Opinion
Oct. 23, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David D. Belina, Colorado Springs, for defendant-appellant.
VanCISE, Judge.
Defendant, Willie Lee Myles, appeals the denial of his oral motion, made immediately prior to sentencing, to withdraw his previously entered plea of guilty and, pursuant to C.A.R. 4(c)(1), appeals the propriety of the 17 to 24 year sentence imposed on him for aggravated robbery. We affirm the judgment and sentence.
On July 9, 1974, Myles and Hoover Reynolds were indicted for the June 29, 1974 aggravated robbery and felony murder of James Haberkorn. They were tried separately. On the second day of Myles' trial on these charges, the court granted his request and permitted him to plead guilty to aggravated robbery in exchange for a dismissal of the first degree murder count. The matter was then continued for presentence investigation, sentence, or other disposition, and these matters were heard on January 24, 1975. In the interim, the codefendant Reynolds went to trial on both counts and, on January 17, 1975, was acquitted. At the January 24 hearing, Myles asked the court to permit him to withdraw his guilty plea. The court determined that, at the time of entry of his plea, Myles 'knew exactly' what he was doing, understood his rights, the nature of the charge to which he had pled, and the possible consequences, and it therefore denied the motion to withdraw the plea. Myles was then sentenced to the penitentiary for a term of not less than 17 nor more than 24 years.
I.
Myles claims error in the trial court's refusal to permit him to withdraw his plea of guilty. He asserts that his plea was not made voluntarily nor with an understanding of the elements of the crime. We do not agree.
Prior to accepting the guilty plea, the court conducted an extensive providency hearing. At that hearing, Myles stated that he was voluntarily pleading guilty, that no promises had been made to him concerning disposition other than that, if he testified against the codefendant Reynolds, the district attorney would recommend incarceration at the state reformatory rather than in the penitentiary. He acknowledged that the court alone had the final authority to determine the sentence and the possible place of confinement. He stated that he understood the charge of aggravated robbery, and that by pleading guilty he was waiving his rights to present his case to a jury and to confront any witnesses that might be brought against him. The court read the charge and Myles stated that he understood what it said. Nevertheless, the court then went further and advised him what the charge meant in the court's own words.
In response to the court's question as to what made him think he was guilty of robbery, Myles admitted it was his gun that was used in the robbery and killing, and the following colloquy took place between Myles and the court:
'Okay, Your Honor, I'll put it this way: I knew Reynolds was going to take the money; I knew if he had to use force that he would use force, but I didn't expect him to.
'You understood he would use whatever force was necessary?
'Right.
'Did you know he had the gun at the time he went in the room?
'Yes, Your Honor.'
The court had already heard some testimony before the entry of the guilty plea. The court determined that there was a factual basis for the plea of guilty, and that Myles was aware of his rights and was making a knowing and intelligent waiver thereof.
At the January 24 hearing, in support of his claim that the plea was not voluntary and that he did not understand what he was being charged with, defendant made several statements that were inconsistent with his previous acknowledgement that he know Reynolds had a gun when he entered the room to commit the robbery. And, in that hearing, the court asked Myles' lawyer, who represented him at both hearings and on this appeal, 'So far as you are concerned, what do you understand, was it (the guilty plea) voluntary?' The attorney responded, 'As far as I understand, yes, Your Honor.' The court then made the determinations previously stated and denied the motion for withdrawal.
From the record, it is clear that all of the requirements of Crim.P. 11(b) were complied with and that the trial judge clearly informed Myles specifically as to each. In addition, the defendant had the benefit of competent defense counsel in arriving at his decision. The court's findings as to voluntariness of the plea and the defendant's understanding of the nature of the charge are supported by the record. There was no error in denying the motion to withdraw the plea. See People v. Lambert, Colo., 539 P.2d 1238 (announced August 25, 1975); People v. Hubbard, Colo., 519 P.2d 945; People v. Canino, 181 Colo. 207, 508 P.2d 1273.
II.
Defendant next contends that the trial court abused its discretion in sentencing him to a minimum of 17 and a maximum of 24 years in the penitentiary. He maintains that, considering the factors for review set forth in s 18--1--409(1), C.R.S.1973 ('the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based') and in C.A.R. 4(c)(1), the sentence was excessive.
At the time of sentencing, the defendant was 23 years old, married, and was serving his second enlistment in the U.S. Army. He served a year in Vietnam. His army record was undistinguished, his superiors describing him as a very intelligent individual, but unable or unwilling to assume responsibility. There were suspicions unsupported by evidence concerning other offenses, but the instant case was his only arrest or conviction. The probation officer who prepared the presentence report recommended against probation and in favor of a penitentiary sentence.
During the course of a robbery, carefully planned and executed by the defendant and others, the victim was robbed of his money and was shot and killed with Myles' gun. The felony murder charge, for which Myles could have been sentenced to life imprisonment in the event of conviction, was dropped in exchange for his guilty plea to the aggravated robbery count, which carried a lesser penalty of confinement for not less than five nor more than forty years. Section 18--1--105, C.R.S.1973.
The record shows that the court considered all of the factors specified in s 18--1--409(1), C.R.S.1973. In view of the seriousness of the offense, the brutality of its execution and the death of the victim, we cannot say that the trial court abused its discretion. See People v. Euresti, Colo., 529 P.2d 1319; People v. Weihs, Colo., 529 P.2d 317; People v. Carter, Colo., 527 P.2d 875. Accordingly, the sentence entered will not be disturbed.
Judgment and sentence affirmed.
COYTE and STERNBERG, JJ., concur.