People v. Campbell, 06CA0582.

• Decision Date: 29 November 2007
• Docket Number: No. 06CA0582.,06CA0582.
• Citation: 174 P.3d 860
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clyde D. CAMPBELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

174 P.3d 860

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clyde D. CAMPBELL, Defendant-Appellant.

No. 06CA0582.

Colorado Court of Appeals, Div. I.

November 29, 2007.

John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Clyde D. Campbell, Pro Se.

Opinion by Judge MÁRQUEZ.

Defendant, Clyde D. Campbell, appeals the trial court order denying his Crim. P. 35(c) motion for postconviction relief. We affirm and remand for further proceedings.

The charges in this case stem from an altercation involving defendant and his then live-in girlfriend (victim). As pertinent here, defendant pointed a gun at the victim and ordered her to undress. The victim responded by saying, effectively, "I'd rather be dead." Defendant then fired a shot next to her.

Defendant was charged with two counts of sexual assault, and one count each of felony menacing, criminal extortion, attempted sexual assault, and failure to leave the premises. Pursuant to a plea agreement, defendant pleaded guilty to one count of felony menacing, one count of criminal extortion, and one count of failure to leave the premises with possession of a weapon. The prosecution dismissed the remaining counts, and the trial court sentenced him to two years of probation.

Less than five months later, the trial court held a probation revocation hearing based on allegations that defendant had violated his probation by retaliating against the victim. Following the hearing, the trial court revoked defendant's probation and resentenced defendant to concurrent terms of one and two years in the Department of Corrections (DOC) for the felony menacing and criminal extortion counts, respectively, and one year in jail on the failure to leave the premises count.

Defendant filed a timely pro se Crim. P. 35(c) motion alleging among other things that (1) his plea agreement was illegal because the charges did not include a domestic violence designation as required by section 18-6-801, C.R.S.2007; (2) the extortion statute is unconstitutionally overbroad; (3) no factual basis existed for the extortion charge; (4) the trial court erred in revoking his probation because the act giving rise to the violation was protected by his constitutional right to free speech; and (5) he was denied due process because police did not perform blood alcohol content testing, which deprived him of exculpatory evidence. The trial court summarily denied the motion, finding that (1) the plea and conviction were not illegal; and (2) defendant did not allege a breach of the plea agreement, had stipulated to the factual basis, and had not asserted a cognizable due process claim. This appeal followed.

I. Domestic Violence Designation

Defendant first contends that the trial court erred when it accepted his plea without a domestic violence designation as required by sections 18-6-801(3) and 16-21-103(2)-(3), C.R.S.2007. We perceive no reversible error.

For a plea of guilty to be valid, it must be knowingly, intelligently, and voluntarily made. People v. Pozo, 746 P.2d 523, 525 (Colo.1987).

Section 16-21-103 (2)(b)(II), C.R.S.2007, provides, in pertinent part, that if a law enforcement agency directly issues a complaint or summons for any charges, the agency "shall identify on the face of such document whether the factual basis for the charge or charges includes an act of domestic violence." Similarly, a district attorney who files any criminal case with the court shall submit any other information a law enforcement agency is required to submit in accordance with subsection (2). See § 16-21-103(3).

Section 18-6-800.3(1), C.R.S.2007 defines "domestic violence" to mean "an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship."

Further, section 18-6-801(3) provides:

A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3(1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103. . . . No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3(1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.

Here, the record contains a pretrial domestic violence screening instrument. In addition, it is undisputed that (1) the underlying factual basis of defendant's conviction involved an act of domestic violence because the victim and defendant had lived together for a number of years; (2) neither the complaint nor the written plea agreement included a "domestic violence designation"; and (3) the prosecutor did not represent that he would be unable to make a prima facie case on the original charges.

Defendant contends, the People concede, and we agree that accepting defendant's plea when the criminal complaint did not include an annotation indicating that the underlying factual basis for the charges involved an act of domestic violence or, in the alternative, requiring the prosecutor to represent that he or she could not make a prima facie case on the original charge, was a violation of section 18-6-801(3).

However, the parties disagree on how that statutory violation affects defendant's plea agreement and subsequent conviction. On the one hand, defendant's sole argument is that the plea should not have been accepted. While he argued before the trial court that his plea was null, void, and unenforceable, on appeal he does not define what relief he seeks. On the other hand, the People argue that the violation was merely technical and can be corrected by remanding the case for the court to amend the mittimus to include the domestic violence designation. We conclude that the violation is technical and remand the case to the trial court to allow the prosecution to amend the complaint to reflect that the charges involved an act of domestic violence. We reach that conclusion for the following reasons.

First, when read together, these statutes require only that the face of the complaint identify that the underlying factual basis of the charges involves domestic violence. They do not specify what the trial court is to do other than not accept a plea that does not include the domestic violence designation. See People v. Banks, 983 P.2d 102, 107 (Colo. App.1999) (when two statutes address the same subject matter, courts must attempt to read them together and reconcile them so as to give effect to each statute), aff'd, 9 P.3d 1125 (Colo.2000). The statutes do not state what consequences flow from failure to make a domestic violence designation or state that a plea without such a designation is void. They do, however, indicate possible adverse consequences affecting a defendant that follow the entry of such a designation. See §§ 16-21-103, 18-6-801(3)-(4), (7), C.R.S. 2007.

Second, the trial court found at the providency hearing that defendant's plea was entered knowingly and voluntarily, and defendant does not contest that finding in his motion in the trial court or in his briefs on appeal. Defendant stipulated to a factual basis for the plea, the parties do not dispute that the underlying factual basis involves an act of domestic violence, and at sentencing, the court found that "[t]his was a particularly ugly and traumatic domestic violence incident." Therefore, we conclude that defendant's plea is valid and constitutional. See People v. Antonio-Antimo, 29 P.3d 298 (Colo.2000) (a guilty plea must be voluntarily, knowingly, and intelligently made to be valid and constitutional).

We also conclude that, in accepting the plea, the court essentially treated the complaint as having been amended to include a domestic violence designation. Cf. People v. Thomas, 832 P.2d 990, 992 (Colo.App.1991) (failure to formally amend the information did not deprive court of jurisdiction where defendant was correctly advised of the charges). See generally People v. Carlson, 72 P.3d 411, 415 (Colo.App.2003) (a "simple variance" occurs when the charged elements are unchanged, but the evidence at trial proves facts materially different from those alleged, and it is immaterial unless it prejudices the defendant's substantive rights).

Third, before accepting a guilty plea, a court must ensure that a defendant "understands the possible penalty or penalties" associated with the plea. Crim. P. 11(b)(4). Thus, the court must apprise the defendant of direct, but not collateral, consequences attending the plea. Craig v. People, 986 P.2d 951, 963 (Colo.1999).

Direct consequences are those that have a definite, immediate, and largely automatic effect on the range of possible punishment. People v. Birdsong, 958 P.2d 1124, 1128 (Colo.1998). In contrast, a collateral consequence is one that is contingent on a future event or an action taken by some individual other than the sentencing court. People v. Marez, 39 P.3d 1190, 1193-94 (Colo. 2002); People v. Jackson, 109 P.3d 1017, 1021 (Colo.App.2004).

Here, defendant was advised of the appropriate sentences, including mandatory parole, that he risked receiving upon entry of his guilty plea and he received concurrent sentences of one and two years in the DOC, which comported with the advisement.

Although the trial court did not advise defendant of the fact that repeat domestic violence offenders face increased punishments under section 18-6-801(7), the statute does not require such an advisement, and that fact would not invalidate his plea because the...