Crumb v. The People Of The State Of Colo.

• Decision Date: 26 April 2010
• Docket Number: No. 08SC884.,08SC884.
• Parties: James M. CRUMB, Jr., Petitionerv.The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

230 P.3d 726

James M. CRUMB, Jr., Petitionerv.The PEOPLE of the State of Colorado, Respondent.

No. 08SC884.

Supreme Court of Colorado,

En Banc.

April 26, 2010.

The Noble Law Firm, LLC, Antony M. Noble, Lakewood, Colorado, Attorney for Petitioner.

John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, we review the court of appeals' decision in People v. Crumb, 203 P.3d 587 (Colo.App.2008), which held that the defendant was not entitled to withdraw his guilty pleas based on the trial judge's participation in plea discussions. We reverse. We hold that the trial court abused its discretion when it failed to permit the defendant to withdraw his guilty pleas.

In this case, the trial judge stepped out of his role as a fair and impartial arbiter by making participatory comments. These comments appear to have influenced the defendant's decision to reconsider his earlier rejection of the offered plea and his ultimate decision to plead guilty. The judge gave the defendant advice, saying “let me talk to you as a human being,” and then pressured the defendant to accept a plea agreement by comparing the maximum sentence the defendant faced if convicted with a potentially more lenient sentence if the defendant accepted a plea agreement. The judge departed further from his judicial role by telling the defendant that he was “not going to be a happy judge” if no plea deal were reached. Given these participatory comments, we hold that the trial court abused its discretion by denying the defendant's motion to withdraw his guilty pleas. Accordingly, we reverse the court of appeals' decision and remand this case to that court to be returned to the trial court for proceedings consistent with this opinion.

II. Facts and Proceedings

In twelve different cases, the prosecution charged the defendant James Crumb with approximately fifty counts of felony theft, forgery, criminal impersonation, and offering a false instrument for recording. The prosecution also sought enhanced penalties under the Habitual Criminal Statute, section 18-1.3-801, C.R.S. (2005).

The charges stemmed in part from alleged misconduct beginning in 2000. Because numerous defense attorneys withdrew from representing the defendant, the trial court pushed the proceedings back until 2005. Ultimately the trial judge permitted the defendant to proceed pro se, appointed advisory counsel to assist with the defense, and set trial in the first case for Monday, October 24, 2005. On the Friday before trial, the judge began a pretrial conference by asking if the parties were going to trial. The prosecution said yes. The defendant said yes.

Without prompting from either side, the judge initiated a discussion concerning the status of plea negotiations and confirming that, once the pretrial conference was over, all offers by the prosecution would be withdrawn. The judge said:

I know there's been a lot of discussion about dispositions in this case. I'm not going to interject myself into that, except to say this. It's my understanding and I'm assuming [the prosecutor] will confirm this, that if we go through the pretrial conference and get ready for trial, all the offers are off the table and things are done.

The defendant stated that he was ready to go to trial because he felt that he had no choice. The judge then told the defendant that he had two options: to take the plea offered by the prosecution or to proceed to trial. The judge stated he did not want to know the details of the offer: “I don't even know what [the offer] is and I don't want to be told.” Then the judge informed the defendant that in Monday's trial he faced eight class-four felonies, each of which carried a maximum sentence of six years. Referring to the habitual criminal charges, the judge explained that if the defendant were convicted, then the judge would have no choice but to sentence the defendant to four times the maximum sentence for each felony.

The defendant's advisory counsel told the court that the defendant would like more time to consider his decision, and the court took a recess. Three hours later, the judge resumed the pretrial conference. The defendant stated that he would accept a plea bargain if the habitual crime counts were dismissed. The judge responded by saying that he could not get involved in plea negotiations.

The prosecutor then told the court that the defendant was unwilling to plead guilty and that the defendant had rejected existing plea offers. Addressing the judge, the prosecutor stated, “We've explored a number of options, Your Honor, including disposition of some cases and not others, but ultimately there is an offer on the table and it has not been accepted.”

At this point the trial judge made several expository statements directed at the defendant. He said that he was talking to the defendant “more as a human being than as a judge” and repeated what he had said earlier-that the defendant had a decision to make. The judge then reiterated his earlier statement that he could exercise sentencing discretion only if the defendant accepted a plea bargain. The judge's statements were as follows:

Let me just say this. This is more as a human being than as a judge. You [have] a lot on your plate. I understand it, but you've also had a lot of time to think about it. It's only fair that-we took a lot of time yesterday afternoon, and I'm trying to be patient and I'm not being impatient now, but it is unfair for me to do anything that makes [the prosecutor] have to keep delaying his preparation. If we're going to go to trial, he's got a right to prepare for his case, just as you do. If you're not going to go to trial, that's a different ball of wax; but, you know you're facing significant-you're facing the potential of significant time, Mr. Crumb, either way. I mean, we understand that, but if-if there's any discretion that can be exercised, and I'm not promising you anything when I say this, that discretion obviously exists in the context of a disposition. It will not exist if you are convicted and then habitual criminal charges kick in. There is just nothing. I'm rubber stamping what the Legislature tells me to do at that point.

(Emphases added).

Immediately thereafter, the defendant and advisory counsel engaged in an off-record discussion. When their exchange was finished, advisory counsel stated, “I think we have a deal.” The judge then directed the parties to return later in the day. Before recessing, however, the judge stated, “I'm not going to be a happy judge if the People tell me we don't have a deal.”

The proceedings resumed at around 4:30 p.m. that day. The defendant agreed to plead guilty to eight charges and to receive a sentence between forty and ninety years in exchange for the dismissal of the other cases and charges against him. The judge conducted a providency advisement in which the defendant confirmed that he reviewed the documents carefully and completely and that he understood them. The judge found that the defendant's guilty pleas were made freely, voluntarily, knowingly, and without coercion.

On December 9, 2005, forty-nine days after the pleas had been entered, the defendant filed a motion to withdraw his guilty pleas. He alleged that his pleas were “involuntary and made without his understanding and informed consent.” The same judge who accepted the guilty pleas heard arguments on this motion in a hearing on January 6, 2005. At this hearing, the defendant argued that he should be allowed to withdraw his plea because he was not given enough time to evaluate the plea agreement. According to the defendant, when he first received the plea agreement, he told advisory counsel that he disagreed with it and advisory counsel's response was that the court would be unhappy with this decision. The defendant said:

At about 4:40, advisory counsel ... came down to the court tank with the plea agreement, and at that time I commented to him that I wasn't in agreement to plead guilty. And he commented back to-his rebuttal was-the court was going to be unhappy with that, so we began to review the plea agreement. And the moment that I received the plea agreement in my hand, the deputies came and said that I was wanted in court.

(Emphasis added). The defendant also said that he had been intimidated by the process and had felt afraid to tell the judge that he did not want to accept the offer. The judge replied, “I was not then and I am not now angry at you, nor did I threaten you in any way, shape, or form by anything I said.” The judge denied the defendant's motion to withdraw his guilty pleas and continued the sentencing hearing to provide more time for counsel to review the presentence report.

Immediately following this hearing, the judge recused himself for reasons unrelated to this appeal, and a second judge conducted the final sentencing hearing. The defendant submitted a second motion to withdraw his guilty pleas, again alleging his guilty pleas were “involuntary and made without [his] understanding and informed consent.” ¹ The second judge denied this motion and sentenced the defendant to eighty years in the Department of Corrections. The defendant appealed.

The court of appeals held that the judge's comments violated the proscription against judicial participation in plea discussions. Crumb, 203 P.3d at 592. Nevertheless, the court of appeals held that the error in this case was harmless because the parties had been negotiating a multiple-case agreement for several weeks; the “happy judge” comment was made on the afternoon of the last day before trial was to start and after a tentative agreement had been reached; the trial court remained impartial and did not encourage a particular plea bargain; and the trial court “merely explained” the difference between discretionary...