want to lose my job. Before we went into the court they sat me down with the interpreter and the DA or somebody, I think, and they say you‘re gonna plead guilty, ah huh, yes. That‘s when I told the judge that I was pleading guilty so he would let me out, and to pay and comply with everything else.
During the postconviction relief hearing, Sanchez-Martinez repeatedly testified that it was difficult to understand the Rule 11 proceedings beсause the interpreter was speaking too softly and too fast. He also testified that he pleaded guilty for fear of losing his job and because the district attorney told him he would be released if he did so. He stated that he faces deportation proceedings as a result of his conviction.
In response to questions asked by the prosecution and one question posed by the court, Sanchez-Martinez revealed that he cannot read or write in Spanish or English. He stated, “The only thing that I know to do is to draw my name.”
When asked by the prosecution about the advisal of rights form he initialed and signed at the Rule 11 hearing, Sanchez-Martinez testified that he signed the form without being informed of its contents:
District Attorney: And the interpreter went through this document with you?
Sanchez-Martinez: No. No, I—they only asked me to sign it.
District Attorney: You did sign it?
Sanchez-Martinez: Yeah, they told me to sign it. They didn‘t read it to me.
District Attorney: Did you tell anybody that you needed help reading it?
Sanchez-Martinez: No, I did not. No, they did not they just gave mе the document, interpreter gave me and he said sign here, here and that‘s—that was it.
Following closing statements by both parties, Magistrate Mole informed the parties that he was inclined to find Sanchez-Martinez‘s guilty plea unconstitutional:
I‘ve been told this gentleman doesn‘t read Spanish or English, and I do find that believable and credible. I don‘t think this was a knowing, voluntary plea by any stretch of the—of the imagination, and frankly, I‘d set aside on those grounds. And I think there‘s ample record here for any review[ing] [sic] court to believe that there are other grounds for setting this aside. This was somebody who was solely focused on getting out, didn‘t have a clue what he was doing, couldn‘t hear the interpreter, couldn‘t read the Spanish disposition form that was offered him. So I‘m frankly considering reviewing my notes to see whether I should set aside on those grounds.
In a subsequent written order, Magistrate Mole found Sanchez-Martinez‘s testimony credible. He concluded that Sаnchez-Martinez could not have read and understood the written advisal of basic constitutional rights contained in the advisal of rights form, that the record did not show that he was advised of the elements of the offense he pleaded guilty to, and that he may have received ineffective interpreter services during the Rule 11 hearing. Ultimately, he concluded that the plea was not constitutionally sound and set aside Sanchez-Martinez‘s judgment of conviction pursuant to
The district court concluded that the county court improperly considered the constitutionality of Sanchez-Martinez‘s plea because the issue had not been raised properly in the proceedings before Magistrate Mole. We granted certiorari, and reverse the district court.
II.
Because we determine that the county court provided the prosecution with adequate notice of its concerns about the constitutionality of the guilty plea, we do not reach the issue of whether the prosecution waived its right to claim lack of notice or whеther the prosecution has such a right. We hold that the county court acted within its discretion when it addressed the constitutionality of Sanchez-Martinez‘s guilty plea based on evidence at the hearing. Finally, we also hold that the record supports the county court‘s findings and conclusion that Sanchez-Martinez‘s guilty plea was unconstitutional.
A. Standard of Review and Applicable Law
Whether a guilty plea is knowing, voluntary, and intelligent is a mixed question of law and fact. See People v. Kyler, 991 P.2d 810, 818 (Colo.1999). We defer to the trial court‘s findings of fact unless they are so clearly erroneous as to find no support in the record. People ex rel. A.J.L., 243 P.3d 244, 250 (Colo.2010). Likewise, assessing the credibility of witnesses is a trial court function. Id. at 249-50. We review questions of law de novo. Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff‘s Dept., 196 P.3d 892, 897 (Colo.2008).
1. Guilty Pleas
“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). When a defendant pleads guilty, he waives several important constitutional rights, including his privilege against self-incrimination, right to a jury trial, right to confrontation, right to a sрeedy and public trial, right to insist the prosecution establish guilt beyond a reasonable doubt, and right to present witnesses on his behalf. Kyler, 991 P.2d at 816.
To ensure the constitutionality of guilty pleas,
Rule 11 also requires the court to ensure that the defendant is advised of “all the rights set forth in [Crim. P.] 5(a)(2).”
Given the important rights at stake, to be constitutionally valid, a defendant must enter his guilty plea knowingly, voluntarily, and intelligently. See Kyler, 991 P.2d at 816. A Rule 11 court accepting a defendant‘s guilty plea must consider the totality of the circumstаnces to determine whether he entered his guilty plea knowingly, voluntarily, and intelligently. Id. at 817. A court may consider several factors bearing on the defendant‘s understanding of the proceedings when deciding whether a defendant‘s waiver of important constitutional rights was valid, including the defendant‘s education, familiarity with English, and experience with the legal system. See U.S. v. Fuller, 941 F.2d 993, 996 (9th Cir.1991).
“The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)) (quotation marks omitted). Because a guilty plea is an extensive waiver of the defendant‘s constitutional rights, a challenge to a conviction based on a guilty plea is usually limited to whether the plea was knowing, voluntary, and intelligent. Patton v. People, 35 P.3d 124, 128 (Colo. 2001). A presumption of regularity and validity attaches to a judgment of conviction based on a guilty plea. Id. at 131. Accordingly, a defеndant who seeks to set aside a conviction based on a guilty plea must make a prima facie showing that the plea was unconstitutional. Id. at 132.
A defendant‘s false statements concerning his guilty plea made during a Rule 11 hearing do not automatically bar post-conviction relief on the grounds that his plea was unconstitutional. See Tovar Mendoza v. Hatch, 620 F.3d 1261, 1271 (10th Cir. 2010) (“But nothing in Supreme Court precedent suggests that a due process violation resulting from the entry of an unknowing plea can be overlooked due solely to the defendant having made false in-court statements during the plea hearing.“). Instead, courts should consider whether the guilty plea was “so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.” Blackledge v. Allison, 431 U.S. 63, 75 (1977).
In the case of a non-English speaking defendant, providing an interpreter at the Rule 11 hearing can be important to еnsuring that a guilty plea is knowing, voluntary, and intelligent. See People v. Ochoa-Magana, 36 P.3d 141, 143 (Colo.App.2001). When a defendant claims that his lack of proficiency in English renders his guilty plea unconstitutional, courts engage in a fact-intensive inquiry to determine the effect of the language barrier on his ability to enter a knowing, voluntary, intelligent plea. See, e.g., United States v. Martinez-Cruz, 186 F.3d 1102, 1104-05 (8th Cir.1999). A court may consider many factors, such as the presence of an interpreter, whether the defendant indicated that he understood the constitutional rights he waived by pleading guilty, whether the plea agreement was explained to him, and whether he was represented by bilingual counsel. Id. Ultimately, the particular facts
2. Post-Conviction Proceedings
(I) that the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state;
...
(V) that there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice.
3. Crim. P. 52(b)
B. The Prosecution was on Notice that the Constitutionality of Sanchez-Martinez‘s Guilty Plea was at Issue.
We do not address whether the prosecution waived its lack of notice argument by failing to raise it before the county court, or whether the prosecution has a due process right to notice, because we conclude the prosecution was on notice that the constitutionality of Sanchez-Martinez‘s plea would be at issue.
The prosecution incorrectly asserts that the county court spontaneously held a hearing on the constitutionality of the defendant‘s plea. Contrary to this assertion, the record shows that, of its own volition, the prosecution elicited the testimony from Sanchez-Martinez that initially raised the trial court‘s concern regarding the constitutionality of his plea. The prosecution asked questions regarding the Rule 11 hearing interpreter and Sanchez-Martinez‘s ability to understand him, his understanding of the advisal of rights form, and his ability to
During the Rule 35(c) hearing in the instant case, the prosecution and the defense agreed that People v. Schneider, 25 P.3d 755 (Colo.2001), sets forth the test for whether a conviction predicated on a guilty plea should be set aside in light of newly discovered evidence. In Schneider, we articulated a stringent three-part test to be applied in such situations. Id. at 762. Explaining our rationale for the test, we stated that “a defendant who voluntarily and knowingly enters a plea accepting responsibility for the charges is properly held to a higher burden in demonstrating to the court that newly discovered evidence should allow him to withdraw that plea.” Id. at 761.
Here, the prosecution instituted questioning in which it sought to establish that Sanchez-Martinez had entered a knowing, voluntary, intelligent plea.2 During the hearing, based on Sanchez-Martinez‘s answers, Magistrate Mole explicitly stated that he was considering setting aside the guilty plea as unconstitutional. We conclude that the prosecution was on notice of this issue, in addition to the issue of newly discovered evidence.
C. The Trial Court Properly Addressed the Constitutionality of Sanchez-Martinez‘s Guilty Plea.
Sanchez-Martinez is illiterate in both Spanish and English. His misunderstanding of the nature of the Rule 11 hearing indicates that he did not understand the most basic aspects of the United States’ criminal justice system. Appearing pro se, he had no legal counsel to assist him in making the determination of whether to plead guilty or proceed to trial. The prosecution elicited testimony from Sanchez-Martinez that indicated: he was not advised of the constitutional rights he would waive by pleading guilty; he pleaded guilty because he mistakenly believed that failure to do so would automatically lead to his incarceration; and he could not understand the interpreter during the Rule 11 hearing.
Sanchez-Martinez filed his Rule 35(c) motion within eighteen months of the date of conviction, as required by
D. The Record Supports Magistrate Mole‘s Conclusion that Sanchez-Martinez‘s Guilty Plea was Unconstitutional.
In assessing Magistrate Mole‘s order vacating Sanchez-Martinez‘s conviction, we defer to his findings of fact and review de novo his conclusion of law that the guilty plea was unconstitutional. See A.J.L., 243 P.3d at 249-50; Kyler, 991 P.2d at 818. We consider the totality of the circumstances to determine whether the guilty plea was entered knowingly, voluntarily, and intelligently. See Kyler, 991 P.2d at 817.
Magistrate Mole found Sanchez-Martinez credible, and the record supports that finding. See A.J.L., 243 P.3d at 249-50. He also found that (1) Sanchez-Martinez cannot read or write in Spanish or English, (2) he was told to sign his advisal of rights form without having it read to him, and (3) he had difficulty hearing the interpreter during the Rule 11 hearing. Based on these facts, Magistrate Mole found that “at the time he entered his plea, [Sanchez-Martinez] had very little if any conception of what was happening, other than that he would be allowed to go home if he said guilty.” We conclude that the record adequately supports these findings of fact. See A.J.L., 243 P.3d at 250.
Based on the record before us, we conclude Sanchez-Martinez did not understand the effect of pleading guilty, and his plea did not represent a “voluntary and intelligent choice among alternative courses of action.” See Hill, 474 U.S. at 56. Sanchez-Martinez is a non-English speaking, illiterate, non-citizen defendant appearing pro se, with an apparently limited understanding of the United States criminal justice system. See Fuller, 941 F.2d at 996. The Rule 11 court fell short of its duty to ensure his understanding of the important constitutional rights he possessed, and that were waived by pleading guilty.4 The unique facts of this case lead us to the determination that Sanchez-Martinez‘s guilty plea was unconstitutional. See Martinez-Cruz, 186 F.3d at 1104-05; Fuller, 941 F.2d at 996.
The record shows that Sanchez-Martinez was not informed of and did not understand
the alternative courses of action available to him. See Hill, 474 U.S. at 56. The court found that he had “little, if any conception of what was happening,” and concluded that he did not understand the panoply of important constitutional rights waived by pleading guilty, including the right to a jury trial and the right to be represented by counsel. Because he was accused of committing two misdemeanor offenses, Sanchez-Martinez had the right to be tried by a jury of six. SeeHis misapprehension of the consequences of pleading not guilty underscores the unknowing, involuntary, unintelligent nature of his guilty plea. It also highlights the ways in which procedural safeguards put in place by the constitutions, laws, and rules to protect the rights of criminal defendants failed in this instance.
The record shows that Sanchez-Martinez had difficulty understanding the court interpreter provided during the Rule 11 hearing. Cf. Martinez-Cruz, 186 F.3d at 1104-05 (guilty plea constitutional where record did not show ineffective interpreter services). Even if the court-provided interpreter service had been effective, the record shows that the Rulе 11 colloquy was materially inadequate.
Magistrate Bowen recited the elements of third degree assault, but made no inquiry into whether Sanchez-Martinez actually understood the nature of the constitutional rights waived by pleading guilty, including the right to a jury trial and the right to
The record also indicates that the interpreter told Sanchez-Martinez to sign and initial the advisal of rights form describing the consequences of his guilty plea without reading the form to him. Cf. id. (guilty plea constitutional where bilingual defense attorney explained guilty plea petition to defendant). Because Sanchez-Martinez cannot write or read in English or Spanish, he could not have understood the important constitutional rights waived by pleading guilty. See Kyler, 991 P.2d at 816. The trial court did not discharge its duty properly during the Rule 11 hearing.
The prosecution argues that Magistrate Mole‘s findings and conclusions regarding the constitutionality of Sanchez-Martinez‘s guilty plea should be disregarded because he did not have before him the Rule 11 hearing transcripts. We disagree because Sanchez-Martinez‘s testimony during the Rule 35 hearing explained, rather than refuted, his testimony during the Rule 11 heаring. In response to the district attorney‘s questions, he gave further, detailed testimony establishing his lack of understanding of the proceedings and the failure of the Rule 11 court to ensure that he was aware of the important constitutional rights he waived by pleading guilty. Had Magistrate Mole been presented with the Rule 11 colloquy transcript, it would have only buttressed his judgment to vacate the guilty plea.
The prosecution had the opportunity to provide the Rule 11 colloquy transcript to the county court and to ask the court to review it. The prosecution did not do so. While this transcript was before the district court on appeal, it summarily dismissed the issue when it erroneously concluded that the prosecution was not on notice of the issue in the proceeding before Magistrate Mole.
Although Sanchez-Martinez stated during the Rule 11 hearing that he understood the rights he waived by pleading guilty, the record supports Magistrate Mole‘s findings of fact and conclusion that Sanchez-Martinez‘s guilty plea was unconstitutional. Considering the totality of the circumstances, the combined effect of the several errors at issue in this case—Sanchez-Martinez‘s lack of understanding of the Rule 11 hearing due to the language barrier and ineffective translation, the defective Rule 11 advisement by the court before entry of the guilty plea, and his lack of knowledge of a criminal defendant‘s numerous constitutional rights, including the right to a jury trial, the right to an attorney, the right to confrontation, and the right to present witnesses on his behalf—support this conclusion. See Kyler, 991 P.2d at 817; cf. Fuller, 941 F.2d at 996 (defendant‘s limited education, lack of experience with the legal system, and limited proficiency with English language indicate unknowing waiver). Therefore, we hold that the district court improperly reversed Magistrate Mole‘s order vacating Sanchez-Martinez‘s guilty plea.
III.
Accordingly, we reverse the distriсt court and reinstate the county court‘s judgment vacating Sanchez-Martinez‘s guilty plea.
Justice COATS dissents, and Justice RICE and Justice EID join in the dissent.
Justice COATS, dissenting.
I consider the majority‘s resolution of this case to be not only misguided but particularly unfortunate as well. Whether the defendant was read and understood the written Spanish advisement and waiver of rights he signed before entering his guilty plea largely involves a determination of fact, which could
Criminal defendants are liberally entitled to post-conviction relief in this jurisdiction for violations of the Constitution or laws of either the United States or this state. Their applications for post-conviction review, however, must substantially comply with a specific format and contain specifically designated information, including every ground upon which a claim of unlawful confinement is made. See
The defendant in this case applied for post-conviction review of his conviction as required by the rule, but did so without the slightest insinuation that he was not advised of or did not understand the rights he was waiving and the plea he was entering. He did not suggest in any way that he was asserting a defect in his plea amounting to a violation of the federal and state laws or constitutions. See
After hearing the matter, the magistrate completely rejected as unfounded the defendant‘s claim of entitlement to a new trial based on newly discovered evidence. Nevertheless, the magistrate vacated the defendant‘s guilty plea as involuntary and unintelligent, reasoning that Schneider impliedly found a motion for post-conviction relief based on newly discovered evidence to simultaneously put at issue the validity of the underlying guilty plea. To the contrary, in Schneider we narrowly circumscribed the relief available for newly discovered evidence following guilty pleas precisely because such claims necessarily accept, rather than contest, the validity of the underlying plea and instead seek new trials entirely on equitable grounds. See id. at 761; see also Farrar v. People, 208 P.3d 702, 706 (Colo.2009) (motion for new trial based on newly discovered evidence does not challenge the lawfulness of the underlying conviction). Perhaps in tacit recognition of the post-conviction magistrate‘s confusion, the majority does not rely on, or even mention, this rationale for notice to the prosecution.1
Instead the majority advances other (but equally unconvincing) justifications for the defendant‘s failure to assert, in his motion for post-conviction relief, the ineffectiveness of his plea. The majority suggests both that the prosecutor was given adequate notice by
In any event, the majority proceeds to suggest, in reliance on the plain error doctrine of
Finally the majority finds that the defendant‘s advisement was inadequate and that he failed to understand even the rights of which he was advised. The boilerplate selected by the majority notwithstanding, we have long held that although a providency hearing is designed to evidence the constitutional validity of guilty pleas, see People v. Leonard, 673 P.2d 37, 39-40 (Colo.1983), and therefore compliance with
The question whether the defendant perjured himself in claiming at his providency hearing to have read, or had read to him, and understood this written Advisal of Rights, or whether he perjured himself in latеr claiming at his post-conviction hearing not to understand English, read Spanish, or have had his Spanish Advisal of Rights read to him by his interpreter, is clearly a matter of fact, or credibility. And while many judicial officers might have found a defendant‘s subsequent self-serving recantation less credible than did
If, as appears to be the case, the defendant is facing deportation consequences of which he was unaware at the time of the providency hearing, he may have alternate grounds for vacating his plea. Cf. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1482-83 (2010); People v. Pozo, 746 P.2d 523, 528-29 (Colo.1987). If his post-conviction testimony was indeed truthful, he would at least appear to have a legitimate claim that his post-conviction counsel was ineffective for not asserting the ineffectiveness and invalidity of his plea in the first place. See Silva v. People, 156 P.3d 1164, 1168-69 (Colo.2007). In my view, however, the defendant‘s entitlement to relief on these grounds must be established as an evidentiary matter, after proper pleading in a proper forum.
Because I am disinclined to compromise sound principles of law, no matter how sympathetic a particular defendant may be, I respectfully dissent.
I am authorized to state that Justice RICE and Justice EID join in this dissent.
No. 09CA0085.
Colorado Court of Appeals, Div. V.
March 4, 2010.
Rehearing Denied April 22, 2010.