People v. Fleming, 88SA134
| Decision Date | 30 October 1989 |
| Docket Number | No. 88SA134,88SA134 |
| Citation | 781 P.2d 1384 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dale FLEMING, Defendant-Appellee. |
| Court | Colorado Supreme Court |
James F. Smith, Dist. Atty., and Michael J. Milne, Deputy Dist. Atty., Brighton, for plaintiff-appellant.
Varallo, Abbott & Dugan, P.C., Michael A. Varallo, Greeley, for defendant-appellee.
An Adams County District Court order dismissed the charge against defendant, Dale Lee Fleming, after trial, on the ground that the prior convictions which formed the bases for the charge were obtained in an unconstitutional manner. The People appeal. 1 Because the defendant failed to present a prima facie case that his underlying convictions were unconstitutional, we reverse and remand to the district court for reinstatement of defendant's conviction.
Defendant was charged with a class 5 felony, driving after revocation prohibited, contrary to section 42-2-206, 17 C.R.S. (1984), in Adams County Criminal Action No. 86CR0941. The charge was based on an allegation that defendant operated a motor vehicle after his driver's license had been revoked by the Colorado Department of Motor Vehicles, upon a finding that the defendant was a habitual traffic offender. Defendant's habitual traffic offender status was predicated on his conviction for three alcohol related traffic offenses within a seven-year period. These convictions include: (1) People v. Fleming, Morgan County Case No. 81T1392, in which defendant entered a guilty plea to the offense of driving while ability impaired by alcohol; 2 (2) People v. Fleming, Morgan County Case No. 82T0984, in which defendant entered a guilty plea to the charge of driving under the influence of intoxicating liquor; 3 (3) People v. Fleming, Morgan County Case No. 84T1770, in which defendant entered a plea of guilty to the offense of driving a vehicle while ability impaired by alcohol. 4
Prior to trial, defendant moved to dismiss on the grounds that the three traffic convictions which form the basis of the current charge were unconstitutionally obtained. In a hearing before Judge Oyer G. Leary, defendant contended that he had not been properly advised of his rights in the prior proceedings, pursuant to Crim.P. 5 and 11, and thus his prior convictions were constitutionally infirm. In support of this contention, he presented the following evidence: (1) a letter from the Morgan County Court Clerk which stated that a recording of the proceedings in Case No. 81T1392 could not be located, and the recording of the proceedings in Case No. 82T0984 had been erased; (2) the register of actions in Case No. 81T1392, which indicated that defendant appeared pro se, and did not appear for his preliminary hearing because of car trouble, and which showed that the box next to the words "advised of rights, nature of charges, possible penalties" was not checked; (3) the register of actions in Case No. 82T0984, which indicated that defendant was represented by counsel but also showed a check mark in the box next to the words "pro se," and which contained no check mark in the box next to the advisement category; (4) the register of actions in Case No. 84T1770, which indicated that defendant was represented by counsel, but that the box next to the advisement category was not checked; and (5) a printed Crim.P. 11 advisement form, signed by defendant in Case No. 84T1770, and a transcript of the plea and advisement in that case.
Concerning Case No. 81T1392, defendant testified that he did not remember whether he was represented by an attorney or whether he was advised by the court that he had a right to counsel. He also did not remember whether the court advised him as to his Crim.P. 5 rights, or whether the court informed him as to the nature of the charges to which he was pleading guilty. Regarding Case No. 82T0984, the defendant testified that he did not remember whether the court advised him of his Crim.P. 5 rights; whether the court made any determination that defendant understood the nature of the charges and the possible penalties; whether the court determined that the plea was voluntary; or whether the court determined that he understood his right to a trial by jury. Finally, the defendant testified that although he signed the written Crim.P. 11 advisement in Case No. 84T1770, he did not remember whether the judge reviewed that form with him.
The People called, as a witness, Judge Edgar L. Brandenburg, the judge who accepted the guilty pleas from the defendant in all three of the prior convictions. Judge Brandenburg testified that, although he could not remember the specific details of defendant's cases, he always followed a consistent set of procedures in his courtroom. These procedures included a complete advisement of Crim.P. 5 rights at the preliminary hearing stage, and a Crim.P. 11 advisement when he took a defendant's plea. Judge Brandenburg testified that a defendant not present at the preliminary hearing would be advised as to his Crim.P. 5 rights at his next appearance. After examining the court documents, Judge Brandenburg testified that he had no reason to believe that he deviated from his standard practice and procedure in the defendant's cases, and that there was no doubt in his mind that the defendant had been properly advised on each occasion. He also indicated that there was at least one error on the register of actions in that defendant was represented by an attorney in Case No. 82T0984, and thus the "pro se" box should not have been checked. Finally, the judge testified that he never accepted a plea without advising a defendant as to his rights.
Based on the evidence, Judge Leary found that the prosecution had proved the constitutionality of defendant's convictions by a preponderance of the evidence. He denied the motion to dismiss and set the case for trial. Subsequently, Judge Leary retired.
On June 8, 1987, the case proceeded to trial before Judge Michael A. Obermeyer. Defendant renewed his motion to dismiss. Judge Obermeyer ruled that Judge Leary's determination was binding, but that the issue could be raised in a new trial motion if defendant were convicted. The case proceeded to trial and defendant was found guilty of the charge of driving after revocation prohibited.
Defendant filed a motion for new trial or in the alternative, a renewed motion to dismiss, based on the constitutional validity of the underlying convictions. After a hearing, Judge Obermeyer stated that he was concerned that there was insufficient evidence to support Judge Leary's findings, particularly on the issues of voluntariness and the establishment of a factual basis. The court ordered a new hearing on the constitutionality of the underlying convictions.
At the hearing, Judge Obermeyer accepted into evidence the transcript of the proceedings held before Judge Leary. Judge Brandenburg once again testified concerning his pattern of inquiry into the voluntariness of a defendant's plea and the existence of a factual basis for such plea. Judge Brandenburg testified that although he did not always ask the question, "Are you making this plea voluntarily?", he always made a determination whether the defendant's plea was voluntary. The judge indicated that if he had any doubt as to the voluntariness of the plea, he would make further inquiry as to the defendant's voluntariness, knowledge of his rights, and need to consult an attorney. Using the example of a plea to the charge of driving while ability impaired, Judge Brandenburg testified that when accepting the plea, he would ask the defendant if he understood that by entering a plea of guilty, he was admitting that on the date and time of the ticket he drove a motor vehicle in Morgan County, Colorado, after consuming some alcohol, and that the alcohol had an effect upon his ability to drive. The judge testified that if a defendant indicated that he was not admitting those facts, he would refuse to take the defendant's plea.
At the conclusion of the hearing, Judge Obermeyer held that the convictions in Case No. 81T1392 and Case No. 82T0984 were unconstitutional. He stated that it is difficult for a court to make a determination whether a plea is entered voluntarily, knowingly and intelligently unless there is some inquiry into the factual basis of the plea. Although the court found that Judge Brandenburg, when accepting the pleas from the defendant, followed his usual pattern, it held that such pattern was insufficient to establish a factual basis inquiry. Rather, an appropriate factual basis inquiry requires the court to:
[I]nquire if the defendant understands that the People have to show that he was driving a motor vehicle; that he had consumed alcohol; and that his ability to drive with safety to himself and others was impaired by having done so; and if he agrees that the People would be able to show that.
There is no inquiry of that nature reflected here, and I think the Court has to distinguish that component of the Rule 11 advisement which has to do with explaining the effect of the plea to the defendant from making a reasonable inquiry as to whether or not the plea is voluntary and in fact supported by some sort of an arguable factual basis.
The court then granted defendant's motion in part, and ordered a new trial.
Before the new trial date, the prosecution filed an original proceeding pursuant to C.A.R. 21, requesting the issuance of a rule to show cause as to why the trial court's order granting a new trial should not be vacated and the judgment of conviction reinstated. This court issued a rule to show cause and ordered that proceedings be stayed. Subsequently, we dismissed the original proceeding and discharged the rule as improvidently granted.
After the case was remanded, a third judge, Judge Harlan R. Bockman, was requested to review the evidence in order to make his own determination as to the...
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