People v. Corral, No. 05CA1979.

Docket NºNo. 05CA1979.
Citation174 P.3d 837
Case DateAugust 09, 2007
CourtCourt of Appeals of Colorado
174 P.3d 837
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Henry CORRAL, Defendant-Appellant.
No. 05CA1979.
Colorado Court of Appeals, Div. I.
August 9, 2007.

[174 P.3d 838]

John W. Suthers, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Samuel Santistevan, Deputy State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.


Defendant, Henry Corral, appeals the sentence imposed after he pled guilty to one count of escape. We vacate the sentence and remand for further proceedings as to the plea.

The principal issues in this case are whether Corral was properly advised of the possibility of an aggravated sentence and, for purposes of the escape sentencing statute, whether Corral was serving a sentence on another offense at the time he escaped, where he had pled guilty to the other offense but was awaiting sentencing.

In 2002, Corral had pled guilty to a manslaughter charge in Morgan County and was awaiting sentencing when he escaped from the custody of the Adams County Detention Facility. Two years later, he was apprehended and charged with felony escape. He was sentenced to six years in the custody of the Department of Corrections (DOC) on the manslaughter conviction and reached a plea disposition on the escape charge.

At the providency hearing on the escape plea, the court stated that the sentence for that offense must be imposed consecutively to the manslaughter sentence, and advised Corral that the potential sentence range was between two and six years in the custody of the DOC. The court did not advise Corral of the possibility of an aggravated range sentence, and no written plea advisement appears in the record.

A different judge presided over Corral's sentencing, and a different prosecutor appeared. The court found that Corral's prior criminality was an aggravating factor and, upon the prosecutor's request, sentenced him to twelve years in the custody of the DOC, the maximum in the aggravated range, to be served consecutively to the manslaughter sentence.

I. Improper Advisement

Corral argues, the People concede, and we agree that the trial court violated Corral's right to due process by imposing a sentence in the aggravated range when he was only advised of the possibility of a sentence in the

174 P.3d 839

presumptive range at the providency hearing.

A. Knowing and Voluntary Plea

To satisfy the requirements of due process, the record as a whole must show that the defendant entered his or her guilty plea knowingly and voluntarily. People v. Gresl, 89 P.3d 499, 502 (Colo.App.2003). Prior to accepting a guilty plea, a trial court must ensure that the defendant was advised of the direct consequences of the plea, including the possible sentencing range. Crim. P. 11(b)(4); People v. Gresl, supra, 89 P.3d at 502.

Here, Corral pled guilty to class four felony escape, for which the presumptive sentencing range of imprisonment is between two and six years in the custody of the DOC. Sections 18-1.3-401(1)(a)(V)(A), 18-8-208(3), C.R.S.2006. However, a defendant may receive an aggravated range sentence for a conviction for this offense of up to twelve years in the custody of the DOC, if the sentencing court concludes there are extraordinary aggravating circumstances. Section 18-1.3-401(1)(a)(V)(A), (6), C.R.S.2006.

At the providency hearing, the trial court advised Corral that his potential sentence of imprisonment was between two and six years. The prosecutor did not object to that statement of law or attempt to clarify that Corral could be sentenced in the aggravated range. As noted, at the sentencing hearing, a different prosecutor asked the court to impose a sentence in the aggravated range, and the court sentenced Corral to twelve years in the custody of the DOC, the maximum of the aggravated range. Because Corral was not advised of the possibility of a twelve-year aggravated range sentence, this sentence violated his right to due process.

B. Remedy

Corral asserts, and the People concede, that the proper remedy for this error is to remand the case for sentencing based upon the providency hearing advisement that Corral would be sentenced within the presumptive range. We disagree. See People v. Backus, 952 P.2d 846, 850 (Colo.App.1998)(appellate court is not bound by a party's concessions).

Generally, if a plea is not knowing and intelligent, the conviction is not valid, and the court must vacate the plea. People v. Cabral, 698 P.2d 234, 236 (Colo.1985); People v. Peters, 738 P.2d 395, 396 (Colo.App. 1987).

However, in some circumstances, the appropriate remedy is to remand to allow the defendant to withdraw or affirm his or her plea based upon a proper advisement. See People v. Walker, 46 P.3d 495, 497 (Colo.App. 2002)(if court decides not to grant sentence concessions contemplated by plea agreement, it must so advise defendant and give defendant the opportunity to affirm or withdraw the plea of guilty).

Here, because Corral does not seek to...

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6 practice notes
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...CO 1, 478 P.3d 713 ; People v. Carter , 2015 COA 36, ¶ 65 n.1, 414 P.3d 15 (J. Jones, J., specially concurring) (same); People v. Corral , 174 P.3d 837, 839 (Colo. App. 2007) (an appellate court isn't bound by the parties’ agreement as to the appropriate remedy for an error); see also Commo......
  • People v. Wilder, Court of Appeals No. 12CA0066
    • United States
    • Colorado Court of Appeals of Colorado
    • February 26, 2015
    ...Notwithstanding the People's concession, I write separately to explain why I believe Miller applies retroactively. See People v. Corral , 174 P.3d 837, 839 (Colo. App. 2007) (appellate court is not bound by a party's concessions).¶ 60 In Edwards v. People, 129 P.3d 977, 983 (Colo. 2006), th......
  • People v. Carter, Court of Appeals No. 10CA1993
    • United States
    • Colorado Court of Appeals of Colorado
    • April 9, 2015
    ...To the extent this ambiguous passage is intended as a concession regarding preservation, we are not bound by it. People v. Corral, 174 P.3d 837, 839 (Colo.App.2007) ; People v. Backus, 952 P.2d 846, 850...
  • People v. Sabell, Court of Appeals No. 15CA0867
    • United States
    • Colorado Court of Appeals of Colorado
    • June 14, 2018
    ...affirmative defense. See also COLJI–Crim. H:35 cmt. 3.5 As the People note, we are not bound by their concessions. See People v. Corral , 174 P.3d 837, 839 (Colo. App....
  • Request a trial to view additional results
6 cases
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...CO 1, 478 P.3d 713 ; People v. Carter , 2015 COA 36, ¶ 65 n.1, 414 P.3d 15 (J. Jones, J., specially concurring) (same); People v. Corral , 174 P.3d 837, 839 (Colo. App. 2007) (an appellate court isn't bound by the parties’ agreement as to the appropriate remedy for an error); see also Commo......
  • People v. Wilder, Court of Appeals No. 12CA0066
    • United States
    • Colorado Court of Appeals of Colorado
    • February 26, 2015
    ...Notwithstanding the People's concession, I write separately to explain why I believe Miller applies retroactively. See People v. Corral , 174 P.3d 837, 839 (Colo. App. 2007) (appellate court is not bound by a party's concessions).¶ 60 In Edwards v. People, 129 P.3d 977, 983 (Colo. 2006), th......
  • People v. Carter, Court of Appeals No. 10CA1993
    • United States
    • Colorado Court of Appeals of Colorado
    • April 9, 2015
    ...To the extent this ambiguous passage is intended as a concession regarding preservation, we are not bound by it. People v. Corral, 174 P.3d 837, 839 (Colo.App.2007) ; People v. Backus, 952 P.2d 846, 850...
  • People v. Sabell, Court of Appeals No. 15CA0867
    • United States
    • Colorado Court of Appeals of Colorado
    • June 14, 2018
    ...affirmative defense. See also COLJI–Crim. H:35 cmt. 3.5 As the People note, we are not bound by their concessions. See People v. Corral , 174 P.3d 837, 839 (Colo. App....
  • Request a trial to view additional results

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