People v. Breazeale

• Decision Date: 08 December 1975
• Docket Number: No. 26299,26299
• Citation: 190 Colo. 17,544 P.2d 970
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jay Dee BREAZEALE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 970

544 P.2d 970

190 Colo. 17

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jay Dee BREAZEALE, Defendant-Appellant.

No. 26299.

Supreme Court of Colorado, En Banc.

Dec. 8, 1975.

Rehearing Denied Feb. 9, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy State Atty. Gen., Edward G. Donovan, Solicitor Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Hackethal, McNeill & Aucoin, P.C., Lakewood, Kokish, Garner & Rubner, John A. Burns, Denver, for defendant-appellant.

GROVES, Justice.

The defendant was charged under twelve counts, being two charges of rape, six charges of deviate sexual intercourse by force, two charges of menacing, one charge of first-degree kidnapping and one charge of feloniously entering and remaining in an occupied building with intent to commit sexual assault. Allegedly, there were nine female victims. The crimes were alleged to have been committed between the dates of August 31, 1972 and November 10, 1972. The defendant entered pleas of not guilty by reason of insanity and later raised the question as to his competency to stand trial. A competency hearing was held and he was found competent to stand trial. Thereafter he pled guilty to two counts of rape and one count of deviate sexual intercourse by force (sections 18--3--401 and 403, C.R.S.1973), and moved for sentencing under the Colorado Sex Offender's Act (section 16--13--201 Et seq., C.R.S.1973).

Proceedings were commenced under the Sex Offender's Act and, upon motion of the district attorney, the other nine counts were ordered dismissed. After receipt of reports from two court-appointed psychiatrists and a probation officer, the court terminated the proceedings under the Sex Offender's Act and sentenced the defendant to a term of not less than 20 years nor more than 35 years on each of the three counts, to be served concurrently. We affirm.

We think our further statement of the matters transpiring in the district court will be more meaningful if preceded by a statement of the issues. Accordingly, we now list the defendant's contentions which constitute the issues here:

I. In accepting the pleas of guilty, the court failed to comply with C.R.C.P. 11 in the following particulars: (1) the defendant did not understand the nature of the charge; (2) the defendant was confused; (3) the defendant believed he had entered pleas upon the condition that he be sentenced under the Sex Offender's Act; (4) the court erroneously advised the defendant that he was not eligible to be sent to the state reformatory; and (5) there is 'a serious question as to whether the pleas entered by the Defendant were voluntarily on his part and not the result of undue influence or coercion on the part of anyone.'

II. Section 16--13--209, C.R.S.1973 provides:

'After reviewing the reports of the psychiatrists and the probation officer, the court may terminate proceedings under this part 2 and proceed with sentencing as otherwise provided by law.'

This statute is unconstitutional in that it deprives the defendant of due process of law.

III. Assuming that the statute last mentioned is constitutional, in light of the reports before it, the court abused its discretion in terminating the proceedings.

IV. A person sentenced under the Sex Offender's Act must be committed to the custody of the Colorado Department of Institutions for an indeterminate term for a minimum of one day and a maximum of his natural life; and one of the conditions of sentencing under this Act is a finding by the court 'that the defendant, if at large, constitutes a threat of bodily harm to members of the public . . ..' §§ 16--13--203 and 211(2), C.R.S.1973. If the court, upon remand for an evidentiary hearing, finds that the defendant if at large constitutes such a threat, he must be committed under the Sex Offender's Act.

V. Each of the three crimes to which the defendant pled guilty are classified as class 3 felonies in the statutes above cited. Class 3 felonies have a penalty of not less than 5 years nor more than 40 years imprisonment. The district court committed error in that, without sufficient grounds, it sentenced the defendant to a minimum sentence more than 3 years greater than the minimum sentence provided by law.

After the defendant entered his insanity plea, the court appointed two psychiatrists, Dr. Frederick M. Miller and Dr. R. Robert Cohen, to examine the defendant and make reports. They, and a psychiatrist retained by the defendant, submitted their reports, each of which expressed the opinion that the defendant was legally sane at the time of the alleged commission of offenses.

After the defendant raised the competency issue and the matter was referred to another district judge for hearing in that particular, that judge appointed Dr. Miller to examine the defendant and report. Dr. Miller reported that the defendant was competent to stand trial, and the judge so ruled.

Thereafter on May 1, 1973, the defendant and his counsel, as well as a deputy district attorney, appeared in open court. Counsel mentioned that it had been ruled that the defendant was competent to stand trial, and that the defendant was ready to enter pleas. The court noted that a day or two previously counsel had mentioned that pleas were being entered under the Sex Offender's Act. Commencing at that point the transcript reads as follows:

'THE COURT: When you say you mentioned the Sex Offenders Act, I want the record to clearly reflect that the Court will consider evidence of sentencing under that, but the Court will in no way indicate or promise especially that it will sentence under the Sex Offenders Act. The Court may very well sentence under the criminal statute, which means confinement in the State Penitentiary. I will make no--I have never made any indication to you, (Counsel for the defendant), that I would sentence him under the Sex Offenders Act, have I?

'(COUNSEL): Certainly not.

'THE COURT: I surely want him to understand he may not get sentenced that way. He may be sentenced to the State Penitentiary, or he may, based on the evidence, if I feel appropriate, obviously I will do what I feel is appropriate, it's possible he could be--

'(COUNSEL): As to place of incarceration, I believe in reading the statute it would be the same. He would be committed to the Department of Institutions.

'THE COURT: But it would be for an indeterminate period.

'(PROSECUTOR): One day to life.

'THE COURT: The Court may enter a sentence of specific years to the Penitentiary.

'(COUNSEL): Your Honor, quite frankly, in my discussions with (the prosecutor) and Mr. Breazeale, it was our understanding, and I could have been in error--might be my fault--that specifically the understanding was the Court never made any commitment. It was never discussed with the Court that the sentencing would be under the Sex Offenders Act in this instance. I briefly discussed it with (the prosecutor) this morning on the phone. This is the first time this came up to Mr. Breazeale's knowledge and to mine. It would be a little contrary to our earlier understandings. I am not saying that would necessarily negate the plea.

'THE COURT: I think we shouldn't enter a plea today then.

'(PROSECUTOR): I agree, Your Honor.

'THE COURT: I want this thoroughly understood. I am not about to make any promise that he be sentenced under the Sex Offenders Act, and as a matter of fact, these two psychiatrists' reports are not too encouraging under a sentence of that kind. They say he has little chance of rehabilitation. I would want to listen to the evidence. Maybe it would be appropriate after I considered it all, but I don't want him to be under the impression there was any promise of that.

'(COUNSEL): That is certainly not the case. I don't think Mr. Breazeale feels that way.'

It was agreed that the matter stand continued to May 7, 1973.

On May 7, 1973 the defendant, his attorney and two deputy district attorneys appeared before the court. The defendant's counsel made a statement from which we infer that, prior to the May 1st hearing, there was an agreement with the district attorney's office whereby the defendant would enter the three pleas of guilty and be sentenced under the Sex Offender's Act. In any event at the May 7th hearing, counsel stated that, following the May 1st hearing, the district attorney's office maintained that it would take no position with respect to sentencing. Counsel stated that he had discussed these matters with the defendant, at which juncture the transcript continues:

'(W)e would at this time, Your Honor, ask to be rearraigned on those two counts--three counts, with the understanding if the pleas were tendered, it would be contingent on the understanding it would be under the Sex Offenders Act.

'THE COURT: I don't understand you. I have told you that the Sex Offenders Act has nothing to do with your pleading and there is no indication whatever he is going to be sentenced under it. He may be, and he may not be, depending upon all other factors after the plea--after a plea or guilty verdict.'

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'It doesn't have anything to do with the plea. The Court can't promise in plea bargaining to sentence him under that, and I made it abundantly clear--so clear in fact that I thought I might have bent over backward in trying to make it clear insounding extremely harsh. I don't want to sound harsh. Just because I make it clear, I am not guaranteeing any kind of sentence here--any leniency or harshness--any kind of sentencing. I keep reaffirming it, and it's going to be in the record so many times. I don't want him to enter any plea under any understanding . . ..'

The three counts were read to the defendant and, after the reading of each one, the defendant entered a plea of guilty. Counsel for the defendant then stated:

'I would further indicate for the record there is a factual basis for all of these pleas.'

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