William WATKINS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 81SC82.
Supreme Court of Colorado, En Banc.
Dec. 20, 1982.
Rehearing Denied Jan. 10, 1983.
655 P.2d 834
QUINN, Justice.
In Mack v. Town of Craig, 68 Colo. 337, 338-339, 191 P. 101 (1920), this court quoted with approval Lewis On Eminent Domain § 371 (3rd Ed.), as follows:
“The authority to condemn must be expressly given or necessarily implied. The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist. . . . If the act is silent on the subject, and the powers given by it can be exercised without resort to condemnation, it is presumed that the legislature intended that the property should be acquired by contract.”
We agree with this analysis. When space to house county offices is sought, we believe the General Assembly intended that the counties enter the real estate marketplace and acquire the property by contract or lease.
Should the General Assembly determine that a county‘s powers of eminent domain ought to extend to acquisition of property for office space, it may statutorily so direct. However, considering the historic reluctance to allow condemnation of private property where the authority to exercise the power of eminent domain is neither express nor clearly implied by statute, Mack v. Town of Craig, supra; Potashnik v. Public Service Company, supra; Eaton v. Bouslog, supra, we decline to recognize such a power in counties. To do so, in our view, would usurp the authority of the General Assembly which has the sole authority under our constitution to delegate the power of eminent domain.
The judgment of the district court is affirmed.
J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., R. Michael Mullins, Asst. Atty. Gen., Denver, for respondent.
QUINN, Justice.
We granted certiorari to review an unpublished decision of the court of appeals which affirmed the adjudication of the petitioner William Watkins (defendant) as an habitual criminal. The court of appeals held that the trial court properly denied the defendant‘s motion to suppress two prior felony convictions which served as the predicate for the habitual criminal adjudication. We conclude that one of these convictions, a 1974 conviction for conspiracy to commit escape,1 was based upon a constitutionally infirm plea of guilty. We therefore reverse the judgment and remand the case for resentencing.
I.
The defendant was charged in the trial court with aggravated robbery,2 conspiracy to commit aggravated robbery,3 menacing,4 and habitual criminality.5 The habitual
The transcript of the providency hearing of the 1974 conviction, which is critical to this appeal, disclosed that the prosecutor in that case agreed to accept a guilty plea to the crime of conspiracy to commit escape in exchange for the dismissal of all other pending counts.6 The transcript disclosed that the district attorney read in open court the proposed count which stated as follows:
“A.L. Herrman, Jr., District Attorney, in the name and by the authority of the People of the State of Colorado further informs the Court that on this 8th day of July, A.D.1973, in the County of Jefferson, State of Colorado, William Tyrone Watkins, with the intent to promote and facilitate a commission of the crime of escape as defined by 40-8-208, as amended, C.R.S.1963, did unlawfully, feloniously agree with [a] person or persons to the District Attorney unknown that one or more of them would engage in conduct which constitutes said crime and an attempt to commit said crime, and did agree to aid such other person or persons in the planning and commission and attempted commission of said crime, and did commit an overt act in pursuance of such conspiracy, contrary to the form of the statute in such case made and provided against the peace and dignity of the People of the State of Colorado.”
The court thereafter advised the defendant of the rights he was waiving by pleading guilty and then inquired of the defendant as follows:
“THE COURT: . . . Mr. Watkins, in this fourth count it is alleged that you conspired with others to commit the crime of escape or to attempt to commit the crime of escape. Do you understand the nature of the charge that is involved in this fourth count?
“MR. WATKINS: Yes, your Honor, I do.”
No further explanation of the crime or its elements was given to the defendant. After advising the defendant of the possibility of a five to forty year sentence for the crime, the court accepted the plea.
The trial court in the instant case suppressed the defendant‘s 1969 conviction for second degree burglary but denied suppression of the other two felony convictions. The jury returned verdicts finding the defendant a twice previously convicted felon as charged in the two habitual criminal counts. The court sentenced the defendant to concurrent terms of thirty to thirty-five years for aggravated robbery, an indeterminate term not to exceed eight years for conspiracy to commit aggravated robbery, an indeterminate term not to exceed four years for felony menacing, and a term of thirty to thirty-five years for habitual criminality. On appeal the court of appeals rejected the defendant‘s claim with respect to the 1974 guilty plea. After noting that the record of the providency hearing showed an affirmative response by the defendant to the trial court‘s inquiry whether he understood the nature of the charge, the court of appeals summarily concluded: “[the] defendant‘s contention that his plea
The defendant assigns as error the trial court‘s refusal to suppress the 1971 and 1974 felony convictions. He asserts that both convictions were obtained in violation of due process of law,
II.
A prior conviction obtained in violation of a constitutional right of the accused cannot be used in a subsequent criminal proceeding to support guilt or to enhance punishment. See, e.g., Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); People v. Quintana, 634 P.2d 413 (Colo.1981); People v. Roybal (Roybal I), Colo., 618 P.2d 1121 (1980); People v. Roybal (Roybal II), Colo., 617 P.2d 800 (1980). A plea of guilty involves a waiver of several constitutional rights, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); People v. Meyers, Colo., 617 P.2d 808 (1980), and if a conviction based upon a guilty plea is to satisfy constitutional requirements of admissibility the record must establish that the plea was voluntarily and understandingly made, Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Roybal II, supra. An understandingly made plea of guilty requires that the record affirmatively show the defendant‘s understanding of the critical elements of the crime to which the plea is tendered. E.g., People v. Meyers, supra; People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979); People v. Gleason, 180 Colo. 71, 502 P.2d 69 (1972); People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972). Our prior cases hold that, to satisfy this requirement, the court should explain the critical elements “in terms which are understandable to the defendant.” People v. Cumby, 178 Colo. 31, 33, 495 P.2d 223, 224 (1972); see also, e.g., People v. Riney, 176 Colo. 221, 489 P.2d 1304 (1971) (“such an explanation and a determination by the trial judge that the accused understands the nature of the charge is required by . . . the Constitution of the United States“). Even where the record shows defense counsel has given some explanation to his client of the count to which the plea of guilty is tendered, we have held that this showing by itself does not constitute the type of demonstration sufficient to justify the conclusion that the defendant knew the critical elements of the charge when the plea of guilty was entered. People v. Mason, Jr., 176 Colo. 544, 491 P.2d 1383 (1971).
In attacking the constitutional validity of a prior conviction in habitual criminal proceedings, the defendant must make a prima facie showing that the challenged conviction was unconstitutionally obtained. People v. Quintana, supra; see also People v. Mascarenas, 632 P.2d 1028 (Colo.1981); People v. Shaver, 630 P.2d 600 (Colo.1981); Roybal I, supra. A prima facie showing in the context of this case means evidence which, when considered in a light most favorable to the defendant with all reasonable inferences drawn in his favor, will permit the court to conclude that the defendant‘s plea of guilty was not understandingly made. See People v. Quintana, supra; People v. Mascarenas, supra; People v. Shaver, supra. Once a prima facie showing is made, the conviction is not admissible unless the prosecution establishes by a preponderance of the evidence that the conviction was obtained in accordance with the defendant‘s constitutional rights. Id.
The admissibility of the defendant‘s 1974 conviction must be evaluated in light of the foregoing principles. The transcript of the 1974 providency hearing, at which the defendant pled guilty and on the basis of which a judgment of conviction was entered, fails to show that the court explained any of the elements of the crime of conspiracy to commit escape by a felon. The defendant‘s response of “yes” to the court‘s question whether he understood “the nature of the charge that is involved in this fourth count” is not, in our view, the substantive equivalent of a meaningful understanding of the critical elements of that charge.
The crime of conspiracy is a crime of specific intent and its elements are not readily understandable without further explanation. See People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974) (defendant‘s assertion that he understood the charge of assault to rob not sufficient to establish an understandingly made plea). The charge to which the defendant pled included the following critical elements: (1) with the specific intent to promote or facilitate the commission of the crime of escape by a felon; (2) agreeing with one or more persons that one or more of them would engage in conduct constituting either the crime of escape by a felon or an attempt to do so; and (3) the commission of an overt act in pursuance of the conspiracy.
Due to the inadequacy of the 1974 providency hearing the defendant sustained his initial burden of making a prima facie showing that his plea of guilty was not understandingly made. Under these circumstances it was incumbent upon the prosecution, as a condition precedent to admissibility of the defendant‘s conviction, to establish by a preponderance of the evidence that the defendant‘s guilty plea was under-
IV.
The habitual criminal statute has the effect of increasing the penalty for the substantive felony to a term of not less than twenty-five nor more than fifty years in the case of a defendant found to have been twice previously convicted of a felony. Section
The judgment is reversed and the cause is remanded to the court of appeals with directions to return the case to the district court for resentencing.
ROVIRA, J., dissents.
HODGES, C.J., joins in the dissent.
ROVIRA, Justice, dissenting:
I respectfully dissent.
The transcript of the 1974 hearing reveals that the defendant was charged with escape
The matter was continued until later in the afternoon. The defendant, at the request of his counsel, was given the opportunity to contact certain people who had planned to be at his trial the next day.
At the afternoon session, the district attorney tendered a fourth count to the information, conspiracy to commit escape by a felon, and this fourth count was read to the defendant. Defendant‘s counsel again advised the court that a plea bargain had been entered into, that “the charge itself probably does not have a factual basis to sustain a conviction to this fourth count but due to the fact that there are other charges to be dismissed which carry severe penalties, Mr. Watkins is desirous of tendering a plea to the fourth count.”
Defense counsel further stated that he had advised his client as to the possible penalty and stated, “I think Bill is intelligent and understands what is going on and is prepared to tender a plea of guilty to the fourth count.”1
The trial court then said, “Mr. Watkins, in this fourth count it is alleged that you conspired with others to commit the crime of escape or to attempt to commit the crime of escape. Do you understand the nature of the charge that is involved in this fourth count?” The defendant responded by answering, “Yes, your Honor, I do.” The defendant also acknowledged that the plea was voluntary, that he understood his right to a trial by jury, and he wished to waive that right, that he was aware that he could be sentenced from five to forty years in the penitentiary and the likelihood of probation was nil.
Defense counsel then advised the court that there was no factual basis to sustain the charge of conspiracy, because the charge was based on a plea bargain, but there were facts to substantiate the charge of escape. He told the court that the defendant while at Camp George West Honor Unit had walked out the front gate and was gone about a month before he was arrested. Based on the foregoing information, the trial court accepted the defendant‘s plea of guilty.
The defendant, again represented by the State Public Defender, now argues that the 1974 plea should be set aside because the nature and elements of the charged offense were insufficiently explained. Nowhere in their brief do they allege that the defendant did not understand the elements and nature of the conspiracy charge.2 Their argument rests solely on their claim that the trial judge never explained or asked the defendant if he understood the elements of the crime.
In my view, the majority opinion elevates form over substance. Satisfaction of Crim.P. 11 does not require a prescribed ritual. What is required is that the substance of the circumstances surrounding the plea should prevail over form.
Under the circumstances that existed at the time of the 1974 plea, I find it difficult to accept the defendant‘s argument that he was deprived of his constitutional rights. Here, the day before his trial, the defendant was able to negotiate a plea bargain that allowed him to avoid a trial on the offense of escape and habitual criminal. Paren-
The substance of the circumstances surrounding the plea indicates that it was voluntarily made with a clear understanding of the elements and nature of the charge. People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974).
In People v. Pauldino, 187 Colo. 61, 64, 528 P.2d 384, 386, decided in 1974, we noted that the trial court:
“did not specifically explain in detail the elements of the crime of burglary on which defendant admitted the conspiracy count. Nevertheless, the information was read to him in which the count charges he and other defendants did ‘wilfully break and enter, and without force enter, the building * * * with intent then and there to commit the crime of theft.’ No more full explanation of the substantive crime could be given than the charge itself and defendant answered ‘yes’ to the court‘s question whether he understood the charge to which he was pleading.”
In my opinion, the rationale of Pauldino should be followed here and the defendant‘s claim for relief denied. I would affirm the judgment of the court of appeals.
HODGES, C.J., joins in this dissent.
Notes
Although no culpable mental state was included within the statute,“(1) A person commits a class 2 felony if, while being in custody or confinement under a sentence following conviction of a class 1 or class 2 felony, he escapes from said custody or confinement.
“(2) A person commits a class 3 felony if, while being in custody or confinement under a sentence following conviction of a felony other than a class 1 or class 2 felony, he escapes from said custody or confinement.
“(3) A person commits a class 4 felony if, while being in custody or confinement and held for or charged with but not convicted of a felony, he escapes from said custody or confinement.”
Nor does the fact of plea bargaining have any significance to the constitutional requirement of an understandingly made plea. As this court observed in Westendorf v. People, 171 Colo. 123, 126, 464 P.2d 866, 868 (1970):
“[I]t is suggested that because the record ‘smacks of plea bargaining’ the requirement of the rule under such circumstance need not be met. We would not by decision create such an exception to our rule. Indeed, it would seem to us when plea bargaining is suggested, all the greater the need for a judicial determination that the tendered plea of guilty is made voluntarily and with an understanding of the nature of the charge and the consequences flowing from the acceptance of such a plea.”