Opinion
Aug. 26, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1140
Edward L. Arcuri, III, Bernard R. Baker, Deputy Dist. Attys., Colorado Springs, for plaintiff-appellee.
William H. Kirkman, Jr., Colorado Springs, for defendant-appellant.
VanCISE, Judge.
As a result of a plea bargain on a tencount information, defendant Warren, on October 13, 1972, pled guilty to one count of second degree burglary. On the morning of November 30, 1972, he was sentenced on that count to a term of 18 to 25 years in the state penitentiary. In the afternoon of the same day, a plea and sentence bargain was reached in a second case involving a four-count information, as a result of which Warren pled guilty to one count of first degree assault, and a concurrent sentence of the same 18 to 25 years was imposed thereon. Seventeen months later, Warren moved for post-conviction review under Crim.P. 35(b), and asked the court to vacate both sentences and to resentence him, Nunc pro tunc November 30, 1972, so that he might appeal both sentences under C.A.R. 4(c)(1). After an evidentiary hearing, his motion was denied, and he appeals that ruling. We affirm.
As of the date of sentencing, the statute in effect, 1971 Perm.Supp., C.R.S.1963, 40--1--509, provided in pertinent part:
Now s 18--1--409, C.R.S.1973.
'(1) When sentence is imposed . . . the person convicted shall have the right to one appellate review of the propriety of the sentence . . .. The procedures to be employed in such review shall be as provided by supreme court rule.
'(2) No appellate court shall review any sentence . . . unless within thirty days after sentence is imposed a written notice is filed in the trial court to the effect that review of the sentence will be sought . . ..' (emphasis supplied)
C.A.R. 4(c)(2)(II), the review procedure provided by Supreme Court rule pursuant to the statute, was not in existence at the time Warren was sentenced. It was adopted November 29, 1973, and was not effective until January 1, 1974. That rule requires that the trial court, at the time of sentencing, advise the defendant of his right to appeal the sentence, but prior to 1974 there was no rule or statute with any such requirement. Crim.P. 32(c) provided at that time, and still provides, that:
'Except in cases where judgment of conviction has been entered following a plea of quilty . . . the court shall after passing sentence inform the defendant of his right to seek review.' (emphasis supplied)
Warren alleged in his motion that he was not notified of his right to appeal the sentences, that at the time of sentencing he was advised by both the court and his lawyer that, by entering a plea of guilty, he waived this right, and that, had he been aware of the provisions of the statute, he would have filed a notice of appeal within the 30 day period and would have appealed the sentences.
At the hearing, it was assumed by the court and the parties that the court did not at the time of sentencing specifically advise Warren of his right to appeal the sentences. On conflicting evidence, the court found: (1) That it did not tell Warren he could not appeal; (2) that Warren's then retained lawyer was aware of the rights to appellate review of the sentences on 30 day notice and of the 120 day provision for reduction of sentence by the trial court; (3) that Warren was aware of both rights shortly after being sentenced and incarcerated; (4) that Warren and his lawyer discussed the advisability of an appeal; and (5) that Warren made the ultimate decision not to appeal. These findings, being based on sufficient evidence, must be accepted as the facts for purposes of this review. People v. Mortinez, Colo., 527 P.2d 534.
The evidence was that he knew about his right to appeal the sentence within not more than a week after imposition of sentence.
On these facts, we find no error in the denial of the motion, See Haines v. People, 169 Colo. 136, 454 P.2d 595; United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (2d Cir.), and adopt the conclusion of the trial court:
'(T)he fact that he did not take (review of the propriety of the sentences) was a decision between he (sic) and his attorney, with which this Court does not feel it had anything to do. Sometimes it's called strategy or trial strategy and the Court believes, and would conclude, that as of that time it was under no mandatory duty to verbally state to the defendant following sentencing that he had the right to appeal.'
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.