Opinion
No. 00SC240
July 2, 2001 As Modified on Denial of Rehearing August 20, 2001
Certiorari to the Colorado Court of Appeals, Court of Appeals No. 98CA791.
Judgment Affirmed.
No. 00SC240: Young v. People - Mandatory Parole — Community Corrections — Department of Corrections — Providency Hearing — Plea Agreement — Rule 11 Advisement
In this case, and its companion Dawson v. People, No. 99SC995 (July 2, 2001), the supreme court holds that at a providency hearing, a trial court must advise a defendant of both the possible incarceration sentence and the attendant mandatory parole, even if the parties to a plea agreement have stipulated to a sentence to probation or community corrections. Failure to advise a defendant properly of the mandatory parole attendant upon a sentence to incarceration results in a Crim. P. 11 advisement violation. However, if the incarceration time to which the court sentenced defendant plus the period of mandatory parole fits within the range of the sentence that the trial court advised the defendant he was "at risk of receiving," then the error is harmless.
Here, defendant Young received an inadequate Crim. P. 11 advisement because the trial court failed to advise him that a sentence to the Department of Corrections (DOC) included an additional term of mandatory parole. The trial court sentenced Young to community corrections, but converted the sentence into a DOC sentence, which carries a period of mandatory parole.
The supreme court finds the trial court's failure to advise Young of mandatory parole harmless because the trial court's advisement to Young of the maximum available sentence of imprisonment was sufficient to include his DOC sentence and mandatory parole.
David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, Attorneys for Petitioner.
Ken Salazar, Attorney General, Christine Cates Brady, Assistant Attorney General Appellate Division, Criminal Justice Section, Denver, CO, Attorneys for Respondent.
Defendant, Michael Shane Young, claims that his plea of guilty was infirm because the trial court did not advise him of the mandatory parole consequences of a sentence to incarceration at the time of the providency hearing. In analyzing Defendant's claims, we first restate the proposition that mandatory parole is a direct consequence of a plea of guilty to a felony that could carry a prison sentence. Hence, the trial court must so advise the defendant at the providency hearing, although the failure to do so may be harmless error. Even if the parties have reached a stipulated plea agreement contemplating a sentence to probation or community corrections, the providency advisement must include both the possible incarceration sentence and the attendant mandatory parole, because those are the penalties the court may impose as a result of the guilty plea. Although the trial court did err in this case in failing to advise the defendant of mandatory parole, the error was harmless because the defendant's sentence to incarceration and associated mandatory parole fit within the scope of the sentence that the trial court advised the defendant he risked receiving as a result of his guilty plea. Accordingly, we affirm the court of appeals' decision in People v. Young, No. 98CA791, (Colo.App. Dec. 16, 1999) (not selected for official publication), upon somewhat different reasoning.
I.
On January 14, 1994, in Case No. 93CR696, Michael Shane Young (Young) pleaded guilty to first degree criminal trespass, a class 5 felony pursuant to section 18-4-502, 6 C.R.S. (2000), and misdemeanor criminal mischief, a class 2 misdemeanor pursuant to section 18-4-501(1), 6 C.R.S. (2000). At the providency hearing the trial judge advised Young that the class 5 felony carried a presumptive sentence from one to three years in the Department of Corrections (DOC) plus two years of mandatory parole. On April 4, 1994, the trial court sentenced Young to six years probation.
The following year, in Case No. 95CR95, the State charged Young with sale of a schedule II controlled substance, a class 3 felony in violation of section 18-18-405(2)(a)(I), 6 C.R.S. (2000), and attempted sale of a schedule II controlled substance, a class 4 felony in violation of section 18-2-101, 6 C.R.S. (2000). On August 21, 1995, Young pled guilty to attempt to commit the crime of unlawful sale of a schedule II controlled substance. The plea agreement included a stipulated sentence of five years in DOC. Additionally, Young agreed to confess to the State's motion to revoke his probation violation allegation in 93CR696. At the providency hearing, the trial court stated to Young that "the parties here have agreed that you would be sentenced to prison, if you do plead guilty, for five years. I don't have to accept that agreement, and I say that because I will know more about the case and more about you at the sentencing hearing." The court advised Young that he could be sentenced within a range of two to six years, or, upon a finding of extreme aggravating circumstances, up to twelve years. The trial court failed to advise the defendant of a mandatory parole period.
The trial court sentenced Young to community corrections for concurrent terms of three and six years. Although both the mittimus and the transcript of the sentencing proceeding indicate that the trial court imposed a sentence of six years to community corrections, the minute order entered after sentencing reflects a sentence of five years to community corrections. The trial court later acknowledged that the correct sentence was five years in community corrections.
Because the community corrections facility had a wait list, the court remanded Young into custody until bed space became available. While Young awaited entrance into community corrections, the State filed a Motion to Terminate and Transfer Custody. The motion alleged that Young had "violated the terms and conditions of his sentence" because "while awaiting placement at Community Corrections, the defendant's motivation level and attitude toward supervision has significantly deteriorated and poses a substantial risk of management-related difficulties."
The trial court accepted that Young was no longer appropriate for community corrections, and held a hearing at which he transferred Young's two sentences to five years in DOC and three years in DOC to be served concurrently. In imposing the sentence, the court mentioned that, "There is a period of parole prescribed by the statute." The court's mittimus stated "DOC 5 years. Statutory parole."
On November 21, 1997, Young filed a Crim. P. 35(c) motion requesting that his five year sentence to DOC be reduced because the district court did not advise him of the mandatory parole period when he pleaded guilty in that case. The district court denied the motion. Young appealed, arguing that his five year DOC sentence should be reduced to two years of incarceration plus three years of mandatory parole to comport with his reasonable understanding of the 1995 plea agreement. The court of appeals, relying on People v. Johnson, 987 P.2d 928 (Colo.App. 1999),rev'd, 13 P.3d 309 (Colo. 2000), reversed the district court's order and remanded for resentencing. People v. Young, No. 98CA791, (Colo.App. Sept. 16, 1999) (not selected for publication).
The State subsequently filed a petition for rehearing, and the court of appeals ultimately concluded that any error in the advisement was harmless under Craig v. People, 986 P.2d 951 (Colo. 1999), because the trial court's advisement to Young of the maximum available sentence of imprisonment was sufficient to include his DOC sentence and mandatory parole. People v. Young, No. 98CA791, (Colo.App. Dec. 16, 1999) (not selected for publication).
II. A.
We deal in this case, as we have in a number of other recent cases, with the requirements for advisements of defendants entering pleas of guilty to pending criminal charges. The simple premise with which we must begin is that a defendant must understand the effect of his plea in order to be deemed to have entered such plea knowingly, voluntarily and intelligently.
Because of the nature of criminal proceedings, the responsibility for documenting on the record that level of understanding falls primarily on the trial court. Accordingly, Crim. P. 11 outlines the nature of the necessary advisement for a sufficient plea of guilty.
However, that simple premise quickly fractures into a series of questions and dilemmas, some of which we have addressed previously in our case law and others of which continue to arise. We here recite the principles that guide our resolution of these questions.
First, Colorado requires a mandatory period of parole for all class 2 through class 6 felony convictions involving a sentence to a term of imprisonment. § 18-1-105(a)(V)(A), 6 C.R.S. (2000). Mandatory parole is a direct and automatic consequence of a sentence to DOC, and during that period of parole, the defendant remains at risk of reincarceration. Accordingly, it makes sense that to understand the "possible penalty or penalties" as required by Crim. P. 11, the court must advise the defendant of mandatory parole. Benavidez v. People, 986 P.2d 943, 950 (Colo. 1999).
We dealt with the resentencing of a felony offender who is rejected after acceptance by a community corrections program in People v. Johnson, 13 P.3d 309 (Colo. 2000). In Johnson, we held that the term "offender's sentence" in section 17-27-105(1)(e), 6 C.R.S. (2000), which permits a court to resentence a felony offender who is rejected from a community corrections program, refers only to the term of incarceration in DOC, not to mandatory parole. 13 P.3d at 314. Thus, a defendant originally sentenced to community corrections for five years can be resentenced to five years in DOC plus a mandatory period of parole without violating section 17-27-105(1)(e). Id. The Johnson opinion did not discuss the validity of the defendant's plea under Crim. P. 11. Id. at 312 n. 3.
Second, in determining whether or not a defendant received a proper Crim. P. 11 advisement, we look to whether the record as a whole shows that defendant received sufficient information as to be fairly placed on notice of the matter in question. Benavidez, 986 P.2d at 950. If the Crim. P. 11 advisement indicates an affirmative waiver by the defendant, then he has the burden to prove, by a preponderance of evidence, the ineffectiveness of his apparent waiver.Craig, 986 P.2d at 964.
Third, if the advisement is infirm, then the court will determine whether it can correct the error. If the incarceration time to which the court sentenced defendant plus the period of mandatory parole fits within the range of the sentence that the trial court advised the defendant he was "at risk of receiving," then we deem the error harmless. Specifically, "the error is harmless if the prison sentence imposed and the mandatory parole term, combined, do not exceed the prison time the defendant was advised of and risked receiving." Benavidez, 986 P.2d at 948. The substituted prison sentence and the parole term, combined, cannot exceed the prison time the defendant was advised of and risked receiving. Id. If the error cannot be corrected, the defendant can withdraw his plea. Craig, 986 P.2d at 964.
Further, we have clarified that the interpretation and implementation of a plea agreement between the People and the defendant is separate from the inquiry of whether the defendant has been properly advised of the possible consequences of his plea. The latter inquiry relates to the court's responsibility to assure that the defendant understands what the consequences of his plea could be.
Benavidez v. People, 986 P.2d 943 passim, dealt extensively with the construction of a plea agreement in the context of mandatory parole implications. To the extent that Young argues that the plea agreement itself failed to include a reference to mandatory parole and was, therefore, illegal, we disagree. In Craig and Benavidez we held that the reference in a plea agreement to a "sentence" stipulation refers to incarceration time at DOC and should not be read to omit mandatory parole. Craig, 986 P.2d at 961; Benavidez, 986 P.2d at 948.
More importantly, the Rules of Criminal Procedure clearly presume that a trial court is not bound by "any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any." Crim. P. 11(b)(5). The Rule further amplifies that the judge in "every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions." Crim. P. 11(f)(5). Accordingly, when we analyze the sufficiency of a providency hearing advisement, we do so with the clear understanding that the judge advises the defendant of the consequences to which the plea could subject him or her under the applicable statutes, not under the plea agreement, and that the judge makes no representations at the providency hearing that he or she will accept the plea agreement.
The defendant retains the right to withdraw his plea at or before the sentencing hearing if the judge determines that he or she will not follow the charge or sentence concessions contemplated by the plea agreement. Crim. P. 32(d); People v. Wright, 38 Colo. App. 271, 274, 559 P.2d 249, 251 (1976). Whether the court's sentence does or does not comport with the agreement is a matter addressed to the sound discretion of the court. People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988).
Here, the original sentence stipulation was for a five year sentence to DOC. The defendant himself requested that the trial court convert his sentence to a sentence to community corrections, which the trial court did. Ultimately, the sentence reverted to a DOC sentence, because the defendant was not admitted to community corrections. The defendant does not allege that the trial court failed to follow the plea agreement. The defendant here never sought to withdraw his plea.
The trial court is not bound by the parties' plea agreement, and has an independent duty to examine the appropriate sentence prior to issuance of that sentence. Hence, the defendant is truly at risk of receiving any sentence permitted by the statutes for the crime to which he offers a plea of guilty, subject always to his right to withdraw the plea at or prior to sentencing if the court diverges from the contemplated agreement. Accordingly, when we look at the record to determine what the defendant understood he "risked receiving" at the time he entered his plea, we look to the maximum statutory exposure recited by the court or included in the documentation.
An exception to that rule occurs when the trial court explicitly states at the providency hearing that it will accept and agree to be bound by the plea agreement, and so advises the defendant. In Clark v. People, 7 P.3d 163 (Colo. 2000), we addressed just that situation. Clark involved a plea agreement in which the parties stipulated to a three year "cap" on the defendant's period of incarceration. 7 P.3d at 165. At the providency hearing, the trial judge advised the defendant of the maximum period of incarceration he could impose, but stated that, if he sentenced defendant "to the Department of Corrections, it will not exceed three years." Id. Accordingly, we determined that when a trial judge explicitly states that he will adhere to the plea agreement upon sentencing, "the stipulated maximum term of imprisonment supplants the statutory maximum term of imprisonment described by the trial court during the Crim. P. 11 advisement." Id. at 166.
B.
With that background, we turn to the specific legal question posed by this case: namely, whether the record must show that a defendant who was sentenced to community corrections understood that a possible sentence to the DOC would carry a period of mandatory parole.
We restate our two basic premises: first, that the record of a providency hearing must demonstrate that the defendant understood the "possible penalty or penalties" attendant upon his plea; and second, that any plea agreement between the People and the defendant does not bind the court and therefore does not circumscribe the penalties of which the defendant should be advised.
Hence, although mandatory parole is clearly not an inevitable consequence of a sentence to probation or to community corrections,People v. Birdsong, 958 P.2d 1124, 1128 (Colo. 1998); Benavidez, 986 P.2d at 950, the scope of the providency hearing must address mandatory parole just as it must address the possible sentence to DOC. The trial court implicitly reserves the right to impose a sentence to DOC based upon the plea of guilty, and that sentence would carry a period of mandatory parole. Thus, the trial court must so advise the defendant.
III.
We now discuss the specific facts of this case and how they fit into the scheme we set out above. The initial advisement Young received in case No. 93CR969 was that he could be subject to a term of one to three years in DOC, plus two years of mandatory parole. Some eighteen months later, at the hearing at which Young pled guilty to attempted sale of a controlled substance in case No. 95CR95, the court advised Young that he could be subject to a sentence of from two to six years in prison, or up to twelve years under extreme aggravating circumstances. The court then sentenced him to five years in community corrections, which was converted into a DOC sentence when defendant became ineligible for community corrections.
Applying the principles we have developed, we first note that both in 1994 and in 1995, the parties tendered stipulated plea agreements; however, the trial court did not affirmatively agree to be bound by those stipulated sentences, and in fact, indicated to the contrary that it reserved the right to reject the agreement until sentencing.
Hence, just as Young was entitled to be advised of the DOC sentence that his pleas could warrant, so, too, was he entitled to an advisement to the mandatory parole consequences of the plea. The 1994 advisement included a reference to mandatory parole, and the correct term of such parole. The 1995 advisement did not, and was therefore deficient.
Thus, we turn to whether the trial court committed harmless error, and we conclude that it did. The court advised Young that he risked receiving a sentence of twelve years to DOC. Ultimately, he received a sentence of five years, which carried a mandatory parole term of three years. The period of incarceration plus the term of mandatory parole fits within the range of sentence that the court advised Young he risked receiving, and therefore, Young suffered no prejudice.
IV.
Consequently, we affirm the court of appeals decision in denying defendant's request for relief under Crim. P. 35(c).
JUSTICE MARTINEZ dissents, and JUSTICE BENDER joins in the dissent.