People v. Hampton, 79SA361

• Decision Date: 06 October 1980
• Docket Number: No. 79SA361,79SA361
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Russell Millard HAMPTON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 48

619 P.2d 48

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Russell Millard HAMPTON, Defendant-Appellant.

No. 79SA361.

Supreme Court of Colorado, En Banc.

Oct. 6, 1980.

Rehearing Denied Nov. 24, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., James F. Carr, Asst. Atty. Gen., Denver, for plaintiff-appellee.

The Legal Clinic of South Eighth Street, Dick Gottsegen, Colorado Springs, for defendant--appellant.

LOHR, Justice.

This appeal raises questions concerning the ability of a defendant charged with Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973, ¹ to collaterally attack traffic offense convictions which form the basis of the defendant's habitual traffic offender status. The trial court prohibited the appellant, Russell Millard Hampton, from asserting the constitutional and statutory invalidity of such convictions. We conclude that the constitutional challenges should have been considered. Therefore, we reverse the appellant's conviction and remand this case to the trial court for further proceedings. ²

We have outlined the relevant statutes and procedures in several recent cases involving issues related to those which the appellant asserts in this case. See People v. Roybal, Colo., 617 P.2d 800 (1980); People v. Roybal, Colo., 618 P.2d 1121 (1980) (Roybal I); People v. McKnight, Colo., 617 P.2d 1178 (1980).

In an administrative hearing before the Colorado Department of Revenue, Motor Vehicle Division (DMV), the appellant was found to be an habitual traffic offender and his driver's license was revoked for five years. See sections 42-2-202, 203, and 205, C.R.S. 1973. His habitual traffic offender status was based upon that part of section 42-2-202(3), C.R.S. 1973, ³ which confers such status upon anyone who has ten or more traffic offense convictions for moving violations, each of which requires as assessment of four or more points, within a five-year period. See section 42-2-123(5), C.R.S. 1973 (1979 Supp.), for the point system schedule. The conviction for Driving After Judgment Prohibited, from which this appeal has been taken, is based upon a charge that the appellant operated a motor vehicle while the administrative order revoking his driver's license remained in effect. See section 42-2-206, C.R.S. 1973.

Before his trial to the court for Driving After Judgment Prohibited, the appellant moved that the trial court 'suppress' prior convictions. This motion was based upon the alleged invalidity of certain of the twelve traffic offense convictions which were used by the DMV to find that the appellant was an habitual traffic offender and to revoke his driver's license. The appellant contends that the invalidity of those convictions makes the administrative order revoking his driver's license invalid and so destroys the foundation for his conviction of Driving After Judgment Prohibited.

Hampton challenges the traffic offense convictions on two principal grounds: (1) that his constitutional right to counsel was violated because he was not represented by counsel and had not waived such representation; and (2) that his constitutional right to due process of law was violated because he was not advised of the number of points to be assessed for those convictions.

As evidence of invalidity, the appellant introduced the DMV's records of nine of the challenged convictions. Those records consisted of copies of the summons and complaint for each offense, with the disposition in each case noted on the back. ⁴ All of the convictions were for moving violations based on municipal ordinances; each offense carried a point value of four or more. Eight of the challenged convictions were obtained in the municipal court of Colorado Springs, most, if not all, based on pleas of guilty. The other conviction was obtained when the appellant acknowledged guilt and paid his fine at the violations bureau of the municipal court.

The appellant next introduced the testimony of the custodian of the Colorado Springs municipal court records that the court as a matter of course had destroyed all records dated prior to 1975. The DMV copies, therefore, were the only remaining records with respect to four of the challenged convictions. Finally, the appellant testified that in none of the proceedings leading to the nine convictions had he been represented by counsel, advised of his right to counsel, or advised of the points to be assessed against his driving record for each conviction.

In rebuttal the People recalled the municipal court custodian who produced a written advisement, signed by the appellant, containing an explanation of the appellant's rights, including the right to retain an attorney or to have counsel appointed if indigent. This advisement related solely to the April 16, 1976, conviction for careless driving. No advisements were produced with respect to any of the other convictions.

Defense counsel argued that the appellant's testimony, coupled with the lack of any indication in the conviction records that counsel had been present or validly waived or that the points had been disclosed, established the invalidity of these convictions for the purpose of imposing sanctions under section 42-2-206, C.R.S. 1973.

The trial court denied the appellant's motion to suppress the traffic offense convictions, noting that he could have appealed from those convictions when rendered. The trial court found the appellant guilty of Driving After Judgment Prohibited and this appeal followed.

I.

Where constitutional defects are alleged, a defendant may challenge the convictions supporting his status as an habitual traffic offender at his trial for Driving After Judgment Prohibited. Roybal I, supra; People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); see People v. Able, Colo., 618 P.2d 1110 (1980). If the appellant's constitutional rights were denied in obtaining the underlying traffic offense convictions, those convictions may not be used as part of the foundation for the criminal sanctions prescribed by section 42-2-206, C.R.S. 1973. Roybal I, supra; People v. Heinz, supra; see People v. Able, supra.

II.

A.

Absent a valid waiver of the right to counsel, a conviction obtained against a defendant who is not represented by counsel may not be used to establish habitual traffic offender status for the purpose of imposing punishment for Driving After Judgment Prohibited. Roybal I, supra; see U.S.Const. amends. VI, XIV; Colo. Const. art. II, § 16; People v. Able, supra; People v. Heinz, supra. This rule applies even though the prior conviction resulted from a plea of guilty and involved no actual imprisonment. Roybal I, supra. At least with respect to the convictions resulting from court appearances, this case falls squarely within the holding of Roybal I, supra. As in that case, the convictions here were punishable by a sentence to jail. ⁵ Here, no incarceration was imposed; in Roybal I we assumed no incarceration was imposed. ⁶ Therefore, our construction of the Driving After Judgment Prohibited statute in Roybal I to conform to the prohibition of Baldasar v. Illinois, ---- U.S. ----, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), against collateral use of uncounseled convictions applies with full force in the present case.

B.

There is no valid reason why this principle should not extend to a conviction obtained when the appellant admitted guilt and paid his fine at the violations bureau. Although incarceration was not a possible consequence of the conviction, the need to insist upon its constitutional validity is still present since, in its later use under the habitual traffic offender statute, such a conviction has the same effect in supporting loss of liberty for violation of section 42-2-206, C.R.S. 1973, as a conviction based upon proceedings in court. Baldasar v. Illinois, supra, holds that, while an uncounseled conviction may be valid to impose a criminal punishment other than imprisonment, it may not be used later to support or enhance a deprivation of liberty for another offense. We hold that a traffic offense conviction obtained by acknowledgement of guilt and payment of a statutorily specified fine at the violations bureau may not be used to support the criminal sanctions of section 42-2-206, C.R.S. 1973, unless the person who elects the fine-payment procedures is informed that he has a right to counsel and unless he waives that right. ⁷

III.

The appellant also attacks his underlying traffic offense convictions on the ground that he was never informed of the points that were to be assessed upon conviction. See Stortz v. Colorado Department of Revenue, 195 Colo. 325, 578 P.2d 229 (1978). There is no indication in the records introduced by the appellant that such a disclosure was made. However, defects in the underlying convictions which are not of constitutional significance and which do not deprive the DMV of jurisdiction to revoke the appellant's license may not be raised in a criminal action under section 42-2-206, C.R.S. 1973. People v. Able, supra.

The failure to warn a person charged with a traffic offense that he will accumulate a designated number of points against his driving record upon conviction does not breach any constitutional protections. See People v. Heinz, supra. ⁸ The imposition of points has no immediate criminal effect. Such an assessment does not by itself allow the imposition of any additional punishment. See American Bar Association Standards Relating to Pleas of Guilty 14-1.4 (approved draft, 1978). While it may allow the state to revoke the defendant's driver's license, this civil consequence need not be disclosed to satisfy any constitutional mandate. The appellant's argument is therefore no different than the one rejected in People v. Heinz, supra. In that case we held that neither due process nor Crim. P. 11 required a trial judge to inform a defendant that his plea of guilty to a traffic offense now...