No. 85SC311Supreme Court of Colorado.
Decided September 8, 1987. Rehearing Denied October 5, 1987.
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Certiorari to the Colorado Court of Appeals
David F. Vela, Colorado State Public Defender, Peggy O’Leary, Deputy State Public Defender, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, John Milton Hutchins, First Assistant Attorney General, Appellate Section, Eric Perryman, Assistant Attorney General, Appellate Section, for Respondent.
EN BANC
JUSTICE MULLARKEY delivered the Opinion of the Court.
[1] We granted certiorari to review whether a defendant can collaterally attack prior uncounseled speeding convictions at a trial for driving after judgment prohibited despite his failure to raise the issue during driving under suspension (DUS) proceedings based on such speeding convictions and his entry of valid guilty pleas to the DUS charges. We hold that he cannot and affirm the judgment of the Court of Appeals. I.
[2] In 1978, when he was seventeen years old, the defendant pled guilty to two speeding violations and accumulated seven points on his license. As a result, the defendant’s license was suspended on December 27, 1978, under section 42-2-123, 17 C.R.S. (1984), which gives the Department of Motor Vehicles the authority to suspend the license of a minor who has accumulated more than four points within any twelve consecutive months.[1] The record is undisputed that on neither of the speeding tickets was the defendant advised of his rights nor was he advised or represented by counsel before pleading guilty.
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and was advised to plead guilty. The defendant did not contest the validity of the underlying speeding convictions during these proceedings. None of the DUS convictions was appealed.
[4] As a result of the three DUS convictions, the Division of Motor Vehicles found the defendant to be an habitual traffic offender, under section 42-2-202(2)(a)(III), 17 C.R.S. (1984), and his license was revoked for five years under section 42-2-203, 17 C.R.S. (1984).[3] The defendant attended the revocation hearing and, prior to the hearing, he consulted the attorney who had represented him on two of the previous DUS convictions. [5] On May 14, 1982, the defendant was stopped for driving with faulty brake lights on his trailer. On June 10, 1983, after a trial to the court, he was convicted of driving after judgment prohibited in violation of section 42-2-206(1), 17 C.R.S. (1984),[4] which is a class 5 felony carrying a one to two year presumptive sentence and an additional year of parole, under section 18-1-105(1)(a)(I), 8B C.R.S. (1986). The defendant appealed his felony conviction alleging, inter alia, that the trial court erred in disallowing a collateral attack on the validity of the underlying speeding convictions, which led to the three DUS convictions, which in turn formed the basis of his habitual traffic offender status and the revocation of his license. The Court of Appeals affirmed and we granted certiorari to review this issue. II.
[6] A defendant in Colorado in a trial for driving after judgment prohibited may collaterally attack the traffic convictions which formed the basis for his conviction as an habitual traffic offender.
that the right to collaterally attack the prior convictions was available regardless of whether the defendant had a right to counsel in the prior traffic offense proceedings. First, in the absence of a clear expression of legislative intent authorizing the use of prior uncounseled traffic offense convictions in subsequent criminal prosecutions the rule of lenity requiring criminal statutes to be construed in favor of the accused allows criminal defendants to challenge the prior convictions. Id. Second, convictions obtained in violation of the right to counsel are “not sufficiently reliable to support the severe sanction of deprivation of liberty.” Id. at 1126.
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[9] In People v. Hampton, 619 P.2d 48 (Colo. 1980), this court extended its ruling in Roybal to include convictions obtained where the defendant admitted the guilt of the traffic offenses and paid his fine without any court appearance. The defendant in Hampton was found to be an habitual traffic offender under section 42-2-202(3), 17 C.R.S. (1984) on the basis of ten or more moving violations, each of which carried a penalty point assessment of four or more points, within a five year period.[5] We held in Hampton that: [10] “a traffic offense conviction obtained by acknowledgement of guilt and payment of a statutorily specified fine at the violations bureau may not be used to support the criminal sanctions of section 42-2-206, C.R.S. 1973, unless the person who elects the fine-payment procedure is informed that he has a right to counsel and unless he waives that right.” [11] Hampton, 619 P.2d at 52. [12] Similarly, in a misdemeanor trial for driving with a suspended license, a defendant may collaterally attack the uncounseled underlying convictions. People v. Gandy, 685 P.2d 165 (Colo. 1984). This court i Gandy refused to limit the right to collateral attack of the underlying convictions to felonies because the misdemeanor charge of driving under a suspended license carried a mandatory minimum jail sentence.III.
[13] Before applying these principles to the case at hand it is important to understand clearly the procedural point at which the defendant seeks to assert his right to collaterally attack the underlying uncounseled convictions.
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to challenge the constitutionality of the speeding violations. Presence of counsel or the valid waiver of the right to counsel satisfies the holding of Roybal prohibiting the use of a conviction obtained without benefit of counsel as part of the foundation for a prison sentence. Unlike the situation in Hampton, the speeding tickets in this case were not the foundation for defendant’s status as an habitual traffic offender.
[22] Our present holding is supported by our decision in People v. Bernard, 656 P.2d 695 (Colo. 1983), where we upheld the validity of a prior guilty plea despite the possibility that the defendant may not have been properly advised at the time of the plea. We based this decision, in part, upon the defendant’s reconfirmation, with the advice of counsel, of the earlier plea at a providency hearing related to an habitual criminal charge and stated that if the defendant “ever had a serious objection to the [earlier] plea, this fact should have been made known long before he used the plea as a tool for avoiding a more serious conviction.” Id. at 697. [23] The judgment of the Court of Appeals is affirmed.