Summary
upholding punishment "where it does not shock the conscience of the court"
Summary of this case from State v. GardnerOpinion
No. 22558.
Decided May 6, 1968.
Defendant was convicted of unlawful and felonious possession of narcotic drugs. From a denial of his motion to vacate and set aside the judgment, the defendant brought error.
Affirmed.
1. COURTS — United States Supreme Court — Escobedo — Miranda — Inapplicable — Denial of Counsel — Arraignment. The United States Supreme Court cases of Escobedo v. Illinois and Miranda v. Arizona do not apply to a situation where a defendant in a post conviction relief hearing argues that he was denied effective assistance of counsel at the time of arraignment.
2. United States Supreme Court — Escobedo — Miranda — Retroactive — Negative. The United States Supreme Court cases of Escobedo v. Illinois and Miranda v. Arizona pertaining to the constitutional mandate of providing counsel at pre-arraignment questioning are not retroactive in their application.
3. Counsel — Denial — Arraignment — United States Supreme Court — Gideon Case — Applicability. In situations involving a claim that the trial court failed to provide counsel at the arraignment rather than with it failure to provide counsel at pre-arraignment questioning, the United States Supreme Court case of Gideon v. Wainwright becomes the applicable authority.
4. CRIMINAL LAW — Possession of Narcotics — Arraignment — Right to Counsel — Advice — Waiver. In prosecution for unlawful and felonious possession of narcotic drugs, where record reveals that defendant, at arraignment hearing, was advised several times that he was entitled to a lawyer and that if he wanted one the court would appoint one, and where colloquy between defendant and court indicates that defendant was a person of age, intelligence and not new to arraignment procedures, held, under the totality of circumstances, trial court was correct in holding that defendant was completely advised by trial judge of his right to counsel and knowingly waived it.
5. Plea of Guilty — Threats — Promises — Invalidity. Pleas of guilty induced by threats or promises are not valid.
6. Post Conviction — Setting Aside Plea — Burden — Proof — Petitioner — Coercion. Upon post conviction procedures to set aside a plea of guilty, it becomes the burden of the petitioner to establish that the plea was entered because of coercion.
7. CONSTITUTIONAL LAW — Due Process Clause — Judge — Assumption — Officers — Arrest and Interrogation — Promises or Threats — Perjury — Negative. Nothing in the due process clause of the fourteenth amendment requires a state court judge to assume that arresting officers, involved in the arrest and interrogation of a defendant, who categorically deny defendant's claims that promises or threats were made to him, are committing perjury.
8. CRIMINAL LAW — Conflicting Testimony — Resolutions — Support — Record — Binding — Review. A trial court's resolution of conflicting testimony which is adequately supported by the record is binding on review.
9. Cruel and Unusual Punishment — Statute — Marijuana — Negative. The statute forbidding the use and possession of marijuana does not violate the constitutional mandate against the imposition of cruel and unusual punishment.
10. STATES — Power — Punishment — Violation — Statute — Legislative — Negative — Judicial. The power to declare what punishment may be assessed for violation of a statute is legislative not judicial.
11. CRIMINAL LAW — Narcotics — Statute — Prevention of Danger — Welfare — Cruel and Unusual Punishment — Prison Term — Propriety. In prosecution for the unlawful and felonious possession of narcotic drugs, reviewing court cannot say, as a matter law, that a statute, having for its purpose the prevention of use of a substance which presents a danger to the public safety and welfare of the community, provides for cruel and unusual punishment by authorizing a prison term of not less than two years or more than fifteen years.
12. Narcotics — Sentence — Cruel and Unusual Punishment — Negative — Statutory Limits. Imposition of sentence from six to ten years in state penitentiary for conviction of unlawful and felonious possession of narcotic drugs was not the imposition of a cruel and unusual punishment, since the sentence was within the statutory limits and did not shock the conscience of the court.
Error to the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Edward H. Sherman, Public Defender, Truman Coles, Deputy, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John P. Moore, Assistant, Paul D. Rubner, Assistant, for defendant in error.
Plaintiff in error, hereinafter designated as Normand, was charged in the district court with unlawful and felonious possession of narcotic drugs, namely, cannabis sativa L. (marijuana). On November 1, 1963, Normand entered a plea of guilty to the charge and was thereafter sentenced to a term of from six to ten years in the state penitentiary. On November 8, 1965, Normand filed a Motion to Vacate and Set Aside the Judgment under Rule 35(b) of the Colorado Rules of Criminal Procedure. Counsel was thereupon appointed and an evidentiary hearing held. Upon completion of the hearing, the motion was denied and Normand seeks reversal here.
Normand's argument here is threefold: (1) he was denied effective assistance of counsel at the time he pleaded guilty; (2) his plea of guilty was coerced; and (3) the statute forbidding the possession of cannabis imposes cruel and unusual punishment and is therefore unconstitutional. We hold that the record before us demonstrates that all three contentions are without merit.
I.
[1,2] To place Normand's argument that he was denied effective assistance of counsel in proper perspective, we point out that neither Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, nor Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applies here. Both were decided after the sentence in this case, and neither is retroactive in its application. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
Moreover, we are dealing here with a claim that the trial court failed to provide counsel at the arraignment rather than with a failure to provide counsel at pre-arraignment questioning. In such cases, of course, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, becomes the applicable authority.
Our examination of the record at the arraignment hearing discloses that the court advised Normand, not once, but several times, that he was entitled to a lawyer and that if he wanted one, the court would appoint one. Normand's reply was as follows:
"It is not necessary to have counsel, is it, by law?"
The court replied that it was not, and Normand advised the court that he wanted to proceed. The colloquy between Normand and the court indicates that Normand was twenty-five years old and a person of intelligence; that he had two former convictions and was not new to the arraignment procedures; that he knew, for instance, that his former convictions barred probation. The totality of the circumstances as shown by the record at the arraignment and the record at the Rule 35(b) hearings convinces us that the trial court was correct in holding that Normand was completely advised by the trial judge of his right to counsel and intelligently and knowingly waived that right.
II.
[5-8] Normand's claim that his plea of "guilty" was coerced became, as a result of the testimony taken at the Rule 35(b) hearing, one on which there was conflicting testimony. Normand testified that the arresting and questioning police officers promised him a light sentence or probation if he cooperated. A review of the record at the arraignment hearing reveals that Normand told the trial judge that the knew he was not eligible for probation. Of course, pleas of guilty induced by threats or promises are not valid, Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003, but upon post-conviction procedures to set aside such a plea, it becomes the burden of the petitioner to establish that the plea was entered because of coercion. See Sandoval v. Tinsley, 388 F.2d 48 (10th Cir.). Here, the three police officers involved in the arrest and interrogation of Normand categorically denied his claims that promises or threats were made to him. We would point out that we subscribe to the United States Supreme Court's statement in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, that "nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge . . . to assume the arresting officers are committing perjury." The trial court's resolution of the conflicting testimony is adequately supported by the record and is, therefore, binding upon us.
III.
We reject Normand's claim that the statute forbidding the use and possession of marijuana imposes cruel and unusual punishment, and that his sentence particularly inflicted cruel and unusual punishment upon him. We held in People v. Stark and Peacock, 157 Colo. 59, 400 P.2d 923, that classification of cannabis (marijuana) as a narcotic was not unconstitutional and in doing so we found "that the use of marijuana and other drugs presents a danger to the public safety and welfare of the community since they are clearly related to each other and to the commission of crime."
[10-12] The power to declare what punishment may be assessed for violation of a statute is legislative and not judicial. We cannot say, as a matter of law, that a statute, having for its purpose the prevention of use of a substance which presents a danger to the public safety and welfare of the community, provides for cruel and unusual punishment by authorizing a prison term of not less than two years or more than fifteen years. Nor can we find cruel and unusual punishment as proscribed by the United States and Colorado Constitutions to be present as it affects the particular individual involved where the sentence is, as it is here, within the statutory limits, Walker v. People, 126 Colo. 135, 248 P.2d 287, and where it does not shock the conscience of the court, as it does not here.
The judgment is affirmed.
MR. CHIEF JUSTICE MOORE and MR. JUSTICE KELLEY concur.