Benavidez v. People, 99SA160.

• Decision Date: 04 October 1999
• Docket Number: No. 99SA160.,99SA160.
• Citation: 986 P.2d 943
• Parties: Joe BENAVIDEZ, Defendant-Appellant, v. The PEOPLE of the State of Colorado, Plaintiff-Appellee.
• Court: Colorado Supreme Court

986 P.2d 943

Joe BENAVIDEZ, Defendant-Appellant, v. The PEOPLE of the State of Colorado, Plaintiff-Appellee.

No. 99SA160.

Supreme Court of Colorado, En Banc.

October 4, 1999.

Rehearing Denied November 1, 1999.

The Law Firm of Douglas S. Joffe, Douglas S. Joffe,Theodore B. Peak, Denver, Colorado, Attorneys for Defendant-Appellant.

Ken Salazar, Attorney General, John Daniel Dailey, Assistant Solicitor General, Cynthia A. Greenfield, Assistant Attorney General, Appellate Division Denver, Colorado, Attorneys for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, Attorneys for Amicus Curiae for the Defendant-Appellant.

Justice MARTINEZ delivered the Opinion of the Court.

This is the second of two decisions in which we consider the relationship between the plea agreement, the advisement, and the mandatory parole requirement set forth in section 18-1-105(1)(a)(V)(A), 6 C.R.S. (1998). In this case, Joe Benavidez seeks relief from a series of convictions and sentences entered by the Weld County District Court pursuant to negotiated plea agreements. Applying the analysis we announce today in Craig v. People, 986 P.2d 951 (Colo.1999), we conclude that Benavidez is not entitled to relief. Specifically, we reject his claim that the government made promises altering the application of mandatory parole in his case, and we find that he was sufficiently advised of the mandatory parole requirement to enter his plea with the requisite knowledge of the consequences. Accordingly, the post-conviction district court properly denied relief.

I.

Benavidez's pleas arose out of a series of arrests occasioned by his substance abuse. Before we more fully describe the plea documents and providency hearings, we find it useful to provide an overview of the progression of these cases and the resulting dispositions.

The first case, number 96CR163, was initiated after officers arrested Benavidez for possession of a controlled substance. Pursuant to a plea agreement, Benavidez pleaded guilty, while the People dismissed two additional cases that had been brought against Benavidez due to separate criminal episodes. In addition, the People recommended sentencing to Intensive Supervised Probation, and Benavidez agreed to get inpatient help with his drug addiction.

Shortly thereafter, Benavidez violated the terms of his probation. He also committed new crimes, including multiple thefts and felony menacing. Plea dispositions were negotiated for two new cases, numbers 96CR943 and 96CR1135, as well as the probation violation. This time, Benavidez agreed to spend thirty days in Weld County Jail and to admit he violated probation in 96CR163. The people agreed to dismiss a separate pending case against Benavidez, and to recommend sentencing to a community corrections program in both 96CR943 and 96CR1135. Sentencing was postponed, however, due to concerns regarding the availability of space in the community corrections program.

Before sentencing could take place, Benavidez once again committed new, more serious, crimes. Two additional cases, numbers 97CR887 and 97CR905, were brought after episodes in which Benavidez broke into private dwellings in search of drug money, threatening the occupants of the dwellings in the process. Because sentencing in cases 96CR943 and 96CR1135, and re-sentencing for the probation violation in 96CR163, had not yet taken place, the parties agreed to a plea agreement that would dispose of all five cases then pending against Benavidez. Pursuant to this agreement, Benavidez would plead guilty in both of the newest cases and acknowledge a violation of probation in the earlier matters. In return, the People would (1) recommend a five year "cap" to any sentence of confinement to the Department of Corrections; (2) recommend that all sentences be run concurrently; and (3) express a preference for getting Benavidez into a community corrections center to address his substance abuse in lieu of prison time, provided, however, that the community corrections center accepted Benavidez into the program.

The pleas were accepted by the trial court, but the participants were informed at a subsequent sentencing hearing that Community Corrections would not admit Benavidez. As a result, and pursuant to the agreed maximum on imprisonment time, the trial court sentenced Benavidez to five years in the Department of Corrections in each of the cases, with the exception of case 96CR943 where a three year period of imprisonment was imposed. All sentences were ordered to run concurrently, and Benavidez was given credit for time already served.

In connection with each of the pleas described above, Benavidez and his attorney completed a "WRITTEN WAIVER AND GUILTY PLEA FORM." By signing the waiver forms, Benavidez acknowledged that he had gone over the matters with his attorney; that he believed the District Attorney had sufficient evidence to convict; that he understood the rights associated with trial and wished to waive those rights;¹ and that he had read and understood both the list of elements that would have to be proven beyond a reasonable doubt at a trial, and the list of penalties associated with the charges in question. Defense counsel also signed the form, certifying that the matters contained therein had been explained to Benavidez and that, in the opinion of counsel, Benavidez understood "his rights, the charge or charges to which he [was] pleading guilty, and the possible penalties."

Attached to each waiver form (and incorporated by reference) was an additional document tailored to the particulars of each case, explaining in detail (1) the elements of the specific charges to which Benavidez was proposing to enter a guilty plea; (2) the type and range of penalties associated with the crimes in question; and (3) the matters on which the parties had reached an agreement. For cases 96CR163, 96CR943, and 96CR947, the advisement of penalties included a notation that "[a]ll sentences to the Department of Corrections may include 1 year mandatory and up to 5 years of parole." The forms for cases 97CR887 and 97CR905 indicated that "[a]ll sentences to the Department of Corrections shall include a mandatory parole period of 5 years." In each case, the description of penalties also indicated the applicable sentencing range for sentences to confinement in the Department of Corrections (including the adjusted periods that would apply in case of aggravating or mitigating circumstances), as well as the potentially applicable fines associated with each offense.

At each of the providency hearings associated with these matters, the trial court conducted a Crim. P. 11 advisement. The court's practice was to ensure that Benavidez had a copy of the plea documents in front of him, and then to review those documents and question Benavidez regarding his understanding of the same. The advisement conducted at the final providency hearing (with regard to cases 97CR887 and 97CR905) is illustrative:

THE COURT: The first page in each case explains your rights, is signed by you and [defense counsel]. They're identical in both cases. Did you go over these with your lawyer?

THE DEFENDANT: Yes, I did, Your Honor.

THE COURT: Do you understand those rights?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand you are giving them up by pleading guilty today? You are giving up the right to trial?

THE DEFENDANT: Yes, I understand, sir.

THE COURT: Are there any of these rights you would like me to explain more fully at this time?

THE DEFENDANT: No, sir.

THE COURT: Second page of each form begins with the explanation of the elements of the charges to which you have pled. These elements are the things that the district attorney would have to prove if you pled not guilty and went to trial. In each case, the elements are identical, except for the date and the name of the victim and the reasons for entering the residence. Do you understand the elements of each crime?

THE DEFENDANT: Yes, sir.

THE COURT: Do you wish me to explain any of the elements in either of these two offenses more thoroughly at this time?

THE DEFENDANT: No, Your Honor, I understand.

THE COURT: Second paragraph of each advisement form explains the penalties that could have been imposed if you had been found guilty at trial. Do you understand what you were facing up until this afternoon?

THE DEFENDANT: Yes.

THE COURT: And, finally, the plea agreement in each case indicates that, first, in 97CR905, Count 2 will be dismissed in return for your plea and you will receive a cap of five years to the Department of Corrections. I would assume that's a cap of five years to Community Corrections if he's sentenced there as well. And in 97CR887, it indicates that Count 1 will be dismissed and, again, a cap of five years to the Department of Corrections. Both cases to run concurrently with another and concurrently with the sentences in each of the 96 cases. Is that what your understanding is?

THE DEFENDANT: Yes, sir.

THE COURT: So, basically, you are getting a maximum of five years for five cases and all of the other charges are dismissed; is that your understanding?

THE DEFENDANT: That's my understanding, yes.

THE COURT: Other than what we have talked about, have any other promises been made to you about this?

THE DEFENDANT: No.

Significantly, neither Benavidez nor his counsel ever sought further explanation of the matters discussed in the advisement. After confirming that there was a factual basis for the charges in question, the court indicated it would accept the pleas.

Following sentencing, Benavidez was transported to a Department of Corrections facility. He subsequently filed a Crim. P. 35(c) motion challenging the validity of his sentence. The motion, which is not included in the record before us, was denied by the post-conviction court. Benavidez initiated an appeal, and we accepted...