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permitting withdrawal where nothing in the record suggested that defendant, at the time he entered his plea, had been advised or was aware that a sentence in the aggravated range was mandated because of his parole status
Summary of this case from Brooks v. ArchuletaOpinion
No. 85SC296
Decided February 8, 1988.
Certiorari to the Colorado Court of Appeals
Duane Woodard, Attorney General, Charles B. Howe, Deputy Assistant General, Richard H. Forman, Solicitor General, Norman S. Early, Jr., District Attorney, Nathan B. Coats, Chief Appellate Deputy District Attorney, for Petitioner.
David F. Vela, Colorado State Public Defender, Claire Levy, Deputy State Public Defender, Jonathan S. Willett, Deputy State Public Defender, for Respondent.
We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Chippewa, 713 P.2d 1311 (Colo.App. 1985), which held that the district court erred in denying the defendant's motion to withdraw his plea of guilty to attempted first-degree murder. The court of appeals held that the plea had not been entered knowingly and voluntarily as required by due process of law because the district court had given the defendant erroneous information concerning the possible minimum sentence. The court had advised the defendant of the minimum sentence available for attempted first-degree murder in the absence of extraordinary aggravating circumstances rather than the higher minimum sentence applicable to the defendant, who was on parole when he committed the crime. We granted certiorari and now affirm the judgment of the court of appeals. We base our decision, however, on the conclusion that the trial court abused its discretion in refusing to permit withdrawal of the plea. We therefore find it unnecessary to reach the question of whether the defendant's plea was entered knowingly and voluntarily consistent with due process of law, and we express no opinion on that question.
I.
The defendant, Thomas Chippewa, was charged in Arapahoe County District Court with two counts of attempted first-degree murder, two counts of first-degree assault, one count each of first-degree burglary, aggravated robbery, conspiracy, and commission of a violent crime, and two counts of habitual criminality. In exchange for the defendant's guilty plea to a single charge of attempted first-degree murder, a class two felony, the People agreed to dismiss all other charges, and reserved the right to recommend a sentence of sixteen years imprisonment.
The charges arose from the burglary of the residence of Anita Halling on August 22, 1982, during which Halling and Jake Jaramillo were seriously injured. The factual basis offered at the providency hearing indicated that the defendant, together with two female companions, broke into Halling's residence; bludgeoned both Jaramillo and Halling; cut the necks of both victims; and took a number of Halling's possessions.
At the providency hearing on August 3, 1983, the district court questioned counsel for the defense and the prosecution to ascertain whether the defendant was subject to a mandatory aggravated sentence under section 18-1-105, 8B C.R.S. (1986). The attorneys agreed that the defendant was eligible for sentencing in the presumptive range. The court then advised the defendant that the presumptive range of sentencing for the crime to which he was pleading guilty was eight to twelve years. The court also stated that if it found extraordinary mitigating circumstances, the sentence could be as low as four years, and if it found extraordinary aggravating circumstances, the sentence could be as high as twenty-four years. The district court found that the defendant understood the penalty range, the elements of the offense and the rights he was waiving. The court accepted the guilty plea, ordered a presentence investigation, and set a date for a sentencing hearing.
Under § 18-1-105(1)(a)(I), 8B C.R.S. (1986), for any person sentenced for a felony committed after July 1, 1979, and before July 1, 1984, the presumptive range for a class two felony was eight to twelve years plus one year of parole. § 18-1-105(6), 8B C.R.S. (1986), requires that the court impose a definite sentence to incarceration within the applicable presumptive range set forth in subsection (1), "unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less that one-half the minimum term authorized in the presumptive range for the punishment of the offense."
The presentence report, dated October 18, 1983, showed that the defendant was on parole from a North Dakota sentence for manslaughter when he committed the felony to which he pled guilty. Because of the defendant's parole status, the district court was required to impose a sentence in the extraordinary aggravated range under the mandatory sentencing statute. § 18-1-105(9)(a)(II), 8B C.R.S. (1986). Prior to sentencing, the defendant moved to withdraw his guilty plea, alleging that he would not have agreed to the plea bargain had he known of the statutory requirement for a mandatory sentence beyond the presumptive range. On November 4, 1983, the court denied the defendant's motion and sentenced him to eighteen years imprisonment.
§ 18-1-105(9)(a), 8B C.R.S. (1986), provides in pertinent part: "The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term greater than the maximum in the presumptive range, but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony: . . . . "(II) The defendant was on parole for another felony at the time of commission of the felony . . . ."
The district court ruled that the advisement of the possible penalty was adequate under Crim. P 11 because the court told the defendant that he could receive a sentence of up to twenty-four years. The court also explained that it had no information about the defendant's parole status at the providency hearing because it consciously insulates itself from knowledge about a defendant's prior record until a defendant's trial has been completed.
The defendant appealed the district court's refusal to allow him to withdraw his plea. The court of appeals reversed the defendant's conviction on the basis that the district court's failure to inform him of the effect of his parole status on the applicable minimum sentence meant that the defendant did not have the requisite knowledge of the consequences of his plea. The court of appeals concluded therefore that the plea was not entered knowingly and voluntarily as required by due process of law. The court remanded the case to the district court with directions to vacate the guilty plea, reinstate the original charges, and allow the defendant to enter his plea to those charges. The People sought certiorari review of the court of appeals' decision.
We granted certiorari and issued an opinion on June 8, 1987, affirming the judgment of the court of appeals. We concluded that the court of appeals was correct in holding that the defendant's plea was not made knowingly and voluntarily, and we held as well that the trial court abused its discretion in denying the defendant's motion to withdraw the plea. The People petitioned for rehearing, and we granted that petition. We now conclude that the trial court abused its discretion in refusing to permit the defendant to withdraw his plea and that it is unnecessary to reach the constitutional question of whether the defendant's plea was knowingly and voluntarily entered as required by due process of law. We therefore withdraw our original opinion and issue this one in its stead.
II.
Crim. P. 32(d) provides for a motion to withdraw a plea of guilty before sentence is imposed. To warrant the withdrawal of a guilty plea before the imposition of sentence, a defendant has the burden of establishing a "fair and just reason" for the withdrawal. People v. Gutierrez, 622 P.2d 547, 559 (Colo. 1981); People v. Martinez, 188 Colo. 169, 172, 533 P.2d 926, 928 (1975). See III ABA Standards for Criminal Justice § 14-2.1(a) (2d ed. 1980) ("before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea"). A motion to withdraw a plea of guilty is addressed to the sound discretion of the court. People v. Gutierrez, 622 P.2d at 559; People v. Martinez, 188 Colo. at 172, 533 P.2d at 928; People v. Riley, 187 Colo. 262, 265, 529 P.2d 1312, 1313 (1975); Maes v. People, 155 Colo. 570, 574, 396 P.2d 457, 459 (1964). We will not overturn the denial of a motion to withdraw a guilty plea unless the trial court abused that discretion. People v. Gutierrez, 622 P.2d at 559; People v. Martinez, 188 Colo. at 172, 533 P.2d at 928; People v. Riley, 187 Colo. at 265, 529 P.2d at 1313; Maes v. People, 155 Colo. at 574, 396 P.2d at 459.
Prior to accepting the defendant's plea of guilty to attempted first-degree murder, the trial court conducted an extensive providency hearing. At that hearing the court explained the possible sentences in detail, as well summarized by the court of appeals:
"Addressing the penalties and consequences of defendant's plea, the trial court advised him that: (1) he could presume that the sentence would be within the range of eight to twelve years; (2) if the trial court found mitigation, the sentence could be as low as four years; (3) if the trial court found extraordinary aggravating circumstances, the sentence could be as high as twenty-four years; and (4) despite the People's intent to seek an aggravated sentence of up to sixteen years and defense counsel's attempt to persuade the court to impose a sentence within the presumptive range, the sentence to be imposed was within the court's sole discretion."
People v. Chippewa, 713 P.2d at 1313.
The court explained the possible penalties as follows: "THE COURT: Mr. Chippewa, when you plead guilty to this charge the Court could impose a sentence of from 8 to 12 years. In Colorado that is called a presumptive range. That means that you can presume that if a sentence was imposed it would be within that bracket — 8 to 12 years. The law also provides that the minimum sentence need not be 8 years. If the Court found mitigation in the case or matters that were in your favor, if the Court found mitigation, then a minimum sentence could be 4 years. The law also provides that if the Court were to find that this case was aggravated in its nature, then a maximum sentence would not be limited to 8 years — or, pardon me — but a maximum sentence could go as high as 24 years. Unless the Court found either mitigation or aggravation, a sentence would be within the range of 8 to 12 years. Do you understand what I'm talking about? "THE DEFENDANT: Yes. "THE COURT: Now, you listened to the District Attorneys and they have indicated that at a sentencing hearing they are going to ask the Court to find that this case is aggravated, and ask the Court not to sentence within the presumptive range for a maximum of 12 years, but rather to exceed it and impose a sentence of 16 years. Do you understand what they are saying? "THE DEFENDANT: Yes. "THE COURT: Your attorney has pointed out — and I think you will learn — in a sentencing hearing many endeavor to persuade the Court that a sentence should not exceed the presumptive range. But what you need to understand is this: sentencing is the Court's function. The District Attorney's Office can argue whatever they want to, but they don't call the shot. They might like to, but the law doesn't give them the power to do it, nor does your attorney. They offer viewpoints addressed to the Court, and that's what the Court does then, weighs it all and then calls it. Do you understand? "THE DEFENDANT: Yes. "THE COURT: Do you have any confusion about that? "THE DEFENDANT: No. "THE COURT: Though the People will attempt to exceed the presumptive range and ask the Court to impose a sentence of 16 years, whether the Court does that or not, you will know at the same moment they know. By the same token, just because the People ask for maximum sentence of 16 years doesn't mean the sentence will be a maximum of 16 years. The Court could still go up to 24 years or anything in between — or anything in between 12 and 24. Do you fully understand that, Mr. Chippewa? "THE DEFENDANT: Yes."
The trial judge was unaware at the time of entry of the plea that the defendant had been on parole when the offense was committed and that, therefore, a sentence in the aggravated range was mandated by statute. See § 18-1-105(9)(a)(II), 8B C.R.S. (1986). The responses of the prosecution and defense counsel to questions by the judge indicate that they as well were unaware of the defendant's parole status. The defendant was therefore specifically advised by the court that it could impose a sentence within the eight to twelve years presumptive range and if the court found mitigating circumstances, the sentence could be as low as four years imprisonment. There is nothing in the record to suggest that the defendant, at the time he entered his plea, had been advised or was aware that a sentence in the aggravated range was mandated because of his parole status. Indeed, all indications in the record are to the contrary. Cf. People v. Alexander, 724 P.2d 1304, 1308-09 (Colo. 1986) (defendant who is subject to sentence in aggravated range because he was on parole at time of commission of felony is entitled to reasonable notice and to require the prosecution to prove his parole status); People v. Lacey, 723 P.2d 111, 113 (Colo. 1986) (same, when extraordinary aggravating circumstance is status as a probationer at time of commission of felony).
The district court's advisement that the sentence could be as little as four years and that the defendant could presume that his sentence would be in the eight to twelve year range gave the defendant every reason to believe that he could receive a sentence that he was ineligible to receive. The People argue, however, that this misinformation did not prejudice the defendant because the court in fact imposed a sentence of eighteen years. The People assert that a court should allow withdrawal of a plea before sentencing only if the trial court would be precluded by a higher mandatory minimum sentence requirement from imposing a sentence that it otherwise would consider appropriate. By imposing a sentence six years greater than that required by the statute, the court here, according to the People, demonstrated that its exercise of discretion at the lower end of the sentencing range had not been constrained by the mandatory minimum.
The People's argument is not persuasive. The defendant sought withdrawal of his guilty plea before he was sentenced, and the district court should not have considered the sentence it intended to impose as a reason for denying the defendant's motion to withdraw his plea. The issue at the time the court considered the motion was whether the defendant had established a fair and just reason for withdrawal of his guilty plea. Moreover, the People provide no authority for their suggestion that the standard for withdrawal of a plea before sentencing should be whether the mandated minimum sentence, of which the defendant was not advised, would preclude the trial court from imposing a sentence that it otherwise would consider appropriate.
When the probation report was issued, the defendant's parole status became known to counsel and the court. The defendant then promptly moved to withdraw his plea of guilty on the basis that the possibility of a sentence of less than twelve years was completely foreclosed, contrary to the advisement that he had been given by the court. The record does not reflect that the prosecution would have been prejudiced in any way by withdrawal of the guilty plea. Under these circumstances, we conclude that the defendant established a fair and just reason for withdrawal of his guilty plea and that the trial court abused its admittedly broad discretion in denying his motion to withdraw the plea.
We base our decision today on abuse of discretion principles. Therefore, we need not reach the constitutional question of whether the defendant's plea was entered knowingly and voluntarily. See, e.g., People v. Bossert, 722 P.2d 998, 1004 (Colo. 1986) (court will not address constitutional question unless it is essential to resolution of case). The court of appeals addressed the constitutional question unnecessarily, and we express no opinion on the correctness of its conclusion that the defendant's plea was constitutionally invalid because it was not entered knowingly and voluntarily. Even though we accepted certiorari to consider the constitutional issue, we do not believe it appropriate to address that issue because the court of appeals judgment can be sustained on a nonconstitutional ground.
We affirm the judgment of the court of appeals.
JUSTICE VOLLACK dissents; JUSTICE ERICKSON and JUSTICE ROVIRA join in the dissent.