Opinion
No. 22425.
Decided March 18, 1968.
Defendant was convicted of the crime of kidnapping. From denial of his petition for post-conviction relief, defendant brought error.
Affirmed.
1. KIDNAPPING — Record — Hearing — Post-Conviction Relief — Plea — Voluntary — Guilt — Determination — Property. Record conclusively establishes that on evidentiary hearing on petition for relief under Colo. R. Crim P. 35(b) trial court adequately determined that plea of guilty to kidnapping charge by defendant was voluntarily made, and that under the facts and circumstances surrounding the alleged offense, defendant was guilty of the crime of kidnapping.
Error to the District Court of Arapahoe County, Honorable Donald P. Smith, Jr., Judge.
Richard D. Greene, Eugene Pepper, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, James F. Pamp, Assistant, for defendant in error.
Plaintiff in error, hereinafter referred to as Timothy, and two older brothers Harry and Tommy were accused in a three count information of the crimes of conspiracy and kidnapping. Timothy (as well as the other two defendants) entered a plea of guilty to the crime of kidnapping as alleged in the first count of the information, and the other counts were thereupon dismissed. Timothy was seventeen years of age.
Prior to reception of the guilty plea counsel was appointed to represent the three defendants. On Timothy's first appearance for arraignment his attorney asked for one week's continuance, which was granted. The guilty plea was entered by Timothy in the presence of his appointed attorney and the record discloses that every precaution was taken by the trial court, as well as by the district attorney, to make certain that Timothy fully understood the nature of the offense charged against him, and all of his rights, and the consequences of his plea of guilty.
On February 16, 1965, the court sentenced Timothy to serve a term in the penitentiary of not less than ten nor more than twenty years. Thereafter, a petition was filed in the trial court by Timothy which was captioned "Writ of Habeas Corpus." It was considered by the trial court as a Motion for Relief under Colo. R. Crim. P. 35(b). A date was set for an evidentiary hearing on the petition. The record discloses that at this hearing, at which Timothy was represented by counsel, no evidence was offered by him. The only matter presented to the court on the 35(b) hearing was the report theretofore filed by the probation officers in connection with the application for probation filed by Timothy prior to imposition of sentence.
We have examined the full record before this court and find nothing therein to sustain the two basic arguments of counsel for Timothy, viz: (1) That the trial court did not "adequately" determine that the plea of guilty was made voluntarily; and (2) that under the facts and circumstances surrounding the alleged crime Timothy could not be guilty of the crime of kidnapping. Exactly the opposite is conclusively established without dispute of any kind.
The judgment is affirmed.
MR. JUSTICE McWILLIAMS not participating.