Finney v. People

• Decision Date: 27 May 2014
• Docket Number: Supreme Court Case No. 12SC276
• Parties: Dallas Jeffrey FINNEY, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

325 P.3d 1044

Dallas Jeffrey FINNEY, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 12SC276

Supreme Court of Colorado.

May 27, 2014

Court of Appeals Case No. 09CA1949

Attorneys for Petitioner: Douglas Wilson, Public Defender, Rebecca R. Freyre, Denver, CO

Attorneys for Respondent: John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, CO

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶ 1 Section 16–11–206, C.R.S. (2013), requires a court to advise a probationer, at or before the commencement of a hearing on a revocation complaint, of the possible penaltieshe may face. In this case, we consider whether, to satisfy due process, Crim. P. 11(b)(4) independently requires a court to advise a probationer of the possible penalties he faces when he admits to a violation of a deferred judgment agreement.¹ Here, the record reflects that the defendant waived his statutory right to an advisement at his revocation hearing. The record also reflects that, prior to his revocation hearing, the defendant was advised on several occasions of the potential penalties he faced if his deferred judgment was revoked. Thus, we conclude that even if the defendant had not waived his statutory right to an advisement under section 16–11–206, the requirement of that statute was met in this case. We further hold that section 16–11–206 does not incorporate Crim. P. 11(b) or otherwise embody a constitutional due process right to a penalty advisement that cannot be waived by counsel. Thus, where, as here, a defendant waives his statutory right under section 16–11–206 to a penalty advisement at a revocation hearing, neither Crim P. 11(b) nor constitutional due process independently require such an advisement. Accordingly, we affirm the court of appeals' decision upholding the trial court's denial of postconviction relief.

I. Facts and Procedural History

¶ 2 In 2003, Petitioner, Dallas Jeffrey Finney (“Finney”), was charged with two counts of sexual assault-helpless victim ² and two counts of sexual assault-victim incapable.³ Beginning in July 2004, Finney entered into a series of plea agreements before the final agreement was accepted by the trial court in February 2005. During this time, five different trial court judges reviewed the agreements, and at several junctures, Finney was advised of the potential penalties he faced.⁴

¶ 3 In July 2004, Finney entered into his first plea agreement, agreeing to plead guilty to one count of class four felony sexual assault. Under the agreement, the judgment and sentence would be deferred for four years, and Finney would be placed on supervised probation. Finney signed a written plea advisement which stated that the potential penalties for the offense were “2 years to life imprisonment ... with mandatory 3 years parole.” In addition to the written advisement, the trial court verbally informed Finney of the potential life imprisonment penalty and questioned Finney to ensure that he had read and understood the advisement. After reviewing the probation department's presentence report, the trial court ultimately rejected the plea agreement.

¶ 4 In November 2004, Finney entered into a second plea agreement, which required him to plead guilty to one count of class four felony sexual assault and one count of class three misdemeanor harassment. The second plea agreement provided that the judgment and sentence would be deferred on the felony, but that the misdemeanor would remain on Finney's record. The trial court again advised Finney of the possible penalties, which it described as a maximum of “life imprisonment in the State Department of Corrections and a fine from two to $500,000, plus three years of mandatory parole.” When asked by the trial court if he wished to plead guilty “[k]nowing the possible penalties and places of confinement,” Finney responded, “yes.” Later in the hearing, however, when the court asked Finney if he wished to make a statement in mitigation of his offense, Finney insisted that he was “not a sexual offender” and that he “didn't do this.” In light of these statements, the trial court vacated Finney's plea, stating that it would not accept a guilty plea from a defendant who maintained his innocence.

¶ 5 In February 2005, Finney entered into a third plea agreement which provided that Finney would plead guilty to one count of class four felony sexual assault and one count of class one misdemeanor third degree assault. Under this agreement, the judgment and sentence would be deferred on the felony, but, among other conditions, Finney would be subject to intensive supervised probation, would be required to serve up to ninety days in jail, and would have to submit to sex offender testing and treatment. Once again, the trial court advised Finney that the penalty for the class four felony was two years to life imprisonment, plus three years of mandatory parole that “could be extended beyond that.” ⁵ And, once again, Finney acknowledged to the court that he understood that “those penalties would not apply unless [he] violated” the terms of the deferred judgment agreement. In response to questions from the court, Finney stated that he had read the written agreement; his counsel had explained it to him; he understood the alternatives he had to entering into the agreement; he had received no additional promises or commitments that were not in the agreement; he was satisfied with his plea counsel's representation; he had not been coerced to accept the agreement; and the decision to accept the plea agreement was his alone. The trial court then accepted Finney's guilty plea.

¶ 6 In June 2008, the prosecution filed a complaint to revoke Finney's deferred judgment agreement, alleging that Finney violated the conditions of the agreement because he was terminated from the sex offender treatment program. In two separate appearances in August 2008, Finney, through defense counsel, waived any advisement on the complaint.

¶ 7 At a dispositional hearing on the revocation complaint in September 2008, defense counsel informed the court that Finney would admit to violating the conditions of the deferred judgment agreement and that the prosecutor would recommend a sentence of community corrections if Finney were accepted into such a facility. The prosecutor confirmed that she had indicated to Finney's counsel that she would “go along” with a probation department recommendation for a community corrections placement. The trial court explained that it would accept Finney's admission of the violation, but that it would not be bound by the prosecutor's recommendation of community corrections. Finney acknowledged that community corrections was not a condition of his admission to the violation of the deferred judgment agreement; he further stated that his admission was knowing and voluntary. The court accepted Finney's admission and set the case for sentencing. The court did not advise Finney of the potential sentence of imprisonment he faced if he was not accepted into community corrections.

¶ 8 Finney later learned that he was not eligible for community corrections because he had been terminated from the sex offender treatment program. Because Finney was not eligible for community corrections, the court sentenced him to two years to life in the Department of Corrections.

¶ 9 Finney filed a timely motion for post-conviction relief under Crim. P. 35(c), arguing, among other things, that the revocation court violated his due process rights by failing to advise him of the potential penalties prior to his admission of the violation of the deferred judgment agreement.⁶ Finney argued that the February 2005 advisement (when he pled guilty and entered into the deferred judgment agreement) did not satisfy his due process right to a penalty advisement when he admitted to violating the deferred judgment agreement four years later. Following a hearing, the trial court denied Finney's postconviction motion.

¶ 10 The court of appeals affirmed the trial court's denial of postconviction relief. People v. Finney, 2012 COA 38, ¶ 2, 328 P.3d 205. Relevant here, the court of appeals rejected Finney's contention that constitutional due process required the revocation court to advise Finney of the penalties he faced if the deferred judgment agreement were revoked. Id. at 33. The court observed that counsel, in Finney's presence, had waived Finney's statutory right to be advised of the possible penalties Finney faced if the deferred judgment agreement were revoked. The court concluded that: (1) counsel could waive Finney's rights to be advised of the possible penalties under section 16–11–206(2) and Crim. P. 32(f)(2) and enter an admission to the violation of the deferred judgment agreement; (2) the requirements of Crim. P. 11(b) did not apply in this case because in admitting to a violation of the deferred judgment agreement, Finney did not face a charge on a new substantive offense or plead guilty to a new crime; (3) Crim. P. 11 expressly applies only to the entry of a guilty plea and does not require that a defendant facing revocation of a deferred judgment agreement be readvised; (4) Finney was advised of his rights under Crim. P. 11 when he pled guilty and entered into the deferred judgment agreement in February 2005, and he assured the court that he understood the agreement, had entered into it voluntarily, knowingly, and intelligently, and that he understood that the penalties would not apply unless he violated the deferred judgment agreement; and (5) Finney was repeatedly advised of the potential penalties as required by Crim. P. 11(b). Id. at ¶¶ 35^–36, 39–41.

¶ 11 In dissent, Judge Hawthorne viewed Finney's admission to the violation of the deferred judgment agreement as a “guilty plea” because section 16–11–206(2) states that the revocation court shall require the probationer to “plead guilty or not guilty.” Id. at ¶ 78 ...