Opinion
No. 94CA0729
Decided February 23, 1995. Petition for Rehearing DENIED March 23, 1995. Petition for Writ of Certiorari DENIED August 28, 1995.
Appeal from the District Court of the City and County of Denver Honorable Nancy E. Rice, Judge No. 89CR56.
JUDGMENT AFFIRMED.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, A. William Bonner, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Steven E. Chavez, appeals the denial of his motion for post-conviction relief pursuant to Crim. P. 35(c). We affirm.
While driving an automobile, defendant struck a vehicle broadside on a highway ramp, killing two people and injuring four others. Defendant entered guilty pleas to two counts of vehicular homicide and two counts of vehicular assault. In exchange for the guilty pleas, the prosecution dismissed additional counts charging vehicular assault.
Defendant was sentenced to 48 years incarceration on the four convictions, and that sentence was upheld on appeal. See People v. Chavez, (Colo.App. No. 89CA1707, November 29, 1990) (not selected for official publication).
Defendant subsequently filed a Crim. P. 35(c) motion to vacate his guilty pleas, alleging that he had received ineffective assistance of counsel and that the pleas were not intelligently, voluntarily, and knowingly entered. The principal basis for the motion was an allegation that trial counsel had advised defendant that the maximum sentence he could receive was 24 years.
A hearing was held, at which the defendant's trial counsel, the defendant, the defendant's mother, and the prosecutor all testified. The court denied defendant's motion, concluding that trial counsel rendered competent assistance and that the record supported the determination that the pleas were voluntary.
I
Defendant first contends that the court erred in denying his motion based upon the claim of ineffective assistance. We are not persuaded.
In our view, the rule announced in People v. Rael, 681 P.2d 530, 532 (Colo.App. 1984) is dispositive here:
Generally, trial counsel's erroneous assessment of the probable sentence does not constitute ineffective assistance of counsel; however, a statement of promise as to the sentence to be imposed, rather than an expression of opinion only, may constitute such ineffective assistance . . . and, deliberate misrepresentations concerning sentencing which induce a guilty plea may also constitute ineffective assistance.
Here, defense counsel testified that in discussing the potential sentence for the guilty plea "we talked in the area of 24 years." He also indicated that counsel and defendant did not review the aggravating factors which could apply to each count. Defendant's testimony was to the effect that he was "advised" that the maximum sentence would be 24 years.
However, defense counsel confirmed that no promises were made to defendant concerning sentencing. He also confirmed defendant's understanding that the court was not bound to impose any particular sentence and that the court would make the final decision on sentencing.
In addition, prior to the hearing to accept defendant's plea, a meeting was held with the attorney in the district attorney's office assigned to prosecute the case. The meeting was attended by defense counsel, defendant, and defendant's mother. Each testified in the Crim. P. 35(c) hearing relative to the discussion at the meeting.
The trial court found the prosecutor's testimony to be the more credible account of what transpired. The prosecutor testified to advising those present at the meeting that she would seek the maximum sentence that could be imposed for a guilty plea to the four charges. Further, the prosecutor stated that, "I let them know that 48 years was, in my opinion, appropriate." We are bound by the trial court's resolution of the conflict in testimony concerning this meeting. People v. Palmer, ___ P.2d ___ (Colo.App. No. 92CA1835, December 15, 1994).
Finally, at the hearing to accept defendant's plea, the court advised defendant that each of the sentences could be doubled based upon aggravating factors so that the sentence for each vehicular homicide could be as much as 16 years. The court also indicated that the sentences for vehicular assault could also be doubled and thus increased to as much as eight years.
The court then explained to defendant that the sentences could be made consecutive so that:
[T]hey could run one after the other. That is, finish one sentence before you start the next sentence because of the different victims.
Defendant confirmed that he understood the court's advisement.
The court then acknowledged that there had been a promise to dismiss other counts pending against defendant in exchange for his plea to the two vehicular homicides and the two vehicular assault charges. Thereafter, it inquired whether any other promises had been made to entice defendant to enter his guilty plea and defendant advised the court that no additional promises had been made.
The record, therefore, supports the trial court's implicit finding that no specific promise had been made by counsel concerning the sentence and that no deliberate misrepresentations could have been made to defendant concerning the sentence. Further, on this record we reject the contention that counsel's advice concerning the sentence must be characterized as either a promise or a deliberate misrepresentation. Hence, we perceive no error in the court's denial of defendant's motion on this ground.
By reason of our resolution of this issue, it is unnecessary for us to address defendant's contentions relative to the court's findings that he was not prejudiced by counsel's representation.
II
Defendant also contends that his plea was not intelligent, knowing, and voluntary. Again, we are not persuaded.
One of the requirements for entry of a constitutionally valid guilty plea is that the defendant understand the possible penalty or penalties which could be imposed. Crim. P. 11(b)(4); Lacy v. People, 775 P.2d 1 (Colo. 1989), cert. denied sub nom. Colorado v. Lacy, 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 337 (1989).
Here, the record demonstrates that the court gave defendant a complete advisement with respect to the possible penalties in this case.
As noted, the court discussed not only presumptive and aggravated range penalties for each of the convictions, but also the differences between concurrent and consecutive sentences. Finally, defendant was also advised that the length of the sentence to be imposed was entirely up to the court. Defendant confirmed for the court that he understood those advisements.
Under these circumstances, we find no error in the trial court's determination that defendant failed to sustain his burden of demonstrating that the plea was involuntary.
The order is affirmed.
JUDGE PLANK concurs.
JUDGE NEY dissents.