Lucero v. People

Decision Date27 November 1967
Docket NumberNo. 22310,22310
Citation164 Colo. 247,434 P.2d 128
PartiesLouis Pete LUCERO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Edward H. Sherman, Public Defender, Truman E. Coles, Asst. Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

KELLEY, Justice.

Lucero, defendant below, is here by writ of error challenging the ruling of the trial court denying defendant's 35(b) motion (Colo.R.Crim.P.).

To properly discuss the issues, a chronology of the case is indicated.

On March 11, 1964, the defendant was charged by information with possession of two different types of narcotics, Cannabis, in count one, and Heroin in count two. Following his arrest defendant appeared in court without counsel. The court thereupon appointed Philip E. Lowery, a duly licensed attorney at law, to represent him. Prior to his arraignment, Lowery, on at least one occasion, conferred with the defendant in the county jail. At that time the defendant fully disclosed the facts surrounding his arrest, including those relating to the search for and seizure of the two narcotics. Lowery also discussed the case with the defendant's wife and with the district attorney. The substance of the conversation with the district attorney will be discussed in greater detail later in the opinion.

On March 31, 1964, with his counsel present, the defendant was arraigned and entered a plea of guilty to the second count of the information.

One month later, on May 1, 1964, the defendant, by his then counsel, filed a motion to withdraw his plea of guilty and to suppress the evidence.

On May 6, 1964, the court, with the same judge presiding who had accepted the guilty plea, held a hearing at which the defendant offered evidence in support of his motion. The court denied the motion.

On June 1, 1964, after a pre-sentence investigation, the defendant was sentenced to a term of not less than eight years and not more than fifteen years in the state penitentiary.

On January 5, 1966, while serving his sentence at Canon City, the defendant, pro se, filed a motion to vacate his sentence under the provisions of Colo.R.Crim.P. 35(b), alleging two grounds for relief. As his first ground, he alleged that 'The Counsel for the Petitioner misled and inadvisedly Plead the petitioner Guilty'; the second ground for vacation of the sentence was 'The Courts failure to suppress evidence obtained in violation of the 5th Amendment of The Bill of Rights, of The United States Constitution.' This reference is to the alleged unlawful search for and seizure of evidence, which point the defendant coupled with his May 1, 1964, motion to withdraw his plea of guilty.

The trial court granted the defendant a hearing on the 35(b) motion and appointed the public defender to represent him. It is the denial of this motion after an evidentiary hearing which is before us on writ of error.

We are confronted with a somewhat anomalous situation, inasmuch as the defendant, in the motion which he prepared, claims he was 'misled and inadvisedly Plead * * * Guilty' by his first counsel, whereas his second counsel, in his brief, argues that he did not knowingly and understandingly enter his plea of guilty and that the court failed in its responsibilities under Colo.R.Crim.P. 11, before accepting defendant's plea of guilty.

It will be recalled that defendant, prior to sentence, asked to withdraw his guilty plea and that he coupled this with a motion to suppress the admission into evidence of narcotic drugs. In the hearing on the 35(b) motion, defense counsel attempted to establish by the defendant that he would not have entered a plea of guilty if he had known that he could not have been convicted by a jury if the search warrant were invalid. The defendant displayed normal intelligence by answering the question to the satisfaction of counsel. However, the search warrant was not offered in evidence nor was there any affirmative evidence suggesting the invalidity of the warrant.

Be that as it may, the question of the validity of the search for and seizure of the contraband goods became moot upon the entry of the plea of guilty. Von Pickrell v. People, Colo., 431 P.2d 1003, announced by our court on October 2, 1967. The defendant forfeited his right to trial by pleading guilty. The only purpose that could be served by suppressing the evidence which was seized by the police would be to prevent its use by the prosecution at the trial. Colo.R.Crim.P. 41(e). The prosecution's need for the evidence, after the guilty plea, ceased to exist, hence the question of the validity of the evidence was not properly before the court, unless, of course, it could be shown that the defendant did not intelligently, understandingly, and voluntarily enter the plea of guilty.

It should also be noted in connection with this point that the defendant has not asserted in any pleading or brief or in his oral testimony that he is not guilty of the offense charged, or that he has a meritorious defense to the charge. Such an assertion is a prerequisite to a motion to withdraw a plea of guilty. Maes v. People, 155 Colo. 570, 396 P.2d 457; Champion v. People, 124 Colo. 253, 236 P.2d 127; Abshier v. People, 87 Colo. 507, 289 P. 1081.

It is well established law in this jurisdiction that an application by a defendant in a criminal case to change a plea of 'not guilty' to 'guilty' or from 'guilty' to 'not guilty' is addressed to the sound discretion of the trial court, and that its ruling on such an application will not be reversed except where there is a clear abuse of discretion. McIntosh v. City and County of Denver, 144 Colo. 59, 355 P.2d 97; Hawkins v. People, 131 Colo. 281, 281 P.2d 156; Gearhart v. People, 113 Colo. 9, 154 P.2d 47.

Another facet of this issue raised by the defendant is that the court erred when, in the 35(b) proceeding, it found that the defendant was properly advised of his rights, under Colo.R.Crim.P. 11, before his plea of guilty was accepted, and in finding that his plea of guilty was voluntarily and understandingly entered.

The record in the 35(b) hearing discloses that the defendant had been in court on two occasions for arraignment. The first time, without counsel, when the information was read to him and he was given a copy of it, together with a copy of the jury panel;...

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30 cases
  • Waits v. People, 84SC391
    • United States
    • Colorado Supreme Court
    • September 8, 1986
    ...and all nonjurisdictional objections relevant to the issue of factual guilt are rendered irrelevant by a guilty plea. Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967). The American Bar Association Standards of Criminal Justice relating to guilty pleas are in accord. Standard 14-1.4 stat......
  • People v. Gutierrez
    • United States
    • Colorado Supreme Court
    • January 19, 1981
    ...the court has abused its discretion. Maes v. People, supra; see People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975); Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967). Here the defendant contends that the circumstances in which the plea was entered (the risk that he would again be adjud......
  • People of The State of Colo. v. NEUHAUS
    • United States
    • Colorado Court of Appeals
    • November 25, 2009
    ...Pleas of Guilty, 60 F.R.D. 513, 516 (1973 & 1974). Our supreme court's explanation of Von Pickrell's rationale in Lucero v. People, 164 Colo. 247, 251, 434 P.2d 128, 130 (1967), anticipated the Supreme Court's analysis in Tollett, Menna, and Haring: The defendant forfeited his right to tria......
  • Neuhaus v. People
    • United States
    • Colorado Supreme Court
    • November 19, 2012
    ...hearing following a guilty plea without regard to the constitutionality of its seizure). Then, in Lucero v. People, 164 Colo. 247, 250–51, 434 P.2d 128, 130 (1967), this Court explored the contours of Von Pickrell, explaining:[T]he validity of the search for and seizure of the contraband go......
  • Request a trial to view additional results
2 books & journal articles
  • Amending Indictments in Colorado: Rule 6.8, Colo. R. Crim. P
    • United States
    • Colorado Bar Association Colorado Lawyer No. 6-5, May 1977
    • Invalid date
    ...(1956). 47. People v. Shortt, 6 Colo. Lawyer 346 (Dec. 6, 1976); People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967). 48. See C.R.S. 1973, § 16-5-301. 49. Cf. Skidmore v. People, supra; see People v. Huerta, 148 Cal.App.2d 272, 306 P.2d......
  • Chapter 2 - § 2.6 • WITHDRAWING GUILTY PLEAS PRIOR TO SENTENCING
    • United States
    • Colorado Bar Association Colorado DUI Benchbook (CBA) Chapter 2 Guilty Pleas
    • Invalid date
    ...to understand the nature of the charge is prerequisite in a petition to withdraw a plea. Maes, 396 P.2d 457; see also Lucero v. People, 434 P.2d 128 (Colo. 1967). "The withdrawal of a plea of guilty should not be denied in any case where it is the least evident that the ends of justice woul......

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