PEOPLE v. HRAPSKI, 718 P.2d 1050 (Colo. 1986)

The People of the State of Colorado, Plaintiff-Appellant, v. Stephen Hrapski, Defendant-Appellee.

No. 84SA114Supreme Court of Colorado.
Decided May 19, 1986. Rehearing Denied June 9, 1986.

Appeal From District Court, Fremont County Honorable Paul J. Keohane, Judge

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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Dennis E. Faulk, District Attorney, Steven B. Rich, Deputy District Attorney, for Plaintiff-Appellant.

David F. Vela, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, for Defendant-Appellee.

EN BANC

JUSTICE VOLLACK delivered the Opinion of the Court.

[1] The People appeal from the trial court’s dismissal of two counts of an information charging the defendant, Stephen C. Hrapski, with four counts of being a habitual criminal, section 16-13-101, 8 C.R.S. (1985 Supp.),[1]
and attempted possession of contraband, section 18-8-204.1, 8 C.R.S. (1985 Supp.). The People also maintain the trial court abused its discretion in denying a motion to continue, and erred in denying motions for recusal and mistrial. We disapprove of the trial court’s ruling dismissing two of the habitual criminal counts, and the denial of the motion to continue. Because of the state constitutional guarantee against double jeopardy, the defendant may not be retried on the habitual criminal charges.[2]

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I.
[2] Stephen C. Hrapski (defendant) was initially charged with one count of possession of contraband, and four counts of being a habitual criminal. The case was dismissed after the preliminary hearing, but following appeal People v. Hrapski, 658 P.2d 1367 (Colo. 1983), the dismissal was reversed and the case remanded for trial on the charge of attempted possession of contraband and the habitual criminal counts. Trial commenced but a mistrial was declared during testimony of the defendant. Trial again resumed and following the prosecution’s case, the trial court, essentially on its own motion, dismissed two of the habitual criminal counts. The defendant was convicted by a jury of the charge of attempted possession of contraband.

[3] During the defendant’s motion for judgment of acquittal following the People’s case-in-chief, the trial court raised the issue of the validity of two guilty pleas underlying the defendant’s prior convictions. Having reviewed transcripts of pleas given in Jefferson County and Denver on his own initiative, the trial judge concluded the pleas were not made knowingly and voluntarily, and therefore were constitutionally invalid. The People moved to continue the hearing on the validity of the prior convictions on the grounds that no notice was given of the attack on the convictions and time was needed to prepare to contest the issue. The motion to continue was denied. The People’s subsequent motion for recusal of the trial court judge on grounds of partiality was also denied. Finally, a motion for mistrial was denied.

[4] The People brought this appeal challenging the denial of its motions to continue, for recusal, and for mistrial, challenging the ruling dismissing the habitual criminal counts, and protesting the trial judge taking an apparent advocacy role in the proceedings.

II.
[5] The People contend the trial court displayed the appearance of partiality towards the defense by raising the issue of the validity of the prior convictions and should have granted the motion for mistrial and motion for recusal.

[6] The record reflects that following the initial appeal, the trial court inquired of the defense as to whether a motion challenging the habitual criminal counts would be filed. At a subsequent motion hearing, the trial court again asked defense counsel if a collateral attack on the habitual counts would be filed, to which counsel responded he would only put the prosecution to its burden of proof on the issue. Defense counsel never filed a written motion collaterally attacking the prior convictions.

[7] At the hearing on the defense motion for judgment of acquittal, the trial court raised the issue of the validity of the prior convictions on its own volition.[3] Following

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an oral motion by defense counsel to dismiss two of the habitual criminal counts, testimony was taken from the defendant. The trial court concluded that providency hearings on those two counts were deficient, which placed the burden of proof on the People to show by a preponderance of the evidence that each conviction was obtained in accordance with the defendant’s constitutional rights. The trial court denied the People’s motion for a continuance to produce witnesses to meet this burden. The trial court subsequently dismissed the habitual criminal counts and denied the People’s motion for the judge to recuse himself and a motion for mistrial.

[8] We disapprove of the trial court taking a role which gave the impression of partiality towards the defense. Normally a motion to have a judge disqualified is raised pursuant to section 16-6-201(1)(d), 8 C.R.S. (1978), or Crim. P. 21(b)(1)(IV). The test of the legal sufficiency of a motion to disqualify a judge under the statute or the rule is whether the motion and required affidavits state facts from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with a party. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). The People did not move to disqualify the judge under the statute or rule, and as a result there is no evidentiary showing that the judge was biased or prejudiced. In the absence of such a showing, we are unable to conclude the trial judge was interested or prejudiced with respect to the case, the parties, or counsel.

[9] While we do not conclude that the judge should have recused himself from this case, we note that courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). The role of the judiciary, if its integrity is to be maintained, is one of impartiality. People v. Martinez, 573 P.2d 120 (Colo. 1974). Thus, we disapprove of the trial judge taking a role which placed his impartiality in question.

III.
[10] The People next contend the trial judge abused his discretion in denying the motion to continue. The People argue they needed time, however brief, to prepare to defend the attack on the habitual criminal counts. We agree.

[11] The granting or denial of a continuance is a matter resting in the sound discretion of the trial court, and will not be disturbed on appeal unless that discretion has been abused. People v. Espinosa, 575 P.2d 851
(Colo. 1978). In light of the fact that the trial court raised the issue of the validity of the defendant’s prior convictions, the People had no prior notice that they needed to produce evidence showing the prior guilty pleas were entered in accordance with the defendant’s constitutional rights. Evidence from the judges who accepted the pleas or the defendant’s attorneys in those cases may have tended to refute the trial court’s finding that the guilty pleas were constitutionally invalid. There is neither an indication that the People intended to delay the proceedings unnecessarily

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nor is there any indication that the defendant would have been prejudiced by a brief delay.

[12] Given the facts involved, justice required that the court continue the hearing to allow the People to gather evidence to show by a preponderance of the evidence that the prior guilty pleas were constitutionally obtained. Failure to grant the continuance to allow time for adequate preparation was an abuse of discretion, and we conclude the trial court erred in denying the motion. Because the defendant may not be tried again on these charges, we are limited to disapproving the trial court’s ruling.

IV.
[13] We next decide whether the record in this case supports the trial court’s conclusion that the defendant’s two guilty pleas were not made in accordance with Crim. P. 11(b). Following a review of the transcripts of the providency hearings, we conclude the defendant’s guilty pleas in the relevant cases were knowingly and voluntarily given, and therefore disapprove of the trial court’s dismissal of the habitual criminal charges.

[14] Defendant was charged with four counts of being a habitual criminal. One conviction resulted from a jury trial and was not contested. Another conviction resulted from a guilty plea before the trial judge in this case, and it was not contested. The two prior convictions resulting from pleas of guilty which were found to have been obtained in violation of defendant’s constitutional rights took place in two jurisdictions. The first was a guilty plea to the charge of attempted escape in Jefferson County District Court. The second was a guilty plea to the charge of sale of narcotic drugs in Denver District Court.

[15] Initially we note that pleas of guilty must comply with the requirements set forth in Crim. P. 11(b).[4] A guilty plea

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must be given voluntarily and with an understanding of the consequences of such plea People v. Wade, 708 P.2d 1366 (Colo. 1985). Upon challenging the validity of the prior conviction, the defendant’s burden is to make a prima facie showing that the challenged conviction was unconstitutionally obtained Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Quintana, 634 P.2d 413 (Colo. 1981); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981). A prima facie showing means evidence which, when considered in a light most favorable to the defendant and all reasonable inferences are drawn in his favor, will permit the court to conclude that the defendant pled guilty without voluntarily and understandingly waiving his rights set out in Crim. P. 11(b). Quintana, 634 P.2d at 416. When such a showing is made, 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. Id.

[16] In determining whether a guilty plea is made knowingly and voluntarily, no formal ritual need be followed by the trial court. People v. Lesh, 668 P.2d 1362 (Colo. 1982); People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). What is required is that the reporter’s transcript of the providency hearing discloses sufficient evidence to enable a reviewing court to determine whether the defendant’s plea was entered voluntarily and knowingly. Henderson v. Morgan, 426 U.S. 637 (1976); Boykin v. Alabama, 395 U.S. 238 (1969); People v. Wade, 708 P.2d 1366 (Colo. 1985).

[17] As to the Jefferson County guilty plea, the trial court after reviewing the transcript concluded the Jefferson County judge should have explained the meaning of attempt in more detail, did not advise the defendant of his right to a speedy and public trial, even though he was advised of his right to a jury trial, and did not go into enough detail as to the right of counsel. The trial court concluded that the defendant’s testimony when combined with the review of the transcript presented sufficient evidence to make a prima facie showing that the guilty plea was constitutionally invalid. We disagree.

[18] As to the Denver guilty plea, the trial court concluded the Denver court failed to adequately advise the defendant as to the elements of the charge, failed to advise him of his rights to speedy trial, public trial, unanimous verdict, jury of twelve, right of confrontation, right to call witnesses, compulsory process, right against self-incrimination, and the prosecution’s burden of proof. The trial court concluded a prima facie showing had been made that the guilty plea in that case was constitutionally infirm. Again, we disagree. The Denver trial court complied with the requirements of Crim. P. 11, which is all that is needed to show the plea was given knowingly and voluntarily.

[19] A record of a providency hearing demonstrating compliance with Crim. P. 11 should be deemed supportive of the conclusion that the defendant did enter his guilty plea voluntarily or understandingly. People v. Wade, 708 P.2d 1366 (Colo. 1985); People v. Marsh, 183 Colo. 258, 516 P.2d 431
(Colo. 1973). We conclude the record in this case does not support the trial court’s determination that the defendant’s guilty pleas were constitutionally invalid. The record reflects compliance with the requirements of Crim. P. 11, and supports the conclusion that defendant voluntarily and knowingly entered his guilty pleas. While the trial judge may give a more detailed advisement than is required by Crim. P. 11 in his own court, the law does not mandate the meticulous attention to detail imposed by the trial court in this case. The previous pleas of guilty were constitutionally valid and the defense failed to establish a prima facie case that his guilty pleas were not made in compliance with due process requirements. The judges at the providency hearings complied with Crim. P. 11 and

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the records of those hearings reflect that the defendant understood and voluntarily waived his rights. The trial court judge erred in dismissing the habitual criminal counts in this case.

[20] Jeopardy attached with respect to habitual charges upon the impaneling and swearing of the jury for the initial phase of the defendant’s trial on the substantive charge of attempted possession of contraband. Where a trial court dismisses habitual criminal charges after jeopardy has attached, Colorado constitutional doctrine prohibits the state from subjecting a defendant to a retrial of habitual counts when such retrial would require resolution of factual issues underlying the habitual charges, notwithstanding the trial court’s erroneous interpretation or application of substantive law in terminating the habitual criminal proceedings in the defendant’s favor. People v. Quintana, 634 P.2d 413, 420 (Colo. 1981). The Double Jeopardy Clause of the Colorado Constitution prohibits retrial on the factual issues inherent in the habitual criminal charges.

[21] Accordingly, we are limited to our disapproval of the dismissal of the habitual criminal charges. We further disapprove of the denial of the prosecution’s motion to continue the hearing on the collateral attack on the underlying guilty pleas.

[22] The rulings are disapproved.