People v. Chippewa

• Decision Date: 08 February 1988
• Docket Number: No. 85SC296,85SC296
• Citation: 751 P.2d 607
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Thomas CHIPPEWA, Respondent.
• Court: Colorado Supreme Court

Page 607

751 P.2d 607

The PEOPLE of the State of Colorado, Petitioner, v. Thomas CHIPPEWA, Respondent.

No. 85SC296.

Supreme Court of Colorado En Banc.

Feb. 8, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

David F. Vela, State Public Defender, Claire Levy, Jonathan S. Willett, Deputy State Public Defenders, Denver, for respondent.

LOHR, Justice.

We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Chippewa, 713 P.2d 1311 (Colo.App.1985), which held that the district court erred in denying the defendant's motion to withdraw his plea of guilty to attempted first-degree murder. The court of appeals held that the plea had not been entered knowingly and voluntarily as required by due process of law because the district court had given the defendant erroneous information concerning the possible minimum sentence. The court had advised the defendant of the minimum sentence available for attempted first-degree murder in the absence of extraordinary aggravating circumstances rather than the higher minimum sentence applicable to the defendant, who was on parole when he committed the crime. We granted certiorari and now affirm the judgment of the court of appeals. We base our decision, however, on the conclusion that the trial court abused its discretion in refusing to permit withdrawal of the plea. We therefore find it unnecessary to reach the question of whether the defendant's plea was entered knowingly and voluntarily consistent with due process of law, and we express no opinion on that question.

I.

The defendant, Thomas Chippewa, was charged in Arapahoe County District Court with two counts of attempted first-degree murder, two counts of first-degree assault, one count each of first-degree burglary aggravated robbery, conspiracy, and commission of a violent crime, and two counts of habitual criminality. ¹ In exchange for the defendant's guilty plea to a single charge of attempted first-degree murder, a class two felony, the People agreed to dismiss all other charges, and reserved the right to recommend a sentence of sixteen years imprisonment.

At the providency hearing on August 3, 1983, the district court questioned counsel for the defense and the prosecution to ascertain whether the defendant was subject to a mandatory aggravated sentence under section 18-1-105, 8B C.R.S. (1986). The attorneys agreed that the defendant was eligible for sentencing in the presumptive range. ² The court then advised the defendant that the presumptive range of sentencing for the crime to which he was pleading guilty was eight to twelve years. The court also stated that if it found extraordinary mitigating circumstances, the sentence could be as low as four years, and if it found extraordinary aggravating circumstances, the sentence could be as high as twenty-four years. The district court found that the defendant understood the penalty range, the elements of the offense and the rights he was waiving. The court accepted the guilty plea, ordered a presentence investigation, and set a date for a sentencing hearing.

The presentence report, dated October 18, 1983, showed that the defendant was on parole from a North Dakota sentence for manslaughter when he committed the felony to which he pled guilty. Because of the defendant's parole status, the district court was required to impose a sentence in the extraordinary aggravated range under the mandatory sentencing statute. § 18-1-105(9)(a)(II), 8B C.R.S. (1986). ³ Prior to sentencing, the defendant moved to withdraw his guilty plea, alleging that he would not have agreed to the plea bargain had he known of the statutory requirement for a mandatory sentence beyond the presumptive range. On November 4, 1983, the court denied the defendant's motion ⁴ and sentenced him to eighteen years imprisonment.

The defendant appealed the district court's refusal to allow him to withdraw his plea. The court of appeals reversed the defendant's conviction on the basis that the district court's failure to inform him of the effect of his parole status on the applicable minimum sentence meant that the defendant did not have the requisite knowledge of the consequences of his plea. The court of appeals concluded therefore that the plea was not entered knowingly and voluntarily as required by due process of law. The court remanded the case to the district court with directions to vacate the guilty plea, reinstate the original charges, and allow the defendant to enter his plea to those charges. The People sought certiorari review of the court of appeals' decision.

We granted certiorari and issued an opinion on June 8, 1987, affirming the judgment of the court of appeals. We concluded that the court of appeals was correct in holding that the defendant's plea was not made knowingly and voluntarily, and we held as well that the trial court abused its discretion in denying the defendant's motion to withdraw the plea. The People petitioned for rehearing, and we granted that petition. We now conclude that the trial court abused its discretion in refusing to permit the defendant to withdraw his plea and that it is unnecessary to reach the constitutional question of whether the defendant's plea was knowingly and voluntarily entered as required by due process of law. We therefore withdraw our original opinion and issue this one in its stead.

II.

Crim.P. 32(d) provides for a motion to withdraw a plea of guilty before sentence is imposed. To warrant the withdrawal of a guilty plea before the imposition of sentence, a defendant has the burden of establishing a "fair and just reason" for the withdrawal. People v. Gutierrez, 622 P.2d 547, 559 (Colo.1981); People v. Martinez, 188 Colo. 169, 172, 533 P.2d 926, 928 (1975). See III ABA Standards for Criminal Justice § 14-2.1(a) (2d ed. 1980) ("before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea"). A motion to withdraw a plea of guilty is addressed to the sound discretion of the court. People v. Gutierrez, 622 P.2d at 559; People v. Martinez, 188 Colo. at 172, 533 P.2d at 928; People v. Riley, 187 Colo. 262, 265, 529 P.2d 1312, 1313 (1975); Maes v. People, 155 Colo. 570, 574, 396 P.2d 457, 459 (1964). We will not overturn the denial of a motion to withdraw a guilty plea unless the trial court abused that discretion. People v. Gutierrez, 622 P.2d at 559; People v. Martinez, 188 Colo. at 172, 533 P.2d at 928; People v. Riley, 187 Colo. at 265, 529 P.2d at 1313; Maes v. People, 155 Colo. at 574, 396 P.2d at 459.

Prior to accepting the defendant's plea of guilty to attempted first-degree murder, the trial court conducted an extensive providency hearing. At that hearing the court explained the possible sentences in detail, as well summarized by the court of appeals:

Addressing the penalties and consequences of defendant's plea, the trial court advised him that: (1) he could presume that the sentence would be within the range of eight to twelve years; (2) if the trial court found mitigation, the sentence could be as low as four years; (3) if the trial court found extraordinary aggravating circumstances, the sentence could be as high as twenty-four years; and (4) despite the People's intent to seek an aggravated sentence of up to sixteen years and defense counsel's attempt to persuade the court to impose a sentence within the presumptive range, the sentence to be imposed was within the court's sole discretion.

People v. Chippewa, 713 P.2d at 1313. ⁵

The trial judge was unaware at the time of entry of the plea that the defendant had been on parole when the offense was committed and that, therefore, a sentence in the aggravated range was mandated by statute. See § 18-1-105(9)(a)(II), 8B C.R.S. (1986). The responses of the prosecution and defense counsel to questions by the judge indicate that they as well were unaware of the defendant's parole status. The defendant was therefore specifically advised by the court that it could impose a sentence within the eight to twelve years presumptive range and if the court found mitigating circumstances, the sentence could be as low as four years imprisonment. There is nothing in the record to suggest that the defendant, at the time he entered his plea, had been advised or was aware that a sentence in the aggravated range was mandated because of his parole status. Indeed, all indications in the record are to the contrary. Cf. People v. Alexander, 724 P.2d 1304, 1308-09 (Colo.1986) (defendant who is subject to sentence in aggravated range because he was on parole at time of commission of felony is entitled to reasonable notice and to require the prosecution to prove his parole status); People v. Lacey, 723 P.2d 111, 113 (Colo.1986) (same, when extraordinary aggravating circumstance is status as a probationer at time of commission of felony).

The district court's advisement that the sentence could be as little as four years and that the defendant could presume that his sentence would be in the eight to twelve year range gave the defendant every reason to believe that he could receive a sentence that he was ineligible to receive. The People argue, however, that this misinformation did not prejudice the defendant because the court in fact imposed a sentence of eighteen years. The People assert that a court should allow withdrawal of a plea before sentencing only if the trial court would be precluded by a higher mandatory minimum sentence requirement from imposing a sentence that it otherwise would consider appropriate. By imposing a sentence six years greater than that required by the statute, the court here, according to the People, demonstrated that its exercise of discretion at the lower...