People v. Finney

• Decision Date: 15 March 2012
• Docket Number: No. 09CA1949.,09CA1949.
• Citation: 328 P.3d 205
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Dallas Jeffrey FINNEY, Defendant–Appellant.
• Court: Colorado Court of Appeals

328 P.3d 205

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Dallas Jeffrey FINNEY, Defendant–Appellant.

No. 09CA1949.

Colorado Court of Appeals, Div. VII.

March 15, 2012.

John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge BERNARD.

¶ 1 Section 18–1.3–102(1), C.R.S.2011, allows the prosecution and the defendant to agree, with the approval of the court, to defer the judgment and sentence in a criminal case after a defendant has entered a guilty plea. As is the case with all guilty pleas, the court must advise the defendant of the potential penalties for the offense. This is important because the defendant may face those penalties if the conditions of the deferred judgment agreement are not honored and the court revokes the agreement.

¶ 2 This appeal involves, among other things, an issue that arises out of the procedures employed when revoking a deferred judgment agreement. Our supreme court has held that a statute requires a court to inform a defendant in such circumstances of the possible penalties he or she may face. We are now asked to determine whether Crim. P. 11 independently requires such an advisement in a case, such as this one, in which the defendant has expressly waived a formal advisement and in which the defendant was repeatedly informed of the potential penalties. We conclude that Crim. P. 11 does not apply under these circumstances. As a result, we affirm the trial court's decision to deny defendant's postconviction motions, and we remand for correction of the mittimus only.

I. Background

¶ 3 In 2003, defendant, Dallas Jeffrey Finney, was charged with three counts of class three felony sexual assault and three counts of class four felony sexual assault. This case has a lengthy and complicated procedural history, including the involvement of five different judges. We provide a chart for the reader's convenience at the end of this background section that briefly describes, in chronological order, what each judge did.

¶ 4 In July 2004, defendant entered into a plea disposition, in which he would plead guilty to one of the class four felony sexual assaults before the first judge. The sentence and judgment for that offense would be deferred for four years, and defendant would be supervised by the probation department. If he satisfied the conditions of the agreement for four years, he would be allowed to withdraw his guilty plea and all charges against him would be dismissed.

¶ 5 The written plea advisement, which defendant signed, stated that the penalties for the offense were “2 years to life imprisonment ... with mandatory 3 years parole.” The first judge presided over the entry of the guilty plea. During the colloquy concerning the plea, defendant stated that he had read the written advisement, and that he understood it. The first judge also informed him that the possible penalties for the offense were “a [prison] sentence of from two years to life imprisonment ... [and] a three year mandatory period of parole.”

¶ 6 In August 2004, the probation department prepared a presentence report. It stated that the possible penalties for the offense were “2 years to lifetime imprisonment” and recommended that the judgment be deferred.

¶ 7 In September 2004, defendant appeared for sentencing before the second judge. The second judge stated that he would not accept the plea agreement. Defendant withdrew his guilty plea, and the case was reset for trial.

¶ 8 In November 2004, defendant filed a motion to enforce the original plea disposition agreement, which was heard by a third judge. The third judge denied the motion. Defendant then entered into a second deferred judgment agreement. This one required him to plead guilty to one count of class four felony sexual assault, plus one count of class three misdemeanor harassment. Judgment and sentence on the felony would be deferred, but the conviction on the misdemeanor would remain on his record.

¶ 9 The third judge advised defendant of the possible penalties for the felony, which he described as a maximum of life imprisonment, “plus three years of mandatory parole.” Defendant said he understood the possible penalties. When asked whether he wished to plead guilty “[k]nowing the possible penalties and places of confinement,” defendant responded, “Yes.”

¶ 10 The third judge accepted the deferred judgment agreement, and then asked defendant if he wished to make a statement “in mitigation [of the] offense.” Defendant stated that he did not commit the crime. Based on this statement, the third judge then refused to accept the plea. After consulting with plea counsel, defendant decided that he did not wish to accept the plea agreement, and so the case was set for trial.

¶ 11 Defendant entered a third guilty plea before a fourth judge in February 2005. He pled guilty to one count of class four felony sexual assault and one count of class one misdemeanor third degree assault. The conditions of the agreement included deferring judgment for four years for the felony; requiring him to serve ninety days in jail; putting him under the supervisory authority of the probation department; ordering him to submit to sex offender testing and treatment; and placing him on probation for two years for the misdemeanor, to be served concurrently with the period of deferred judgment on the felony.

¶ 12 When defendant entered this guilty plea, the fourth judge advised him that the penalty for the class four felony was two years to life imprisonment, plus three years of mandatory parole. Although the written plea agreement that defendant signed contained the same information, defendant also signed supplemental attached paperwork stating that the mandatory period of parole was ten years to life. When the court asked him whether he understood that “those penalties would not apply unless [he] violated” the deferred judgment agreement, defendant replied that he did.

¶ 13 In response to questions from the court, defendant stated that he had read the written agreement; plea counsel had explained it to him; he understood it; he understood the alternatives he had to entering into the agreement; there were no additional promises or commitments that were not included in the written agreement; he was satisfied with plea counsel's representation; no one had coerced him to accept the agreement; and the decision to accept the agreement had been his alone.

¶ 14 In June 2008, the prosecution moved to revoke the deferred judgment agreement. The complaint from the probation department alleged that defendant had violated one of the agreement's conditions because the organization that was providing him sexual assault-specific treatment had terminated him from its program.

¶ 15 Appearing before the second judge in early August 2008, plea counsel waived any advisement and requested a continuance “to explore [defendant's] options.” At the end of August 2008, plea counsel appeared before the second judge and waived any further advisement on the complaint and requested a dispositional hearing. Defendant attended both hearings at which these statements were made.

¶ 16 In September 2008, defendant appeared before the second judge and admitted that he had violated the deferred judgment agreement. He stated that no one had coerced him into making this admission; he had enough time to discuss the admission with his attorney; he was satisfied with plea counsel's advice; and he understood that the court would not be bound by any sentencing recommendations that the prosecutor might make.

¶ 17 The prosecutor stated that she would make a sentencing recommendation if a conditionwere satisfied. She told the court that, according to plea counsel, the probation department would recommend that defendant be placed in a community corrections facility if one agreed to accept him. She said that she would “go along” with such a placement if the facility accepted defendant.

¶ 18 In December 2008, plea counsel and defendant appeared before a fifth judge for sentencing. Plea counsel requested that the court continue the sentencing hearing for thirty days. He stated that the community corrections facility had rejected defendant, and plea counsel wanted additional time “to see if [they] could get him in there.” He told the court:

[Y]our sentence is mandated at two [years] to life [by the deferred judgment agreement]. I don't know what I can say to this court to mitigate it. This is a sentence basically sentencing this man to life in prison, and we asked for a 30–day continuance to go over the pre-sentence report with him, and that's what I'm asking the court once again to do.

¶ 19 When asked if he wished to address the court before it imposed sentence, defendant stated that he felt he had complied with the conditions of the deferred judgment agreement. He added that he found out two days before Thanksgiving that the community corrections facility had rejected him, and “[N]ow I'm going to go to prison for the rest of my life.”

¶ 20 The parties and the court had been supplied with an updated probation report. It stated that, because the deferred judgment agreement had been revoked, the possible penalties were a prison sentence of two years to life, “a mandatory 3 year period of parole,” and a fine.

¶ 21 The fifth judge denied the request for a continuance, and imposed the prison sentence—two years to life—that was contained in the deferred judgment agreement.

¶ 22 Defendant filed postconviction motions in which he contended that (1) the second judge denied him due process by not advising him, before he admitted violating the conditions of the deferred judgment agreement, that he faced a sentence of two years to life imprisonment; (2) the fifth judge denied him his rights to due...