People v. Darlington

• Decision Date: 24 January 2005
• Docket Number: No. 04SA186.,04SA186.
• Citation: 105 P.3d 230
• Parties: In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Sally DARLINGTON.
• Court: Colorado Supreme Court

105 P.3d 230

In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Sally DARLINGTON.

No. 04SA186.

Supreme Court of Colorado, En Banc.

January 24, 2005.

David Hoerber, Deputy District Attorney, Fifth Judicial District Eagle, for Plaintiff.

Carol L. Curtis, P.C., Carol L. Curtis, Avon, for Defendant.

KOURLIS, Justice.

In this original proceeding under C.A.R. 21, we issued a rule directing the People to show cause why the Eagle County Court did not exceed its jurisdiction when it ruled that section 18-1.3-102(1), C.R.S. (2004) precluded the defendant, Sally Darlington, from entering a plea of nolo contendere to a criminal mischief charge on a deferred sentence. We now hold that the statute does not contravene the court's authority to consider nolo contendere pleas in circumstances involving plea agreements that contemplate deferred sentences. Accordingly, we make the Rule absolute and return the case to the county court for further proceedings consistent with this opinion.

I. Facts and Proceeding Below

On January 31, 2003, the defendant was charged with criminal mischief pursuant to section 18-4-501(1), C.R.S. (2004). The prosecution and Darlington entered into a written plea agreement pursuant to which Darlington would enter a plea of nolo contendere to misdemeanor criminal mischief subject to a two year deferred sentence, restitution in the amount of $360, and court costs and fines.

The parties presented the agreement to the Eagle County Court on May 15, 2004. The trial court refused to accept the plea on the basis that section 18-1.3-102(1), which deals with deferred sentencing, contains language that indicates it is triggered only by a guilty plea and not by a plea of nolo contendere. It is from this ruling that Darlington petitioned this court for relief under C.A.R. 21. Darlington argues that the trial court exceeded its jurisdiction by refusing to accept her plea of nolo contendere on the grounds that the statute does not permit it. The People do not object to allowing the defendant to enter a plea of nolo contendere in this case, and do not argue that the statute constrains the court in its consideration of such a plea.

II. Relief Pursuant to C.A.R. 21

We first address the propriety of an original proceeding as a procedural device for obtaining review of an order denying the defendant's nolo contendere plea.

Relief pursuant to C.A.R. 21 is an extraordinary remedy limited in purpose and in availability. People v. Dist. Court, 868 P.2d 400, 403 (Colo.1994); Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo.1992). The remedy may be sought "where the trial court has abused its discretion and where appellate remedy would not be adequate." Id. at 905. The granting of relief under C.A.R. 21 is entirely within this court's discretionary authority. White v. Dist. Court, 695 P.2d 1133, 1135 (Colo.1984); Coquina Oil Corp. v. Dist. Court, 623 P.2d 40, 41 (Colo.1981).

In the present case the Eagle County Court refused defendant's plea of nolo contendere to criminal mischief charges on deferred sentencing, requiring Darlington to enter a plea of guilty or proceed to trial. Under these circumstances we choose to exercise our discretion to address the issue presented.

III. Acceptance of Plea Agreements

Plea bargaining is an inescapable part of the judicial process. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Colorado has recognized its propriety by statute. §§ 16-7-301 to -303, C.R.S. (2004). A defendant may plead guilty, not guilty, not guilty by reason of insanity, or with the consent of the court, nolo contendere. § 16-7-205, C.R.S. (2004); Crim. P. 11(a). In exchange for a guilty plea or plea of nolo contendere, the district attorney may agree to sentence concessions, dismissal of charges, favorable sentencing recommendations or deferment. § 16-7-302.

While a defendant has no absolute right to have a plea accepted, Santobello, 404 U.S. at 261, 92 S.Ct. 495, it is clear that trial courts cannot reject a plea on an arbitrary basis. United States v. Delegal, 678 F.2d 47, 50 (7th Cir.1982); People v. Jasper, 17 P.3d 807, 812 (Colo.2001) ("Jasper II"). Rather, the court may reject a plea only in the exercise of sound judicial discretion. Santobello, 404 U.S. at 262, 92 S.Ct. 495.

We have held that the trial court is directed to exercise "independent judgment in deciding whether to grant charge and sentence concessions" in compliance with section 16-7-302 and Crim. P. 11. Jasper II, 17 P.3d at 812. We have developed standards through our case law that guide the trial courts in the exercise of that discretion.¹ The trial court must consider all relevant factors and articulate the reasons for rejecting an agreement on the record. See People v. Copenhaver, 21 P.3d 413 (Colo.App.2000)

; People v. Jasper, 984 P.2d 1185, 1187 (Colo.App.1999) ("Jasper I") rev'd on other grounds

17 P.3d 807 (Colo.2001). Furthermore, the court is to give the plea agreement due consideration before reaching a decision on whether to grant charging or sentencing concessions. People v. Jones, 176 Colo. 61, 70, 489 P.2d 596, 601 (1971); see also ABA Standards of Criminal Justice Relating to Guilty Pleas § 14-3.3 (1999).² Factors which the trial court may properly consider are timeliness of the plea agreement, the defendant's previous criminal history, and any pre-plea report or recommendation. Copenhaver, 21 P.3d at 417. Where the trial court clearly exercises independent judgment in rejecting the plea agreement and sets forth on the record its reasons for doing so, its ruling will not be set aside on appeal. Id. at 417. However, failure to exercise discretion is itself an abuse of discretion. Jasper, 984 P.2d at 1187.

IV. Plea of Nolo Contendere to Deferred Sentence

At issue here is whether the trial judge properly exercised his discretion in holding that section 18-1.3-102(1) precludes the entry of a nolo contendere plea on a deferred sentence. There is little case law discussing the acceptability of a nolo contendere plea, therefore, we begin by discussing the purpose and effect of the plea.

A. Nolo Contendere Plea

A nolo contendere plea, also called a no contest plea or plea non vult contendere, literally means "I do not wish to contend." Black's Law Dictionary 1074 (8th ed.2004). Nolo contendere is a common law plea. Hudson v. United States, 272 U.S. 451, 453, 47 S.Ct. 127, 71 L.Ed. 347 (1926); Young v. People, 53 Colo. 251, 125 P. 117 (1912). In its early form, the plea was considered an implied confession of guilt entered only with leave of the court in light misdemeanors. K.A. Drechsler, Annotation, Plea of nolo contendere or non vult contendere, 152 A.L.R. 253 (2004). In modern usage, a plea of nolo contendere is considered substantially, though not technically, a plea of guilty acceptable for a variety of offenses. Id. at 256-57.

The plea serves a practical function in the administration of justice. Id. at 295. A defendant may wish to plead nolo contendere simply because she does not want to contest her guilt or innocence for personal reasons. People v. Goodwin, 41 Colo.App. 23, 25, 582 P.2d 1065, 1067 (1978). A plea of nolo contendere also allows the parties to avoid the expense and delay of trial. Furthermore, the defendant is able to avoid the notoriety and publicity of a trial, problems with lack of witnesses, limit the maximum penalty to which she would be exposed at trial, and avoid estoppel in a subsequent civil proceeding. Drechsler, supra, at 295.

Nolo pleas may also be referred to as "Alford" pleas, originating from the United States Supreme Court decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). There, the Court held that a defendant could plead guilty while protesting his innocence — so long as his plea was constitutionally valid. Alford, 400 U.S. at 31, 91 S.Ct. 160; see also ABA Standards, supra, at § 14-1.1(a) commentary at 14. Thus, the nolo contendere plea may be a compromise plea that benefits both the defendant and the prosecutor.

B. Effect of a Nolo Contendere Plea in Colorado

Over half of the states recognize the plea of nolo contendere. In Colorado, the defendant "may plead guilty, not guilty ..., or with the consent of the court, nolo contendere." Crim. P. 11; see also § 16-7-205, C.R.S. (2004). We have held that, for the purpose of a criminal case, a plea of nolo contendere is fully equivalent to a plea of guilty. See People v. Birdsong, 958 P.2d 1124, 1127 (Colo.1998)

; Jones, 196 Colo. at 264, 584 P.2d at 84; People v. Carpenter, 709 P.2d 72, 73 (Colo.App.1985). The sole distinction we have made between a guilty plea and a plea of nolo contendere is that the latter gives the defendant the advantage of not being estopped from denying her fault in a civil action based upon the same facts. Jones, 196 Colo. at 264, 584 P.2d at 83. Where the defendant knowingly, voluntarily, and understandingly pleads nolo contendere she may be punished just as if she had entered a plea of guilty. See Alford, 400 U.S. at 36 n. 8,

91 S.Ct. 160; Meier v. People, 133 Colo. 338, 340, 296 P.2d 232, 233 (1956); Young, 53 Colo. at 253, 125 P. at 118. Therefore, there is no distinction between a plea of nolo contendere and a plea of guilty for sentencing purposes. People v. Canino, 181 Colo. 207, 210, 508 P.2d 1273, 1274 (1973); see also ABA Standards 14-1.1 commentary (judge may impose the same sentence as if defendant had pleaded guilty). Thus, we have allowed nolo contendere pleas liberally and have treated them as guilty pleas for all purposes.

Once the court has accepted the plea, it is equivalent to a plea of guilty and the court's power to punish is in no way limited except as provided by law. Drechsler, supra, at 277. We have not addressed the question of whether a nolo contendere plea is acceptable under the deferred sentencing statute. Therefore, we must now consider whether section 18-1.3-102 precludes the...