People v. Baca, 24938
| Decision Date | 17 July 1972 |
| Docket Number | No. 24938,24938 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dennis Tony BACA, Defendant-Appellant, |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Harry K. Nier, Jr., Denver, for defendant-appellant.
This is a Crim.P. 35 proceeding.
The defendant was charged originally with attempted second-degree burglary, a felony. Later, a misdemeanor charge of accessory after the fact to attempted second-degree burglary was filed against him. He offered a plea of Nolo contendere to the misdemeanor charge. This was accepted, and the charge of attempted burglary was dismissed.
At the time the defendant tendered his plea, the court advised him that the penalty for the accessory after the fact charge was a maximum of two years in jail. The court did not advise him that, in lieu of a jail sentence, he also could be sentenced to the Colorado State Reformatory. C.R.S.1963, 39--10--1(2). Subsequently, after the court had considered a pre-sentence report, it sentenced him to an indeterminate term in the Colorado State Reformatory. Defendant thereafter filed the motion here under consideration, claiming only that it was error to fail to advise him of the possibility of being sentenced to the reformatory, as well as to the county jail. The court immediately vacated the sentence and re-sentenced him to eleven months in the county jail. He is here seeking a determination that he is entitled to withdraw his plea of Nolo contendere and enter a plea of not guilty. We affirm.
The following cases have been called to our attention: People v. Colosacco, Colo., 493 P.2d 650 (1972); People v. Mason, Colo., 491 P.2d 1383 (1971); People v. Riney, Colo., 489 P.2d 1304 (1971); People v. Randolph, Colo., 488 P.2d 203 (1971); Westendorf v. People, 171 Colo. 123, 464 P.2d 866 (1970); and Martinez v. People, 152 Colo. 521, 382 P.2d 990 (1963). In each of those cases there was a failure to explain the nature and elements of the Offense charged prior to acceptance of the plea, and in some there were other failures of compliance with Crim.P. 11(c). None of these decisions involved solely a failure to advise as to the correct and complete penalty.
We hold that the error was harmless. After the court corrected it, the sentence conformed to the...
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Clark v. People
...a modified sentence that removes the burden of the undisclosed consequence." Craig, 986 P.2d at 964 (quoting People v. Baca, 179 Colo. 156, 158, 499 P.2d 317, 318 (1972)). By pleading guilty under an agreement that included a stipulated sentence, Clark risked a maximum term of three years i......
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Craig v. People
...be rendered harmless by imposing a modified sentence that removes the burden of the undisclosed consequence. See People v. Baca, 179 Colo. 156, 158, 499 P.2d 317, 318 (1972). In the mandatory parole context, then, withdrawal is not required if the defendant can be given an alternative sente......
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People v. Marez, No. 00SC695.
...court does not impose any sentence greater than the defendant was advised. See Craig, 986 P.2d at 964 (quoting People v. Baca, 179 Colo. 156, 158, 499 P.2d 317, 318 (1972)); cf. Hyde v. Hinton, 180 Colo. 324, 326, 505 P.2d 376 (1973) (providency hearing considered proper in light of sentenc......
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State v. Marez
...court does not impose any sentence greater than the defendant was advised. See Craig, 986 P.2d at 964 (quoting People v. Baca, 179 Colo. 156, 158, 499 P.2d 318, 318 (1972)); cf. Hyde v. Hinton, 180 Colo. 324, 326, 505 P.2d 376 (1973) (providency hearing considered proper in light of sentenc......