No. 87SC262Supreme Court of Colorado.
Decided April 24, 1989. Rehearing Denied June 5, 1989.
Certiorari to the Colorado Court of Appeals.
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David F. Vela, State Public Defender, Judy Fried, Deputy State Public Defender, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Peter J. Stapp, Assistant Attorney General, Robert M. Russel, Assistant Attorney General, for Respondent.
EN BANC
JUSTICE LOHR delivered the Opinion of the Court.
[1] We granted certiorari to review an unpublished decision of the Colorado Court of Appeals affirming the conviction of defendant-petitioner John Wesley Lacy, Jr., on three habitual criminal counts. The court of appeals upheld the trial court’s denial of the defendant’s motion to dismiss the habitual criminal counts at issue in this petition. The defendant asserts on certiorari that his guilty pleas to the charges underlying the habitual criminal counts were constitutionallyPage 3
infirm. We conclude that two of these convictions were based on constitutionally infirm pleas of guilty and could not be used as predicates for habitual criminality charges. Since at least two habitual criminal counts must be proved before a defendant can be adjudged a habitual criminal and therefore subject to mandatory increased sentencing, see § 16-13-101, 8A C.R.S. (1986), we need not address the validity of the defendant’s plea underlying the single remaining habitual criminal count. We therefore reverse the judgment and remand the case for resentencing.
I.
[2] The defendant was initially charged in a two-count information alleging attempted second degree kidnapping,[1] which is a class five felony, and assault in the third degree,[2] which is a class one misdemeanor. These charges arose out of an attempted abduction that occurred in the early morning on February 9, 1985, outside of the Elks Club in Arvada, Colorado. The victim testified at trial that after leaving her job at the Elks Club and waiting in the parking lot for her car to warm up, Lacy approached her and pushed her into the car. During the subsequent struggle Lacy covered the victim’s mouth to keep her from screaming and punched her in the face. While Lacy was attempting to get the car into gear, the victim managed to escape from the vehicle and run away.
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habitual criminal. In an unpublished opinion, the court of appeals rejected his challenges to the guilty pleas underlying the habitual criminal counts and therefore affirmed the judgment of conviction. The court held that the record supported a finding that each of Lacy’s guilty pleas was entered knowingly, intelligently, and voluntarily.
[6] Lacy then sought certiorari review in this court. He specifically assigns as error the trial court’s refusal to dismiss the habitual criminal counts relating to the felony convictions obtained in 1973, 1976, and 1980. He asserts that these convictions were based on constitutionally defective guilty pleas and therefore were obtained in violation of due process of law. U.S. Const. amend. XIV; Colo. Const. art. II, sec. 25. As to the convictions obtained in 1976 and 1980, we agree. We find it unnecessary to address the validity of the conviction obtained in 1973. II. A.
[7] A prior conviction obtained in a constitutionally invalid manner cannot be used against an accused in a subsequent criminal proceeding to support guilt or to increase punishment. E.g., Loper v. Beto, 405 U.S. 473, 481
(1972); Burgett v. Texas, 389 U.S. 109 (1967); Watkins v. People, 655 P.2d 834, 837 (Colo. 1982); People v. Quintana, 634 P.2d 413, 416
(Colo. 1981). We therefore must determine whether Lacy’s prior convictions comply with constitutional standards. See People v. Meyers, 617 P.2d 808, 814-15 (Colo. 1980).[4]
(Colo. 1985); Harshfield v. People, 697 P.2d 391 (Colo. 1985); People v. Leonard, 673 P.2d 37 (Colo. 1983); U.S. Const. amend. XIV; Colo. Const. art. II, sec. 25. A guilty plea may be involuntary in the constitutional sense for one of two reasons. First, a plea may be involuntary because the defendant does not understand the nature of the constitutional protections he is waiving. Henderson, 426 U.S. at 645 n. 13; Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). Alternatively, a plea may be involuntary because the defendant “has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.”Henderson, 426 U.S. at 645 n. 13. In the latter case, a plea is not voluntary unless the defendant received “`real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'” Henderson, 426 U.S. at 645 (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)). [9] To establish that the constitutional requirement of voluntariness has been satisfied, the record as a whole must affirmatively demonstrate that the defendant understood the constitutional rights he was waiving and the critical elements of the crime to which the plea was tendered. People v. Wade, 708 P.2d 1366, 1368-69 (Colo. 1985); Harshfield, 697 P.2d at 393 People v. Keenan, 185 Colo. 317, 319, 524 P.2d 604, 605 (1974). A reviewing court cannot presume from the mere fact that a
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guilty plea was entered that the defendant waived his constitutional rights and understood the critical elements of the crime with which he was charged. Boykin, 395 U.S. at 242-43; Wade, 708 P.2d at 1368-69.
1.
[10] As to the requirement that the defendant understand the nature of the constitutional protections he is waiving, we have previously held that the trial court need not follow a formalistic litany when accepting a guilty plea. E.g., Wade, 708 P.2d at 1368. Rather, the record as a whole must simply show that the defendant entered his guilty plea voluntarily and understandingly. Wade, 708 P.2d at 1368-69; Keenan, 185 Colo. at 319, 524 P.2d at 605; People v. Marsh, 183 Colo. 258, 263, 516 P.2d 431, 433 (1973). Moreover, due process does not require a specific waiver of even the three constitutional rights highlighted i Boykin v. Alabama, 395 U.S. 238.[5] Wade, 708 P.2d at 1369; Marsh, 183 Colo. at 262-63, 516 P.2d at 433; see generally J. Bond, Plea Bargaining and Guilty Pleas § 3.8(b) (1983) (a majority of courts have refused to vacate pleas simply because the record does not affirmatively show a specific waiver of the three constitutional rights referred to i Boykin). Thus, we have rejected an assertion that “when the record of providency proceedings contains no evidence of any reference to the prosecution’s burden of proof in criminal trials, any guilty plea accepted during such proceedings must be deemed constitutionally invalid.” Wade, 708 P.2d at 1370.
2.
[12] As to the requirement that the defendant understand the nature of the charges against him, the record must affirmatively demonstrate the defendant’s understanding of the critical elements of the crime to which the plea is tendered. E.g., Harshfield, 697 P.2d at 393; Leonard, 673 P.2d at 39; Watkins, 655 P.2d at 837; see also ABA Standards for Criminal Justice, Standard 14-1.4 (2d ed. 1980). In order to satisfy the requirement, the court should explain the critical elements “`in terms which are understandable to the defendant.'” Watkins, 655 P.2d at 837
(quoting People v. Cumby, 178 Colo. 31, 33, 495 P.2d 223, 224 (1972)).
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[13] Our cases have recognized that the degree of explanation that a court should provide depends on the nature and complexity of the crime and that no particular litany need be followed in accepting a tendered plea of guilty. Harshfield, 697 P.2d at 394; Leonard, 673 P.2d at 39. However, a showing that defense counsel gave some explanation to his client of the charge to which the guilty plea is tendered does not by itself sufficiently demonstrate that the defendant knew the critical elements of the crime when the plea was entered. Watkins, 655 P.2d at 837; People v. Mason, Jr., 176 Colo. 544, 545-46, 491 P.2d 1383, 1383-84 (1971).[8] [14] Where the crime to which the plea is entered is relatively simple, reading the information to the defendant is an acceptable method of advising him of the nature of the offense charged. People v. Trujillo, 731 P.2d 649, 651 (Colo. 1986); Leonard, 673 P.2d at 39; see also People v. Muniz, 667 P.2d 1377, 1382-83 (Colo. 1983). Thus, further explanation is unnecessary where the crime is “`readily understandable to a person of ordinary intelligence from a mere reading of the information without further explanation by the court.'” Leonard, 673 P.2d at 39 (quotin Muniz, 667 P.2d at 1383). Offenses that we have considered to be understandable by persons of ordinary intelligence include aggravated robbery, Wright v. People, 690 P.2d 1257 (Colo. 1984); People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974), and second degree murder, People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979). [15] Regardless of the complexity of the crime, however, the record must demonstrate that the defendant understood any mental state element of the crime to which he pled guilty. Leonard, 673 P.2d at 39. Offenses that we have considered to be of greater complexity include conspiracy to commit burglary, Leonard, 673 P.2d at 41-42; Muniz, 667 P.2d at 1383-84, breaking and entering a motor vehicle with intent to commit the crime of larceny, Harshfield, 697 P.2d at 395, conspiracy to commit escape Watkins, 655 P.2d at 838, and assault to rob, People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974). [16] Regardless of the complexity of the crime, however, the record must demonstrate that the court affirmatively informed the defendant of any mental state element. See Harshfield, 697 P.2d at 394-95; Gorniak, 197 Colo. at 291-92, 593 P.2d at 350-51; Wilson, 708 P.2d at 796-97. Moreover, an inquiry by the court into whether the defendant understands the nature of charges against him is of utmost importance in connection with charges requiring proof of specific intent. People v. Kelley, 189 Colo. 31, 536 P.2d 39 (1975).B.
[17] A defendant attacking the constitutionality of a prior conviction in habitual criminal proceedings must make a prima facie showing that the guilty plea was unconstitutionally obtained. Wade, 708 P.2d at 1368 Watkins, 655 P.2d at 837; Quintana, 634 P.2d at 416. A prima facie showing means evidence that when considered in a light most favorable to the defendant, will permit the court to conclude that the conviction failed to meet relevant constitutional standards. Watkins, 655 P.2d at 837. Once a prima facie showing is made,
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the conviction is not admissible unless the prosecution establishes by a preponderance of the evidence that the conviction was obtained in accordance with the defendant’s constitutional rights. Wade, 708 P.2d at 1368; Watkins, 655 P.2d at 837; Quintana, 634 P.2d at 416.
III. A.
[18] The facts pertinent to the resolution of the issues before us are taken from the documents and transcripts relating to the defendant’s prior convictions. We turn first to the guilty plea entered in Spokane County, Washington, on June 6, 1980, to a charge of second degree assault. The record of this conviction includes a copy of the information and a transcript of the providency hearing, at which Lacy appeared and was represented by an assistant public defender.
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critical elements: (1) knowingly assaulting a human being, (2) with intent to commit the felony of second degree rape. The record contains no showing that the court made even a general effort to explain the mental states critical to the offense of second degree assault or to describe in any way the elements of the crime of second degree rape. In our view, the defendant’s affirmative response to the court’s inquiry whether he had spoken to his attorney and understood the charge does not establish that he understood the critical elements of that charge. Nor do we regard this crime as having elements that are understandable from a bare reading of the information without further explanation. Indeed, the defendant’s own assertion at the providency hearing that he was accused of “choking” the victim strongly suggests that he was confused about the precise nature of the crime to which he pled guilty. As noted earlier, a court’s inquiry into the defendant’s understanding of the nature of the charges against him is of the greatest importance where, as here, the charges require proof of specific intent. People v. Kelley, 189 Colo. 31, 536 P.2d 39 (1975).
[28] Based on the record before us, we conclude that the defendant made a prima facie showing that he lacked an understanding of the nature and elements of the crime of second degree assault. See Watkins, 655 P.2d at 837. The prosecution produced no evidence to carry its burden to show that the conviction was constitutionally obtained. See id. We therefore conclude that the trial court erred in denying Lacy’s motion to dismiss the habitual criminal count relating to the 1980 felony conviction.B.
[29] We next consider the guilty plea entered by Lacy in Mahoning County, Ohio, on February 11, 1976, to a charge of theft. The record relating to this conviction includes a copy of the indictment, a copy of the written plea of guilty, and a transcript of the providency hearing. The indictment charges Lacy with having knowingly obtained or exerted control over a 1964 Pontiac Catalina owned by one Elbee Billup, without the consent of Elbee Billup or a person authorized to give such consent, and with the purpose to deprive Billup of the car. The written plea of guilty, signed by Lacy and his attorney, states that Lacy had been informed by his counsel and by the court of the nature of the charge against him.[10] The transcript of the providency hearing, at which Lacy was present, reveals that the prosecuting attorney read the charge aloud. The victim, Elbee Billup, appeared at the hearing and stated: “As long as [Lacy] agreed to pay the damage to my car, naturally, I don’t want to press charges against him, because I have let him have the car. He used the car without my consent before, but not this particular time. So I won’t press charges against him, if it please the Court.” The trial court then engaged in the following exchange with the defendant:
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[30] “[THE COURT]: All right, Mr. Lacy, the charge here is a felony of the fourth degree; it’s the less serious of all of our felonies. However, it is still a serious charge. And the charge is, as [the prosecuting attorney] has stated, that you very, very briefly took Mr. Billup’s car without his consent on the 7th of November? [31] “[THE DEFENDANT]: Right. [32] “[THE COURT]: And, of course, if you did that, then you are guilty of this crime. By pleading guilty to it, you put yourself in a position where you are subject to a sentence of imprisonment of not less than six months, nor more than five years. Now this can be six months, one year, one and one-half years up to two years and a maximum of five years, do you understand that? [33] “[THE DEFENDANT]: Yes.” [34] The judge then explained to Lacy the constitutional rights he would waive by pleading guilty. Lacy acknowledged that he was voluntarily entering his plea and that he had signed the written plea of guilty. The court then accepted the plea. [35] Lacy contends that the court’s failure to explain to him the critical elements of the crime with which he was charged renders the plea constitutionally defective. He also asserts that the plea was without a factual basis and therefore should have been rejected. We conclude that the defendant made a prima facie showing of the constitutional invalidity of his plea and that the prosecution failed to carry its resulting burden to establish that the plea was not constitutionally infirm. See Watkins, 655 P.2d at 837. [36] Like the crime of second degree assault with intent to rape, the theft charge to which Lacy pled guilty in 1976 is a specific intent crime and its elements are not readily understandable without further explanation. The record of the February 11, 1976, providency hearing is entirely devoid of any accurate or understandable explanation of the charge. Although the prosecuting attorney read the charge in Lacy’s presence as it was described in the indictment, the only explanation directed specifically to the defendant concerning the elements of the crime was the court’s statement that the charge was that Lacy “very, very briefly took Mr. Billup’s car without his consent.” The court made no mention of the specific intent element of the crime of theft, i.e., the intent to deprive Billup of the car, but, to the contrary, implied that no specific intent was required to commit the offense. In addition, the statements made by Elbee Billup, the alleged victim of the crime, tended to refute the elements of the crime, and should have prompted the court to examine more thoroughly the defendant’s understanding of the crime to which he was pleading guilty. Although the court was not constitutionally obligated to determine that an adequate factual basis existed to support the plea,[11] it was obligated to determine that the guilty plea was made voluntarily and understandingly. Under these circumstances, it is evident that Lacy was not given an explanation and did not evince an understanding of the true nature of the charge to which he pled guilty. Accordingly, the resulting conviction cannot be used to support a habitual criminal conviction. [37] The judgment of the Colorado Court of Appeals is reversed, and the cause is remanded with directions to remand to the trial court for imposition of a sentence of four years imprisonment, the alternative sentence imposed by the trial judge in the event the habitual criminal adjudication were to be reversed on appeal. [38] JUSTICE VOLLACK concurs in part and dissents in part; and JUSTICE ROVIRA and JUSTICE MULLARKEY join in the concurrence and dissent.Page 10
however, because I disagree with the majority’s conclusion that Lacy made a prima facie showing that he lacked an understanding of the nature and critical elements of second degree assault when he entered a guilty plea in 1980. I therefore dissent to Part III.A., and concur in the remainder of the majority opinion.
[41] Lacy was represented by counsel at the providency hearing. The majority notes that Lacy’s counsel had been provided with a copy of the information. The information charged Lacy with the “knowing assault” of his victim “with intent to commit the felony of Second Degree Rape.” See Noel v. Idaho, 113 Idaho 92, ___, 741 P.2d 728, 730 (Idaho App. 1987) (“A defendant must be informed of the intent element before a guilty plea can be regarded as voluntary. This requirement may be met when the information, referring to the intent element, is read to the defendant.”) The trial court said to Lacy: “You are appearing here with your attorney, . . . you have talked to him about this; you understand the charge?” Lacy responded in the affirmative. It is true that the court did not specify that the charge to which Lacy was pleading guilty was second degree assault “with intent to commit the felony of second degree rape.” There was, however, a discussion on the record and in the presence of Lacy and his counsel regarding the disposition of the case and the filing of a “Sexual Psychopathy Petition.”[1] The parties agreed that a petition in sexual psychopathy would be filed and that Lacy would be sent for the 90-day evaluation. [42] Most significantly, the prosecuting attorney entered a detailed account of the assault that included the information that Lacy had pulled the victim into his car “and she struggled and . . . he then choked her with his hands around her neck, and she lost consciousness.” When the victim regained consciousness she awoke to find her assailant sitting in the car masturbating; he again attempted to attack her and she again struggled. “Threats were made that she should comply with his demands or she would be killed, and she then stopped struggling and he was able to partially remove her blouse by unzipping it, and, again, to take her pants down to her ankles.” [43] “Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” [44] Henderson v. Morgan, 426 U.S. 637, 647 (1976), quoted in Marshall v. Lonberger, 459 U.S. 422, 436 (1982). [45] Considering the record as a whole, I would conclude that the defendant sufficiently understood the mental state element of the charge — that he intended to commit rape when he assaulted Annette Muse. The prosecutor’s presentation of the factual basis for the charge established the sexual nature of the assault in detail.[2] “Upon hearing this information, the defendant did not protest or attempt to withdraw his earlier guilty plea.” People v. Adrian,Page 11
701 P.2d 45, 48 (Colo. 1985). We came to a similar conclusion in People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974), where we held:
[46] “The record in this case indicates that after the court accepted the guilty pleas the prosecution proceeded to state to the court and the jury a summary of the prosecution’s evidence in the case, which included a full statement about the attempted holdup and shooting. Defendant Scheer and his counsel were present in the courtroom for this recitation and no objection was made. . . . We find that there was a factual basis in the record for the plea in this case and that defendant understandingly made his plea.” [47] Id. at 21, 518 P.2d at 835-36. In addition, the defendant was present for discussions on the record with his attorney concerning the filing of a petition for his sexual psychopathy evaluation. Again, he did not protest. Based on this, I cannot conclude that the defendant did not understand the sexual nature of the assault charge. We have noted that “a factual basis may be established by the record as a whole” in concluding that reports by two psychiatrists plus the affidavit accompanying the information were sufficient to establish the factual basis for a plea. Wilson v. People, 708 P.2d 792, 798-99 (Colo. 1985). I would find that the defendant was sufficiently aware of the nature of the charge to enter a knowing and voluntary plea of guilty. [48] The effect of the majority’s holding is to create a “form over substance” application of Crim. P. 11 as it applies to specific intent crimes. Lacy conceded that he assaulted the victim, thus establishing the first element of the crime. I believe that the intent element — intent to commit second degree rape — was understandable from a reading of the information and from the totality of the proceedings in the record. The trial court is not required to follow a “formal ritual.” People v. Wade, 708 P.2d 1366, 1368 (Colo. 1985). The defendant conceded that he had spoken with his attorney and that he understood the charge. I therefore concur in part and dissent in part. [49] I am authorized to say that JUSTICE ROVIRA and JUSTICE MULLARKEY join in this concurrence and dissent.