Lamb v. People, 23713

Citation484 P.2d 798,174 Colo. 441
Decision Date10 May 1971
Docket NumberNo. 23713,23713
PartiesJames Dale LAMB, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtSupreme Court of Colorado

Edward H. Sherman, Truman E. Coles, Public Defenders, David A. Fogel, Deputy Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

By writ of error, defendant Lamb alleges the trial court erroneously denied his motion under Crim.P. 35(b) for post conviction relief. We do not agree and therefore affirm the judgment of the trial court.

Defendant's 35(b) motion essentially claims a constitutional violation by the trial court when it permitted him to withdraw his previously entered pleas of not guilty and not guilty by reason of insanity and to plead guilty to the charge of assault with a deadly weapon without the benefit of counsel under the circumstances of this case. As we understand it, the theme of the defendant's argument in support of reversal is that his plea of guilty should not be deemed a voluntary act because he was not represented by counsel and because he was 19 years of age at the time, had only a seventh grade education, and had been in a mental institution. The defendant also buttresses this argument with the allegation in his 35(b) motion that he pled guilty 'because of fear and duress when in fact he had a legitimate and meritorious defense of self defense.'

Our review of this record reveals that the trial court complied with Crim.P. 11 prior to accepting the defendant's plea of guilty. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. Although the defendant does not contend that the trial court did not adhere to the requirements of Crim.P. 11, he argues that blind adherence to the mandates of Crim.P. 11 is not enough under the circumstances here. The defendant claims that under the circumstances here, the trial court must go beyond the requirements of Crim.P. 11 by additional and careful inquiry of the defendant for the purpose of making absolutely certain that his plea of guilty is, in fact, his voluntary act.

The following facts are required for a full picture of what transpired prior to the defendant's plea of guilty on February 2, 1965. Having been charged with assault with a deadly weapon, the defendant on January 19, 1965 was arraigned before the trial court. At that time, without being represented by counsel, the defendant entered a plea of not guilty and also not guilty by 'reason of insanity at the time, since, and now.' Thereupon, the trial court ordered the defendant to be examined by a psychiatrist who was appointed by the court for this purpose.

Although the psychiatrist's report has not been made a part of the record, the trial court in its findings of fact at the conclusion of the 35(b) hearing, set forth that the psychiatrist had examined the defendant on three occasions at the jail and that during the third visit, the defendant told the psychiatrist that he wanted to change his plea to guilty as soon as possible; that he was 'trying to get away with the insanity but thought I'd better straighten my life out now.' The report, according to the trial judge's finding, also indicated that the defendant told the psychiatrist that he didn't want to waste any more of the psychiatrist's time and that he would rather have the time 'count on my sentence.'

It also appears from Exhibit A, a transcription of the arraignment procedures of February 2, 1965, that the psychiatrist communicated with the trial judge by phone and told him that he was going to submit a report stating that, in his opinion, the defendant was and is sane. On the basis of the above, the defendant apparently was then, at his request, returned to court on February 2, 1965 for rearraignment, at which time, he requested that his previous pleas of not guilty and not guilty by reason of insanity be withdrawn and that he be permitted to plead guilty.

As was stated previously, the trial court fully complied with the requirements of Crim.P. 11 before granting the defendant's request to withdraw his previous pleas, and to enter the guilty plea. With reference to the defendant's allegation in his 35(b) motion that his plea of guilty was entered because of fear and duress, the following colloquy between the trial judge and the defendant which took place at the rearraignment on February 2, 1965 is of significance:

'THE COURT: Understanding all these rights you have, do you insist on pleading guilty to the charge of assault with deadly weapon?

DEFENDANT: Yes, your Honor, and I would like to receive sentencing as soon as possible.

THE COURT: This has been your own free and voluntary action?

DEFENDANT: It certainly has, your Honor.

THE COURT: Did anybody threaten or coerce you?

DEFENDANT: No.'

It should also be noted from the transcript of the proceedings before the trial court on February 2, 1965 that prior to accepting the defendant's plea of guilty, the trial court made inquiry of the defendant regarding his desire to have an attorney represent him. The defendant stated that he understood that he would be entitled to be represented by an able lawyer and that if he didn't have the money, the court would appoint one for him. Nevertheless, the defendant did not request the appointment of an attorney and he insisted that he be permitted to plead guilty.

At the 35(b) hearing,...

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26 cases
  • Dunlap v. People
    • United States
    • Colorado Supreme Court
    • May 14, 2007
    ...of determining the weight and credibility to be given to witness testimony. Kailey, 807 P.2d at 567; Lamb v. People, 174 Colo. 441, 446, 484 P.2d 798, 800 (1971). Where the evidence in the record supports the findings and holding of the court, the judgment of the court will not be disturbed......
  • People v. Curtis
    • United States
    • Colorado Supreme Court
    • April 23, 1984
    ...relief proceeding, the burden is on the defendant to establish his allegations by a preponderance of the evidence. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971). However, in general the burden is on the prosecution to show effective waiver of a fundamental right. Barker v. Wingo, 407 U......
  • People v. Pozo
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    • Colorado Supreme Court
    • November 9, 1987
    ...Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971); see People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973); Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971); Normand v. People, 165 Colo. 509, 440 P.2d 282 The issue of ineffective assistance of counsel, as addressed by the major......
  • People v. Naranjo
    • United States
    • Colorado Supreme Court
    • October 26, 1992
    ...by a preponderance of the evidence. E.g., People v. McClellan, 183 Colo. 176, 178, 515 P.2d 1127, 1128 (1973); Lamb v. People, 174 Colo. 441, 446, 484 P.2d 798, 800 (1971). Under the Strickland standard, a defendant will establish a violation of his right to testify when he proves, by a pre......
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