Cunningham v. Diesslin, 95-1166

• Decision Date: 13 August 1996
• Docket Number: No. 95-1166,95-1166
• Citation: 92 F.3d 1054
• Parties: Anthony Lee CUNNINGHAM, Petitioner-Appellant, v. Warren T. DIESSLIN, Warden, Buena Vista Correctional Facility, Colorado Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1054

92 F.3d 1054

Anthony Lee CUNNINGHAM, Petitioner-Appellant, v. Warren T. DIESSLIN, Warden, Buena Vista Correctional Facility, Colorado Department of Corrections Respondent-Appellee.

No. 95-1166.

United States Court of Appeals Tenth Circuit.

Aug. 13, 1996.

Rehearing Denied Sept. 30, 1996.

Kathleen A. Lord, Deputy State Public Defender (David F. Vela, Colorado State Public Defender, with her on the brief), Denver, Colorado, for Petitioner-Appellant.

Robert M. Petrusak, Senior Assistant Attorney General (Gale A. Norton, Attorney General, with him on the brief), Denver, Colorado, for Respondent-Appellee.

Before SEYMOUR, Chief Judge, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Anthony Lee Cunningham appeals from the district court's denial of his petition for a writ of habeas corpus. In 1982, Cunningham pleaded guilty in Colorado state court to first-degree sexual assault. He now argues that his plea was neither knowingly nor intelligently entered because he did not understand the length of incarceration to which he could be subjected. Cunningham mistakenly believed that he would serve only half of his sentence. He seeks specific performance of the plea bargain as understood by the parties or, in the alternative, to withdraw his plea. For the reasons given below, this court affirms the judgment of the district court.

I. BACKGROUND

Cunningham was originally charged in the District Court, City and County of Denver Colorado, with first-degree sexual assault and three other counts. He pleaded guilty to the sexual assault charge, a class-2 felony, on September 13, 1982. Colo.Rev.Stat. § 18-3-402(3). The State subsequently dismissed the remaining counts. At the time of his guilty plea, first-degree sexual assault carried a possible sentence of twelve to twenty four years incarceration. Id. § 18-1-105(1)(a)(I), (9)(e). The trial court ¹ sentenced Cunningham to seventeen years.

Consistent with the plea agreement, however, the trial court stayed Cunningham's sentence. Instead of incarceration under the Department of Corrections, the plea agreement provided that Cunningham, who was eighteen at the time of his plea, would enter a treatment program at the Closed Adolescent Treatment Center under the supervision of the Department of Youth Services. If Cunningham violated any of the rules of the treatment center, however, the trial court would lift the stay of his sentence and he would serve the balance of his sentence under the supervision of the Department of Corrections.

As a result of Cunningham's subsequent violation of the rules of the Closed Adolescent Treatment Center, the trial court terminated his treatment on July 6, 1984. In accordance with the terms of the plea agreement, the trial court permanently lifted the stay of Cunningham's seventeen-year prison sentence and ordered him transferred to the Department of Corrections.

At the time Cunningham committed his offense, Colorado generally sentenced persons under a determinate sentencing scheme. See Thiret v. Kautzky, 792 P.2d 801, 804 (Colo.1990) (en banc). This scheme removed substantially all discretion from the sentencing courts and the Colorado State Parole Board (the "Parole Board"). Id. at 803-04. Persons sentenced under the determinate scheme received mandatory parole after reaching the parole date, determined by deducting vested good time and earned time credits from the sentence. ² Id. at 805. Thus, under the determinate scheme, the Parole Board could not extend the parole date beyond that established by the formula. From the time of the legislature's enactment of determinate sentencing in 1979 until January 1989, the Parole Board interpreted the requirement of mandatory parole to apply to all inmates serving sentences for crimes committed between July 1, 1979, and July 1, 1985, with limited exceptions. ³ Thiret, 792 P.2d at 806.

One exception to mandatory parole, in the Parole Board's pre-1989 view, was for persons sentenced pursuant to the indeterminate scheme of the Sex Offenders Act, §§ 16-13-201 to -216 of the Colorado Revised Statutes. Thiret, 792 P.2d at 803; Aue v. Diesslin, 798 P.2d 436, 438 n. 2 (Colo.1990) (en banc). Persons sentenced under this indeterminate scheme were not subject to mandatory parole but were reviewed yearly by the Parole Board. Id. Cunningham was not sentenced for first-degree sexual assault under the Sex Offenders Act, but was given a determinate sentence under § 18-3- 105(1)(a)(I), (9)(e) of the Colorado Revised Statutes.

The Parole Board changed its interpretation of the exception to the mandatory parole provision in January 1989. Under this new interpretation, all individuals sentenced for any sex offense, as the Sex Offenders Act defines "sex offense," ⁴ but not limited to those who were sentenced pursuant to that Act, were not subject to mandatory parole. Thiret, 792 P.2d at 803. The Parole Board thus had discretion to grant or deny parole to all persons convicted of a defined sex offense even if they had received a determinate sentence. Id. The Colorado Supreme Court has since upheld the Parole Board's new interpretation of the extent of its discretion and the consequent retroactive increase in incarceration time. Id. at 806-07; see also Aue, 798 P.2d at 441 (upholding the Thiret decision against a due process challenge on the ground that the new interpretation was foreseeable).

Soon after the Parole Board changed its interpretation of its authority under § 17-2-201(5)(a), Cunningham learned that mandatory parole would not apply to him. On August 2, 1989, he filed a motion in Colorado state court to vacate his plea. Cunningham argued he did not voluntarily and knowingly enter his guilty plea because he did not understand the consequences. In particular, Cunningham alleged he was advised by counsel that if he were sentenced to prison, his sentence would be subject to mandatory parole. Cunningham claimed to understand this to mean that he would be released from prison after serving only one-half of his sentence. He alleged that he was not advised that he would fall into an exception to mandatory parole because his conviction was for a sex offense.

The habeas court subsequently held a hearing and denied Cunningham's motion to vacate his plea. At this hearing, the parties stipulated to certain pertinent facts: (1) Cunningham's initial counsel advised his clients that they would only have to serve one-half of their sentences less earned time; (2) the district attorney who negotiated the plea also believed that the maximum time of incarceration would be one-half the sentence imposed; and (3) this half-time provision was not part of the plea offer. In addition, Cunningham's attorney at the time of his guilty plea stated on the record and without objection that he understood mandatory parole to apply and that he advised Cunningham he would serve half his sentence if the stay were lifted.

Cunningham also testified at the hearing in the habeas court. He stated he was advised by counsel and understood that the maximum amount of time he could be incarcerated under the plea agreement was one-half the maximum penalty of twenty four years. He explained that this understanding was the only reason he pleaded guilty. Cunningham also testified that if he had known he would have to serve his entire sentence, he would not have pleaded guilty.

The habeas court denied Cunningham's requested relief and ruled that his plea was voluntarily and intelligently made. The habeas court pointed to the many advisements by the trial court on the record to Cunningham that he could receive a twenty four-year sentence. Prior to taking his plea, the trial court specifically told Cunningham of the possible twenty four-year sentence at least five times. The trial court also warned Cunningham, prior to taking his plea, that it was considering a sentence of about sixteen years and that if he violated the rules of the treatment center, "[Y]ou are going to do 16 years at the penitentiary." In addition, the trial court asked Cunningham whether he understood the possible sentence that could be imposed as a result of his plea; Cunningham responded, "Yes."

Prior to taking Cunningham's plea, the following colloquy took place:

THE COURT: ... Now, have there been any other promises made to you other than what I have just talked about here to get you to enter this plea?

THE DEFENDANT: No.

THE COURT: Has anybody at all told you that I would give you a certain sentence or treat you in a certain way other than what's been said here?

THE DEFENDANT: No.

Despite this colloquy, the habeas court found that Cunningham was told by his attorneys that he would only have to serve one-half of his sentence plus one year of parole. Moreover, the habeas court acknowledged that it shared the understanding of the parties at the time of the plea as to the application of mandatory parole to Cunningham's sentence.

Nevertheless, the habeas court also found that Cunningham did not rely on the advice that he would be released after serving half his sentence. It further found that he made his plea solely with the consideration that he would enter the treatment program and avoid supervision by the Department of Corrections. The habeas court based this finding on statements made during the plea colloquy. Prior to the plea, the trial court asked Cunningham the reason for the plea hearing and Cunningham responded, "I don't know, so that I can go to the [Closed Adolescent Treatment Center]." Then the trial court explained to Cunningham the nature and elements of the crime to which he was pleading guilty and the right to trial he was foregoing in order to ensure that Cunningham understood the effect of his guilty plea. Cunningham responded that he understood the explanations given to him by the trial court. On these bases, the habeas court held that Cunningham's guilty plea was voluntarily and knowingly made.

The Colorado Court of Appeals affirmed ...