Mulkey v. Sullivan, 86SA118
| Decision Date | 18 April 1988 |
| Docket Number | No. 86SA118,86SA118 |
| Citation | 753 P.2d 1226 |
| Parties | Arthur M. MULKEY, Petitioner-Appellee, v. Patrick SULLIVAN, Sheriff of Arapahoe County, State of Colorado, Respondent-Appellant. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Linda Hotes, Deputy State Public Defender, Littleton, for petitioner-appellee.
Charles H. Richardson, Stacie G. Flanders, Michael J. Hyman, Aurora, for respondent-appellant.
The respondent-appellant, Arapahoe County Sheriff Patrick Sullivan, brings a direct appeal to this court from the Arapahoe County District Court's order releasing the defendant from the sheriff's custody, as a result of the defendant's successful petition for a writ of habeas corpus. 1 We agree with the district court that the defendant's advisement at the providency hearing was constitutionally inadequate, but affirm the district court's order under Colorado Municipal Court Rule 235, rather than as a proceeding in habeas corpus.
In October 1985, Arthur Mulkey (Mulkey or the defendant), was arrested by the Aurora Police Department and charged with eight criminal violations of the Aurora Municipal Code. 2 Mulkey received his initial advisement in the Aurora Municipal Court Building when an audio and videotaped advisement was shown to him and a number of other inmates as a group. He then appeared before a municipal court judge, entered pleas of not guilty to all charges, and set a date for trial. When the defendant appeared in court on his trial date a month later, however, he pled guilty to all charges. The municipal court judge advised Mulkey of certain rights and accepted his guilty pleas. Mulkey was sentenced to 180 days incarceration in the Arapahoe County Jail on each of seven counts, 3 terms to run consecutively, which resulted in a total sentence of 1,260 days. When Mulkey entered his guilty pleas, he was not represented by counsel, nor was he advised by the court that he had the right to a lawyer if he could not afford to hire one.
While incarcerated in the Arapahoe County Jail, 4 the defendant filed a Petition for Writ of Habeas Corpus in Arapahoe County District Court, asserting that his detention was illegal because he had not been represented by counsel when he entered his pleas, could not afford private counsel, and was not advised of his right to court-appointed counsel. The district court issued an Order for Writ of Habeas Corpus and held a hearing. After hearing Mulkey's testimony, the district court ruled that he was being detained on an illegal sentence, made absolute the Writ of Habeas Corpus, and ordered the Arapahoe County Sheriff to discharge Mulkey from custody. In so holding, the court ruled that under Colorado Municipal Court Rule 232 the defendant could not file a motion to withdraw his guilty plea. The court concluded, therefore, that Mulkey's Motion to Withdraw a Plea of Guilty was "appropriately then before the Court on Writ of Habeas Corpus."
The Colorado Municipal Court Rules of Procedure became effective in 1970. The purpose and construction of the Municipal Rules is described as follows:
These rules are intended to provide for the just determination of all municipal charter and ordinance violations. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
C.M.C.R. 202, 7B C.R.S. (1984). Because the Municipal Rules represent a simplified version of the Criminal Rules, reference to the Criminal Rules is appropriate, in some circumstances, for analysis of the Municipal Rules.
A. C.M.C.R. 211
The first issue we must decide is whether the district court correctly held that the municipal court's advisement of the defendant was unconstitutional. In its order, the district court reviewed Colorado Municipal Court Rule (C.M.C.R.) 211 and concluded that even though C.M.C.R. 211 did not contain the identical language found in Crim.P. 11, "there is nothing in the statute or rules that permit[s] a proceeding which violates an individual Constitutional right and the courts must interpret [C.M.C.R.] 211 in that regard." C.M.C.R. 211 is modeled on Crim.P. 11, which governs the entry of pleas in county and district courts. C.M.C.R. 211 provides in full:
Rule 211. Pleas
A defendant, personally or by counsel, may plead guilty, not guilty, or, with the consent of the court, nolo contendere. The court shall not accept the plea of guilty without first:
(1) Determining that the plea is made voluntarily with understanding of the nature of the charge; and (2) Explaining fully to the defendant his right to trial by jury, his right to counsel, and the possible penalty provided by charter or ordinance for the offense charged.
If a defendant refuses to plead or if the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty. If for any reason the arraignment here provided for has not been had, the case shall for all purposes be considered as one in which a plea of not guilty has been entered.
7B C.R.S. (1984) (emphasis added).
Under Crim.P. 11, when a defendant enters a guilty plea, the court must do the following:
(b) Pleas of Guilty and Nolo Contendere. The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:
(1) That the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;
(2) That the plea is voluntary on defendant's part and is not the result of undue influence or coercion on the part of anyone;
(3) That he understands the right to trial by jury and that he waives his right to trial by jury on all issues;
(4) That he understands the possible penalty or penalties;
(5) That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;
(6) That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads; ...
7B C.R.S. (1984). These findings must be made before the trial court accepts a defendant's guilty plea to ensure that the defendant's plea is constitutionally entered. People v. Canino, 181 Colo. 207, 211, 508 P.2d 1273, 1275 (1973). While Crim.P. 11 does not require the use of a prescribed ritual or wording, People v. Cushon, 650 P.2d 527, 529 (Colo.1982), a trial court must adhere strictly to the rule's requirements in order to show that a plea is voluntarily and intelligently made. People v. Sandoval, 188 Colo. 431, 433, 535 P.2d 1120, 1121 (1975); Canino, 181 Colo. at 211, 508 P.2d at 1275.
This advisement was given to the defendant by the municipal court judge before the judge accepted Mulkey's plea of guilty:
....
Are you Mr. Mulkey?
A Yes.
Q You need to understand that resisting arrest, assault and battery each carry a maximum jail penalty of $999 fine, 180 days in jail or both the fine and imprisonment on each one of these charges. The charge of disorderly conduct, failure to obey a lawful [sic]; trespass on private property and refusal to leave when ordered and malicious injury to property valued less than $100 each carry penalties of a maximum of $500 fine, 180 days in jail or both the fine and imprisonment.
....
The Court stands corrected, ... there are two charges of battery. You have got two counts and you are looking at a maximum of $999, 180 days in jail or both. There are two battery charges and there are also two malicious injury to property charges. Do you understand that you are facing eight charges here?
A (By the defendant) Nods head in the positive.
Q (By the Court) Are you ready for trial?
A I am ready to change my plea to guilty.
Q On all charges?
A Yes.
Q Do you understand that if you plead guilty to all charges, that the Court could sentence you to the maximum on all charges?
A Yes, sir.
Q In adding up all the charges with regard to maximum penalties, you are looking at almost $6,000 in fines and almost four years in a common jail. Do you understand that?
A Yes, sir.
Q Mr. Mulkey, you have to speak up.
A Yes, sir.
Q Mr. Mulkey, considering the maximum penalties that the Court could impose for a guilty plea on each one of these violations, do you want to maintain your guilty plea on each of the violations?
A Yes, sir.
Q Do you understand that by entering a plea of guilty, that you are giving up your right to a trial?
A Um-hum.
Q Do you understand you are giving up your right to be represented by an attorney?
A Yes, sir.
Q Do you understand you are giving up your right to be confronted by witnesses and to make the City prove its case against you, beyond a reasonable doubt, as to each of these violations?
A Yes, sir.
Q Are you pleading guilty because you are guilty?
Q The Court is going to make a finding that the guilty plea on each of these charges is voluntary and the Court is going to accept the plea on each charge.
Following this advisement and the court's acceptance of the guilty pleas, the municipal court sentenced Mulkey to the maximum jail term of 180 days on each of the seven charges to which he pled guilty, to be served consecutively. Shortly thereafter, Mulkey filed the petition for writ of habeas corpus.
At the district court hearing on Mulkey's habeas corpus petition, the court reviewed the advisement and concluded that it was...
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