We have held that in order to obtain a free transcript, a defendant must demonstrate that he may be entitled to relief under Crim. P. 35(c), Romero v. District Court, 178 Colo. 200, 202, 496 P.2d 1049, 1050 (1972), and that the record might contain specific facts that would substantiate alleged errors, Snavely v. Shannon, 182 Colo. 223, 226, 511 P.2d 905, 907 (1973); People v. Manners, 878 P.2d 71, 72 (Colo.App.), cert. denied, No. 94SC182 (Aug. 8, 1994). It is not sufficient for the defendant to establish only that he is indigent and would like a free transcript. Carr v. District Court, 157 Colo. 226, 228, 402 P.2d 182, 183 (1965). Similarly, the United States Supreme Court held in United States v. MacCollom, 426 U.S. 317 (1976), that a free transcript for preparing a postconviction motion pursuant to 28 U.S.C. § 2255 may constitutionally be predicated on a showing that the petitioner has non-frivolous claims and a need for the transcript.
See Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970); Carr v. District Court, 157 Colo. 226, 402 P.2d 182; and Peirce v. People, 158 Colo. 81, 404 P.2d 843 (1965). Petitioner asserts that "a gross miscarriage of justice occurred," and that he is "being held illegally in violation of the 14th Amendment to the United States Constitution and Article 4, Section 18 of the Colorado Constitution."
[1,2] To warrant the furnishing of a free transcript, the petitioner must make some showing that "the furnishing of such would not be a vain and useless gesture." Carr v. District Court, 157 Colo. 226, 402 P.2d 182. There must be a showing that the petitioner would be entitled to relief under Crim. P. 35(b). See Peirce v. People, 158 Colo. 81, 404 P.2d 843. Conceivably, petitioner's assertion that "he did not knowingly and intelligently and voluntarily plead guilty to the crime charged," could entitle him to have transcribed the portion of the record involving the lower court's advisements to petitioner pursuant to Crim. P. 11(c).
A motion for review in the trial court as contemplated by the provisions of Crim. P. 35(b), is insufficient and may be summarily denied where, as here, it does not specify the facts which constitute the basis for the unconstitutional charge. DeBaca v. People, 170 Colo. 415, 462 P.2d 496; Peirce v. People, 158 Colo. 81, 404 P.2d 843; and Carr v. District Court, 157 Colo. 226, 402 P.2d 182. [3] It is also urged that the trial court erred in not having Hooker present when it ruled on his motion. If an evidentiary hearing under Rule 35(b) would have been required, then petitioner's presence would, under most circumstances, be necessary. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473; Deaton v. United States, 422 F.2d 345 (6th Cir.); State v. Sisk, 79 N.M. 167, 441 P.2d 207. No evidentiary hearing was necessary here and therefore no error was committed in this respect.
To warrant the furnishing of a free transcript, the petitioner must make a showing that "the furnishing of such would not be a vain and useless gesture." Carr v. District Court, 157 Colo. 226, 402 P.2d 182. When the time for appeal has expired, there must be a showing by the petitioner that he would be entitled to relief under Crim. P. 35(b).
A motion for a 35(b) review is insufficient, where, as here, it does not specify the facts which constitute the basis for the unconstitutional charge. Peirce v. People, 158 Colo. 81, 404 P.2d 843; Carr v. District Court, 157 Colo. 226, 402 P.2d 182. Because of the insufficiency of the motion as to any constitutional issue, the trial court did not commit error in denying it.
No appeal to the denial of that motion has been taken by Sherbondy. We are not unmindful of our pronouncements in Peirce v. People, 158 Colo. 81, 404 P.2d 843, and Carr v. District Court, 157 Colo. 226, 402 P.2d 182. Sherbondy has not made the showing which we said in those cases should be made which would entitle him to a free transcript. However, Sherbondy's case, we believe, is unique, and in the particular situation involved here a rigid adherence to Peirce and Carr would unduly handicap Sherbondy and be particularly harsh on him. As has been noted, at the time of his conviction he was a youth 17 years old. He could not be expected to remember in the ensuing 32 years all that transpired upon the taking of his plea and what omissions, if any, may have occurred. If the antecedent warnings which we now hold are constitutionally required were not given, it would probably not be within his memory.
Further, that such a refusal of his motion was a violation of defendant's constitutional rights. [1-3] As to counsel's request for the free transcript, the showing made in the trial court comports with the requirements set forth in Carr v. District Court, 157 Colo. 226, 402 P.2d 182 (1965); and Peirce v. People, 158 Colo. 81, 404 P.2d 843 (1965), and it should have been granted when made as to the pertinent portion of the record required for the motion, in order to permit Cheatwood properly to prepare his Motion for a New Trial. Although such a transcript now appears in the record, the grant thereof was only made after appellate review was to be sought on the ruling denying the new trial.
To merely charge that a proceeding was "unconstitutional" and nothing more is wholly insufficient as a basis for relief or review in this court. The trial court so held and so do we. Carr v. District Court, 157 Colo. 226, 402 P.2d 182 (1965). [2-4] To summarize then:
To warrant supplying a defendant with a free transcript, the defendant must make some showing that "the furnishing of such would not be just a vain and useless gesture." Carr v. District Court, 157 Colo. 226, 228, 402 P.2d 182, 183 (1965); see also Snavely v. Shannon, 182 Colo. 223, 511 P.2d 905 (1973); People v. Montoya, 640 P.2d 234 (Colo.App. 1981). That is, a defendant must demonstrate that he may be entitled to relief under Crim. P. 35(c), Romero v. District Court, 178 Colo. 200, 496 P.2d 1049 (1972), and that the record might contain specific facts that would substantiate any alleged errors.