Opinion
No. 25633
Decided November 25, 1974.
Defendant, after extensive plea bargaining and after four days into a trial before a jury, asked court to terminate trial and entered a plea of guilty to conspiracy to commit burglary and was sentenced to the state penitentiary. Defendant seeks review of his sentence and appeals ruling of court denying motion to vacate his guilty plea.
Affirmed
1. CRIMINAL LAW — Punishment — Co-Defendants — Discretionary — Statutory Limits. The matter of punishment for each of co-defendants is discretionary with the trial court within statutory limits based on degree of involvement, previous record and rehabilitative needs of each.
2. CONSPIRACY — Burglary — Sentence — Six to Seven Years — Not Excessive. Where defendant, who had one previous state felony conviction, two convictions on federal charges, and at least eight convictions for which he was fined or imprisoned in various jails, held, under these circumstances, sentence of six to seven years for conspiracy to commit burglary imposed on defendant was not excessive; it does not shock the conscience of the court.
3. CRIMINAL LAW — Explanation — Crime — Aware — Information. No more full explanation of the substantive crime can be given a defendant — in making him aware of the nature of the charge — than the information itself for this particular offense which the court read to him fully.
4. CRIMINAL PROCEDURE — Plea of Guilty — Conspiracy to Commit Burglary — Aware — Nature of Charge. Where defendant sought to set aside his guilty plea to the charge of conspiracy to commit burglary contending he was not made aware of the nature of the charge by the court, held, there is no merit to defendant's contention; the information was read to him fully and he answered "yes" to question whether he understood charge to which he pleaded guilty; under these circumstances, he was made fully aware of the nature of the charge.
5. Plea of Guilty — Induced — Promise of Leniency Not Supported by Evidence. Defendant's claim that he was induced to enter his plea of guilty to charge of conspiracy to commit burglary by promises of leniency is not supported by evidence.
6. ATTORNEY AND CLIENT — Advice — Low Sentence — Not Binding on Court. Although trial counsel testified that he did tell defendant there was the possibility of a "low sentence, perhaps three to four or four to six years," nevertheless, such advice by defendant's counsel is not binding on the court.
7. CRIMINAL LAW — Delay — Guilty Plea — Charge — Passing Sentence — Not Prejudicial — Credit. Where there was a delay of 145 days between entry of guilty plea to charge of conspiracy to commit burglary and passing of sentence, held, such delay was not prejudicial where court pointedly credited defendant with 133 days.
Appeal from the District Court of the City and County of Denver, Honorable Donald N. Pacheco, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Natalie S. Ellwood, for defendant-appellant.
Defendant Pauldino, after extensive plea bargaining and after four days into a trial before a jury, asked the court to terminate the trial and entered a plea of guilty to conspiracy to commit burglary. He was sentenced to from 6 to 7 years in the state penitentiary.
Defendant seeks review of his sentence and appeals a ruling of the court denying a motion to vacate his guilty plea. We affirm.
I.
As to the sentence, defendant requests we remand the cause to the trial court for reconsideration or reduce the sentence as being excessive. He points to lower minimum sentences given co-defendants and also to the fact that the court assigned no reason for imposition of the sentence.
[1,2] We find no basis for ordering or remanding for different sentence. There is no Colorado authority cited and none of which we are aware that requires the court to assign his reasons for imposing a sentence. The matter of punishment for each of co-defendants is discretionary with the trial court within the statutory limits based on degree of involvement, previous record and rehabilitative needs of each. We have no record before us concerning the other defendants. The presentence report on this defendant shows one previous state felony conviction and two convictions on federal charges, for one of which he was in Federal penitentiary at Leavenworth at the time of the sentence. In addition there was a record of at least eight convictions for which he was fined or imprisoned in various jails. The sentence which could have been as high as 9 to 10 years in the state penitentiary does not shock the conscience of the court. People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974).
II.
[3,4] As grounds for setting aside his guilty plea, defendant claims he was not made aware of the nature of the charge by the court. We disagree.
It is true the trial court did not specifically explain in detail the elements of the crime of burglary on which defendant admitted the conspiracy count. Nevertheless, the information was read to him in which the court charges he and other defendants did "wilfully break and enter, and without force enter, the building * * * with intent then and there to commit the crime of theft." No more full explanation of the substantive crime could be given than the charge itself and defendant answered "yes" to the court's question whether he understood the charge to which he was pleading. People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974).
III.
[5,6] Defendant's claim to have been induced to enter the plea by promises of leniency was not supported by evidence at the hearing. When he tendered the plea, he told the court he was aware that he could receive up to 10 years in prison and that no promises had been made to him. Defendant's trial counsel testified that he did tell defendant that there was the possibility of a "low sentence, perhaps three to four or four to six years." Such advice by defendant's counsel is not binding on the court. People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973); People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).
IV.
[7] One other claim of undue delay of almost five months between the entry of the plea and passing of sentence is of no merit because the court pointedly credited defendant with 133 days — covering all but 12 days of the 145 day delay.
Judgment affirmed.
MR. JUSTICE ERICKSON does not participate.