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People v. Hawkins

Court of Appeals of Colorado, Second Division
Sep 9, 1975
543 P.2d 99 (Colo. App. 1975)

Opinion

         Rehearing Denied Oct. 9, 1975.

         J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, William J. Donlon, Jr., Asst. Attys. Gen., Denver, for plaintiff-appellee.


         Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.

         KELLY, Judge.

         Defendant appeals from the judgment of the trial court denying his Crim.P. 35(b) motion to vacate his guilty pleas and set aside judgments of conviction entered thereon. Here, as in the trial court, the defendant relies solely on the contention that the record fails to show that he was advised of or understood the nature of the charges and the elements of the offenses to which he was pleading builty. We affirm.

         In October 1969, the defendant was charged by information with armed robbery and conspiracy, under the provisions of 1967 Perm.Supp., C.R.S.1963, 40--5--1 and C.R.S1963, 40--7--35. In a separate information, filed contemporaneously, the defendant was charged with assault with intent to commit robbery, assault with intent to commit murder, and two counts of conspiracy, in violation of C.R.S.1963, 40--2--34 and 40--7--35. Although these charges were based on separate transactions, both the providency hearing and the postconviction proceedings were consolidated in the trial court.

         In December, the defendant, against the advice of his counsel, insisted on withdrawing his pleas of not guilty by reason of insanity and not guilty, and he tendered pleas of guilty of armed robbery and assault with intent to commit robbery. The record reveals that plea bargaining was not involved in defendant's decision to follow this course of action.

         Before accepting these pleas of guilty, the trial court conducted an extensive providency hearing. At the outset, defendant's counsel waived the reading of the informations. Consequently, the trial court immediately addressed the defendant, inquiring whether he could read and write, whether he had read the informations, and whether he understood the charges. The defendant responded affirmatively to each question.

         There followed a full advisement of defendant's other rights, as required by Crim.P. 11. Additionally, the defendant represented to the court, in response to questioning, that he did not wish the charges read to him, that he was satisfied with his attorney's representation, that he understood he was tendering these pleas against his counsel's advice, that he understood what was taking place, and that he wished to proceed. The pleas were accepted, and in due course, sentences were imposed.

         Over four years later, defendant's motions were filed seeking to vacate his pleas. Defendant's request for change of judge was granted and a full evidentiary hearing was held before a different trial judge. At this hearing, defendant's trial counsel testified that he had not explained to the defendant the elements of the offenses, and the defendant testified that he did not understand the offenses charged.

         The court denied the motions. After reviewing and evaluating the entire record, it ruled, in effect, that it did not believe the defendant's testimony at the 35(b) hearing, and concluded 'that the defendant unquestionably understood to what he was pleading.' We agree with this conclusion.

          The record here shows facts which 'manifestly indicate' the defendant's understanding of the nature of the offenses with which he was charged. See People v. Colosacco, 177 Colo. 219, 493 P.2d 650. Ritual is not of paramount importance.

'What the constitution requires is that the defendant be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt. A formalistic recitation by the trial judge at a providency hearing is not a constitutional requisite.' People v. Canino, 181 Colo. 207, 508 P.2d 1273.

         Accord, People v. Musser, Colo., 529 P.2d 626; People v. Marsh, 183 Colo. 258, 516 P.2d 431; People v. Duran, 183 Colo. 180, 515 P.2d 1117. A plea of guilty should not be set aside if the record shows that there is a factual basis for the plea, that the defendant was aware of the elements of the offense, and that he entered the plea voluntarily.          See People v. Hutton, 183 Colo. 388, 517 P.2d 392.

          Here, as in People v. Pauldino, Colo., 528 P.2d 384, the trial court did not specifically explain in detail the elements of the offenses with which the defendant was charged. Nevertheless, the informations were drafted substantially in the language of the statutes and were understandable to a person of ordinary intelligence. See People v. Lottie, 183 Colo. 308, 516 P.2d 430. Moreover, the defendant answered 'yes' to each of the court's repeated inquiries concerning his understanding of the proceedings and of the charges, which he said he had read and which he declined to have read to him. See People v. Pauldino, supra; People v. Lottie, supra.

         There is abundant evidence in the record of the factual basis for the defendant's pleas. Prior to the providency hearing, a psychiatrist's report of defendant's sanity was provided to the court. This report alone, containing defendant's recitation of his commission of the offenses, is sufficient to show a factual basis for each of the pleas. In addition, however, a presentence investigation report of each offense was prepared and submitted to the court, and these reports manifest not only the defendant's commission of the offenses, but also his awareness of their nature. Finally, the defendant himself, in exercising his right of allocution before sentencing, stated sufficient facts to support his plea of guilty of assault with intent to rob. Thus, the record, sufficiently demonstrates that the defendant understood the nature of the charges against him. See People v. Lambert, Colo., 539 P.2d 1238; People v. Hubbard, Colo., 519 P.2d 945; People v. Canino, supra.

         Judgment affirmed.

         SILVERSTEIN, C.J., and RULAND, J., concur.


Summaries of

People v. Hawkins

Court of Appeals of Colorado, Second Division
Sep 9, 1975
543 P.2d 99 (Colo. App. 1975)
Case details for

People v. Hawkins

Case Details

Full title:People v. Hawkins

Court:Court of Appeals of Colorado, Second Division

Date published: Sep 9, 1975

Citations

543 P.2d 99 (Colo. App. 1975)