Opinion
Aug. 6, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1310
John D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol.Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rossman & Rossman, Melvin Rossman, Denver, for defendant-appellant.
BERMAN, Judge.
Defendant, Vincent Albert Denton, entered pleas of guilty on October 28, 1970, to grand theft (1967 Perm.Supp., C.R.S.1963, 40--5--2), and first degree burglary (1965 Perm.Supp., C.R.S.1963, 40--3--5). He was sentenced to serve three to seven years and five to ten years, respectively, terms to run concurrently. His motion to vacate judgment and sentence under Crim.P. 35(b) was denied, and this appeal followed. We reverse.
Defendant contends that his pleas of guilty were invalid because the trial court failed, pursuant to Crim.P. 11, to make a determination as to his understanding of the nature and elements of the charges prior to accepting his guilty pleas.
The pleas of guilty to two cases were the result of plea bargaining by defendant's appointed counsel, who is not the attorney representing him here. Seven separate informations were filed against the defendant during the period 1969--1970. Five of the informations involved multiple counts of burglary, conspiracy to commit burglary, and theft by receiving, and one involved aggravated robbery and conspiracy to commit aggravated robbery. The remaining information involved illegal possession of marijuana.
Before accepting defendant's guilty pleas, the trial court advised defendant of his constitutional rights to a trial by jury, to appointed counsel, and of the possible sentences. After determining that no threats or promises had been made to induce the pleas, the trial court accepted defendant's guilty pleas. No factual basis for the pleas was presented to the trial court at the time they were accepted. Under Crim.P. 11, the trial court is required to determine that the 'defendant understands the nature of the charge and the elements of the offense to which he is pleading' guilty. A guilty plea cannot stand as voluntarily and knowingly entered unless the defendant understands the nature of the crime charged. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; People v. Brown, Colo., 529 P.2d 1338; People v. Musser, Colo., 529 P.2d 626; and See People v. Riney, 176 Colo. 221, 489 P.2d 1304, where the Supreme Court reversed because of the failure of the trial court 'to explain to the defendant the nature and elements of the charge' even though Crim.P. 11 as it existed in 1970 did not refer to the elements of the offense.
The prosecution argues that considering the entire record and the testimony of defendant's attorney at the 35(b) hearing, there is sufficient proof to show that defendant did understand the nature and elements of grand theft and burglary.
At the hearing on defendant's motion to vacate his judgment and sentence, the attorney who represented the defendant at the providency hearing testified that while he did not advise defendant of the elements of the crimes of grand theft and burglary, he discussed at great length with the defendant the evidence the prosecution would present, and that he advised the defendant that 'in (his) legal opinion, (the testimony would) be more than sufficient to cause a jury to convict.' And it was his opinion that defendant understood the two charges to which he pleaded guilty. He further testified however that he did not discuss the two offenses element by element because, as he stated, 'I'm not sure it is possible to explain to a lay person a crime element by element. It is very academic in terms of what he understood, but as to what burglary or theft is in terms of sufficiency of evidence--yes. I think he did, indeed, understand that.' He went on to say that, 'It was my opinion he did, indeed, understand not only the two charges but also the evidence which the District Attorney would have presented in all the cases. They were discussed with him at some considerable length.'
The informations explaining the charges were not read to the defendant at the time of the providency hearing and the record before us gives no indication that they were ever read to defendant. The trial judge stated that he gave no explanation to the defendant of the elements of the crimes of theft and burglary, nor the nature of the charge, and explained this by saying: 'I did not especially set each and every element of burglary out to the defendant, but when he is charged with seven burglaries--six or seven burglaries--to explain to him what burglary is is like explaining to Dillinger what a bank robbery is.' This language, though more colorful, is similar in concept to language used in People v. Murdock, Colo., 532 P.2d 43. There the Supreme Court reversed the denial of a 35(b) motion even though the trial court had found that, at the time of the guilty plea, the defendant had an "overall understanding' of the nature of the crime because of his presence at prior court procedures in (the same) matter . . ..'
Although there are no ritualistic formulas by which a judge should ascertain defendant's understanding, People v. Keenan, Colo., 524 P.2d 604, compliance with Crim.P. 11 is not satisfied by the subjective determination of the trial court that the defendant understands the nature and elements of the crime unless sufficient facts appear on the record to show that this determination was reasonably founded. See People v. Sandoval, Colo., 535 P.2d 1120.
The attorney's testimony does not reveal, other than the generalities about sufficient evidence, what specifically defendant was told about the nature and elements of the crimes of theft and burglarly or the evidentiary facts which the District Attorney was prepared to present, and the record is devoid of any other evidence on these issues. We cannot determine, therefore, whether what was discussed with the defendant was sufficient for his understanding of the elements of the crimes.
The fact the attorney advised defendant that the testimony would be sufficient to cause a jury to convict him is no more than advising him that he is guilty. This, together with his failure to advise the defendant of the elements of the offense or to 'undertake to educate the defendant as to the legal definitions of the crime(s) of theft or burglary,' has been held insufficient to satisfy the requirements of Crim.P. 11. People v. Sanders, Colo., 524 P.2d 299.
Also, we cannot accept the premise of defendant's then-counsel that it may not be possible to explain to a lay person a crime element by element. To do so would be to concede that our criminal statutes and the jury instructions defining crimes are merely an exercise in futility. By a line of clear and consistent authority, the critical elements of the crimes charges must not only be explained in terms which are understandable to the defendant but also the meaning of a guilty plea must be explained in relation to each of the elements. People v. Brown, supra; People v. Lottie, 183 Colo. 308, 516 P.2d 430; People v. Cumby, 178 Colo. 31, 495 P.2d 223; People v. Colosacco, 177 Colo. 219, 439 P.2d 650. The nature and elements of the crime not only can be explained in terms readily understandable to the defendant, but they must be so explained.
Furthermore, the trial court, in denying the 35(b) motion, stated that when the defendant entered his plea of guilty 'he did it reluctantly.' With this knowledge, and the further knowledge that the plea was the result of plea bargaining, 'the court should have taken (additional) precautions to assure itself beyond question that this defendant was fully informed regarding the elements of the crime(s) to which he was pleading guilty; (and) that there was a factual basis for the plea . . ..' See People v. Murdock, supra; and People v. Brown, supra; Westendorf v. People, 171 Colo. 123, 464 P.2d 866; Cf. People v. Alvarez, 181 Colo. 213, 508 P.2d 1267.
Because of this defect in the record and under the holdings of People v. Mason, 176 Colo. 544, 491 P.2d 1383; and People v. Colosacco, supra, a reversal, rather than a remand for a determination of the specific evidence discussed by counsel with the defendant, is required. Since plea bargaining is involved here, the charges dismissed as a result of the plea bargaining will be reinstated. People v. Keenan, supra; People v. White, 182 Colo. 417, 514 P.2d 69; People v. Colosacco, supra.
The judgment is reversed and the cause remanded for further proceedings with directions that the judgment of conviction and sentence be vacated, that all charges be reinstated, and that the defendant be permitted to withdraw his pleas of guilty and plead anew to all charges including those dismissed as a result of the plea bargaining.
COYTE and ENOCH, JJ., concur.