Opinion
No. 77-1095
Decided March 1, 1979.
Defendant appealed the denial of his Crim. P. 35(b) motion to vacate his 1958 conviction of assault.
Reversed
1. CRIMINAL LAW — Post-Conviction Relief — 1958 Conviction — Disadvantageous — Parole Proceeding — 1975 Texas Conviction — Sufficient — Denial — Motion to Vacate Conviction — Error. Where, in attempt to challenge his plea of guilty to assault entered in 1958 without benefit of counsel, defendant established that his 1958 conviction "is or may be disadvantageous" to him in his seeking parole under 1975 conviction in Texas, he made a sufficient showing of "present need" for post-conviction relief from the 1958 conviction, and thus, trial court erred in denying defendant's motion to vacate the 1958 conviction.
Appeal from the District Court of the County of El Paso, Honorable William E. Rhodes, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Lee Belstock, Deputy State Public Defender, Norman R. Mueller, Deputy State Public Defender, for defendant-appellant.
Defendant appeals the denial of his Crim. P. 35(b) motion to vacate his 1958 conviction of assault on a child under sixteen, a violation of C.R.S. 1963, 40-2-32. We reverse and remand the cause with directions to grant the requested relief.
Defendant's 1958 conviction resulted from a guilty plea that was entered without the benefit of counsel. The record does not disclose and there was no showing by the People that the defendant had waived his right to counsel. And the People tacitly recognize the constitutional infirmity of the defendant's 1958 conviction. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); People v. Harrington 179 Colo. 312, 500 P.2d 360 (1972); Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967). However, relying on People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974), and People v. Hampton, 187 Colo. 131, 528 P.2d 1311 (1974), the People argue that the trial court acted properly in denying the defendant's motion because the defendant had fully served the sentence on the challenged conviction and had failed to establish a "present need" to have the conviction vacated. This contention lacks merit.
We view People v. Bucci, supra, as dispositive of this appeal. There the Court expressly adopted ABA, Standards Relating to Post-Conviction Remedies § 2.4(c). That section provides as follows:
"A state has a legitimate interest in avoiding litigation of stale claims. Where an applicant has completed service of a challenged sentence and, belatedly, seeks post-conviction relief, he can be charged with the responsibility of showing present need for such relief. A sufficient showing of present need is made, for example, where:
"(ii) an applicant is or may be disadvantaged in seeking parole under a later sentence. . . ." (emphasis supplied)
[1] Here, it was undisputed that on December 5, 1975, the defendant commenced serving an eight-year sentence for kidnapping in Texas and on November 8, 1977, was sentenced to a ten-year term in Nevada after pleading guilty to statutory rape. In determining whether an application for parole should be granted or denied, Texas authorities "shall secure and consider all pertinent information regarding each prisoner, . . . including . . . his . . . previous criminal record." See Tex. Crim. Proc. Code Ann. art. 42.12 C., sec. 15(e) (Vernon). Thus, the defendant made a sufficient showing of "present need" by establishing that by his 1958 conviction he "is or may be disadvantaged in seeking parole" under his Texas sentence. See United States ex rel. Urbano v. Yeager, 323 F. Supp. 774 (D.N.J. 1971); Smith v. State, 94 Ida. 469, 491 P.2d 733 (1971).
Further, we reject the trial court's suggestion that the hearsay nature of the defendant's evidence mandated the denial of the defendant's Crim. P. 35(b) motion. The relevant facts were not disputed, and therefore defendant's inability to appear at the hearing on his motion should not be permitted to defeat his right to relief.
The order appealed from is reversed and the cause remanded to the trial court with directions to grant the defendant's motion to vacate his 1958 conviction.
JUDGE VAN CISE and JUDGE STERNBERG concur.