People v. Hodge
| Decision Date | 30 October 2008 |
| Docket Number | No. 06CA1936.,06CA1936. |
| Citation | 205 P.3d 481 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Blanch Cleveland HODGE, a/k/a Blanch Cleveland Hodge, Jr., Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Law Office of Jami Vigil, L.L.C., Jami Vigil, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge WEBB.
Defendant, Blanch Cleveland Hodge, appeals the trial court's order denying his most recent postconviction motion seeking to withdraw his plea agreement. We vacate the order and remand for an evidentiary hearing, at which Hodge shall be appointed counsel.
In 1999, Hodge pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to first degree burglary and third degree sexual assault. The trial court sentenced him to the Department of Corrections (DOC) for concurrent terms of thirty years and two years, respectively. Hodge then filed a Crim. P. 35(a) motion, arguing that his burglary sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which the trial court denied. On appeal, a division of this court determined that the thirty-year sentence for burglary exceeded the maximum sentence authorized by the statutes, vacated the sentence, and remanded the case for resentencing. People v. Hodge, 2003 WL 22053528 (Colo.App. No. 02CA0341, Sept. 4, 2003) (not published pursuant to C.A.R. 35(f)) (Hodge I).
On remand, the trial court denied Hodge's request that counsel be appointed and resentenced him to twenty-four years in the DOC, the maximum sentence in the aggravated range. Hodge then moved to withdraw his plea arguing, as relevant here, that his plea agreement was invalid because the trial court's providency advisement had been inaccurate. He also sought to vacate the sentence because he had been denied counsel at the resentencing hearing. The trial court denied the motion, finding that Hodge was not prejudiced by the lack of counsel, his other claims failed on the merits, and they were both successive and time barred.
On appeal, a division of this court held that Hodge's right to counsel had been violated by the court's refusal to appoint counsel for resentencing, vacated the sentence, and remanded the case for resentencing with counsel. The division also held that the court properly denied Hodge's motion to withdraw his plea because it was untimely. See People v. Hodge, 2006 WL 800702 (Colo.App. No. 04CA1255, Mar. 30, 2006) (not published pursuant to C.A.R. 35(f)) (Hodge II).
Before the second resentencing, Hodge again moved to withdraw his plea, alleging that he was incorrectly advised of the sentencing range at his providency hearing, and thus his plea was unintelligent and unknowing. The trial court orally denied the motion, finding that Hodge was not entitled to withdraw his plea because he had been advised of the full range of possible sentences, including mitigating and aggravating ranges. After appointing counsel, the court again sentenced him to twenty-four years in the DOC. This appeal followed.
Initially, we conclude that, contrary to the Attorney General's argument on appeal, the Crim. P. 32(d) motion is timely because it was filed before resentencing, after the sentence had been vacated in Hodge II. See Crim. P. 32(d) (); cf. Delgado v. People, 105 P.3d 634, 638 (Colo.2005) ().
Alternatively, the Attorney General argues that Hodge's motion should be denied as successive because it was addressed in Hodge II. On the particular facts presented we disagree because the plea issue in Hodge II was raised in a Crim. P. 35(c) motion filed after the first resentencing. See People v. Dawson, 89 P.3d 447, 449 (Colo.App.2003)("[A]fter sentence has been imposed, the validity of a guilty plea can be challenged under Crim. P. 35(c)."). But the plea issue here was filed before the second resentencing as a Crim. P. 32(d) motion. Thus, the Hodge II division's conclusion that the motion was time barred under section 16-5-402(2), C.R.S.2008, does not reflect the procedural posture before us. Further, once Hodge's sentence was vacated, the correctness of that conclusion became questionable based on the requirement that a Crim. P. 32(d) motion be filed "before sentence is imposed." Compare Delgado, 105 P.3d at 638 (), with Leyva v. People, 184 P.3d 48, 50 (Colo.2008) (); see People v. Roybal, 672 P.2d 1003, 1005 n. 5 (Colo.1983) ().
Hodge contends the trial court should have granted his most recent motion to withdraw his plea for two reasons: first, his advisement was defective because the court advised him that he could receive a sentence as low as two years if it found extraordinary mitigating factors, when in fact he was subject to mandatory aggravation based on probation status when he committed the crimes; and, second, his sentence is illegal because the court did not advise him that he was subject to mandatory aggravation. We conclude that the advisement was defective and an evidentiary hearing is required to determine whether the error was harmless. However, we also conclude that the sentence is not illegal.
A defendant may not as a matter of right have a guilty plea withdrawn or changed. People v. Valdez, 928 P.2d 1387, 1392 (Colo.App.1996). Rather, the defendant has the burden of showing a fair and just reason for the withdrawal of his plea. People v. Gutierrez, 622 P.2d 547, 559 (Colo. 1981); People v. Finley, 141 P.3d 911, 913 (Colo.App.2006).
A motion to withdraw a plea before sentencing is addressed to the sound discretion of the trial court, and denial of such a motion will not be overturned absent abuse of discretion. Gutierrez, 622 P.2d at 559. To constitute an abuse of discretion, the court's ruling must be manifestly arbitrary, unreasonable, or unfair. Id.; People v. DiGuglielmo, 33 P.3d 1248, 1250 (Colo.App. 2001).
Nevertheless, to satisfy the requirements of due process, the record as a whole must show that the defendant entered a guilty plea knowingly and voluntarily. People v. Gresl, 89 P.3d 499, 502 (Colo.App. 2003). Before accepting the plea, the 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. Corral, 174 P.3d 837, 839 (Colo.App.2007); Gresl, 89 P.3d at 502.
Hodge's plea agreement is not in the record. At the providency hearing, defense counsel explained that Hodge had agreed to plead guilty to first degree burglary, a class three felony, and an amended count of third degree sexual assault, a class one misdemeanor, in exchange for the prosecution dismissing the remaining counts. The prosecutor concurred.
Defense counsel also said, "there would be a range of 2 to 32 years." The court asked the prosecutor about the sentencing range on which Hodge should be advised. Noting Hodge's probationary status, the prosecutor asserted, "Judge, it becomes a 10 to 32." The court responded, "And should I advise him as to exceptional circumstances, 2 to 32 still?" The prosecutor responded, "I think so, judge." The court then advised Hodge, as relevant here:
A plea of guilty of that offense is punishable by a minimum of 4 years to a maximum of 16 years ... plus 5 years of mandatory parole; if there are mitigating factors, the sentence could be as long [sic] as two years. If there are aggravating factors, the sentence could be as high as 32 years.
The court made no mention of the mandatory minimum sentence based on probationary status, nor did the prosecutor further address the sentencing range. Hodge responded that he understood. Defense counsel remained silent. Later in the proceeding, the court confirmed Hodge's understanding that the court would not be bound by any representations "other than what's been stated today in open court."
However, the conviction was mandatorily aggravated because Hodge was on probation when he committed this offense. See § 18-1.3-401(1)(a)(V)(A), (8)(a)(III), C.R.S.2008; see also Hodge I. Thus, because the sentencing range for the first degree burglary count was between eight and twenty-four years, the trial court incorrectly advised Hodge.
We cannot disregard this error because Hodge failed to seek clarification of the discrepancy between the prosecutor's statement (10 to 32 years), on the one hand, and his attorney's statement (2 to 32 years) and the court's advisement (2 to 32 years), on the other hand, based on cases such as People v. DiGuglielmo, 33 P.3d at 1250, and People v. Chavez, 7 P.3d 1047, 1051 (Colo.App.1999). Those cases oblige a defendant to speak where the court's providency hearing advisement is contrary to the terms of the plea agreement. But here, the plea agreement is not in the record.
While Hodge had actual knowledge of his probationary status, he cannot be charged with knowledge of the sentencing consequences. In the absence of the plea agreement, we conclude that because the court's incorrect...
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