Opinion
No. 23807
Decided November 2, 1970.
Defendant filed a motion for post conviction relief contending his guilty plea was coerced. Trial court, after a hearing, ordered the guilty plea vacated and People brought error.
Ruling Affirmed.
1. CRIMINAL PROCEDURE — Post Conviction Relief — Judge — Vacation of Guilty Plea — Trial — Review — Upset — Extreme Circumstances. When a trial judge holds a hearing on a post conviction motion and determines after hearing the testimony that the interests of justice require the vacation of a guilty plea and that a trial be held on the question of such guilt or innocence, such determination will not be upset on review except in extreme circumstances.
2. Motion — Post Conviction Relief — Guilty Plea — Coercion — Vacation of Sentence — Review — Extreme Circumstances — Negative — Affirmance. Where defendant, after he had begun serving his sentence, filed a motion pursuant to Colo. R. Crim. P. 35(b), contending that his guilty plea had been coerced, and trial court after a hearing vacated the sentence and ordered the guilty plea vacated, held, since reviewing court finds no extreme circumstances to warrant upsetting the trial court's determination vacating the sentence and ordering the guilty plea vacated, trial court's ruling is therefore affirmed.
Error to the District Court of the City and County of Denver, Honorable George M. McNamara, Judge.
Duke W. Dunbar, Attorney General, James D. McKevitt, District Attorney, Gregory A. Mueller, Assistant, James W. Creamer, Jr., Chief Deputy, Patricia W. Brittain, Deputy, for plaintiff in error.
Douglas G. McKinnon, for defendant in error.
Gantner was charged with a crime in an information filed May 22, 1967. He originally plead not guilty, but on October 18, 1967, he tendered a plea of nolo contendere. The trial court rejected this plea whereupon Gantner plead guilty. His application for probation was denied, and Gantner began serving his sentence on December 1, 1967. On April 17, 1968, he filed a motion pursuant to Colo. R. Crim. P. 35(b), contending that his guilty plea was coerced. After a hearing on May 10, 1968, the trial court vacated the sentence, and ordered the plea of guilty vacated. We affirm.
[1,2] We do not consider a further statement of the facts or an explanation of the issues argued by counsel necessary to dispose of this case. We are of the opinion that when a trial judge holds a hearing on a 35(b) motion, and determines after hearing the testimony that the interests of justice require the vacation of a guilty plea and that a trial be held on the question of such guilt or innocence, such determination will not be upset by this Court except in extreme circumstances. We do not find those circumstances present in this case.
The ruling is affirmed.
MR. JUSTICE DAY, MR. JUSTICE GROVES, and MR. JUSTICE LEE concur.