People v. Johnson
| Citation | 644 P.2d 34 |
| Decision Date | 12 June 1980 |
| Docket Number | Nos. 78-159,78-160,s. 78-159 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tere Lee JOHNSON, Defendant-Appellant. . II |
| Court | Court of Appeals of Colorado |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Robert Breindel, Deputy State Public Defender, Denver, for defendant-appellant.
Tere Lee Johnson was convicted by a jury of first degree burglary, second degree burglary, theft, and second degree assault in Case No. 78-159. He was also convicted after a jury trial of second degree burglary in Case No. 78-160. He was sentenced as an habitual criminal in each case. In this consolidated appeal, we affirm in part, reverse in part, and remand with directions.
Johnson's convictions stem from offenses allegedly perpetrated on September 4, December 2, and December 8, 1976. Charges were filed in two criminal actions, which were tried together, both of which included habitual criminal counts based upon the allegation that Johnson had previously been convicted of four felonies. Following conviction of these 1976 offenses, the jury found that Johnson had been convicted of four previous felonies, and the court sentenced him as an habitual criminal in both actions to life imprisonment pursuant to § 16-13-101(2), C.R.S.1973 (1978 Repl. Vol 8); the sentences imposed were to run concurrently.
As pertinent to this case, § 16-13-101(2), C.R.S.1973 (1978 Repl. Vol. 8), provides:
"Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried ... of a felony ... shall be adjudged an habitual criminal ...."
It is not disputed that Johnson had been convicted of four previous felonies: Theft, perpetrated on December 28, 1975; second degree burglary, perpetrated on January 5, 1976; second degree burglary, perpetrated on January 28, 1976; and joy riding, perpetrated on January 28, 1976. Guilty pleas were entered by Johnson to these charges on July 12, 1976; the court accepted the pleas and entered judgment of conviction on July 17, 1976.
On appeal Johnson asserts that because these four felony convictions were obtained in the same court on the same day following acceptance of guilty pleas, the requirement of the statute that a defendant be previously convicted of three felonies "upon charges separately brought and tried" has not been met. He contends that the four convictions should therefore be considered as only one conviction for purposes of enhancement of sentence under § 16-13-101(2), C.R.S.1973 (1978 Repl. Vol. 8). We do not agree.
The convictions in question were for distinct offenses, arising from separate criminal episodes perpetrated on three different dates. The record establishes that the charges were brought in separate criminal actions which could have been separately tried had guilty pleas not been entered.
In People v. Gimmy, Colo.App., 620 P.2d 42 (1980), under essentially identical factual circumstances, we addressed the issue presented here-whether the habitual criminal statute applies when the underlying felonies arise from convictions entered on the same day. In that case we noted that under § 16-13-101, C.R.S.1973 (1978 Repl. Vol. 8), guilty pleas have the same impact as other felony convictions, and held that because the General Assembly imposed no time limitation on the use of felonies for purposes of enhancing punishment for repeat offenders, multiple convictions obtained on the same day pursuant to guilty pleas need not be considered as one felony only. That case is dispositive of the issue presented here. We therefore affirm the trial court's judgment that the four convictions obtained on the same day could be used for purposes of enhancement of sentence under the habitual criminal statute.
Johnson also contends that his convictions must be reversed because the trial court erroneously denied his motion to suppress incriminating statements subsequently introduced at trial. Johnson asserts that the statements were obtained as a result of promises and inducements made by the interrogating police officer which rendered them involuntary and hence inadmissible. Following an in-camera hearing, the trial court found that the statements did not result from any promises, and were voluntarily made.
On December 9, 1976, Johnson went to the Fort Collins Police Department with his counselor from the Larimer County Community Correction Project to answer questions concerning burglaries committed in the Campus West area of Fort Collins. Initially he denied participating in the offenses, but later changed his mind and revealed his involvement in those burglaries. At the suppression hearing Johnson asserted that he made the statements to the police because the interrogating officer promised him that if he admitted his involvement in the Campus West burglaries the officer would only seek revocation of a probation from previous convictions, and new charges would not be filed. The interrogating officer denied making any promises to Johnson.
A determination of the question whether the officer made promises or somehow induced Johnson to make the statements turns on a resolution of conflicting evidence. The trial court specifically considered the credibility of the witnesses in making its determination, found that no promises were made and that Johnson's statements were voluntarily made, and denied the motion to suppress. The trial court's finding on the voluntariness of the statements is supported by adequate evidence in the record; thus the finding must be upheld on review. People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975).
Finally, Johnson contends that his conviction of second degree assault must be reversed because the trial court erroneously permitted a substantive amendment to the information charging that offense subsequent to trial. The information in question initially alleged that Johnson "did unlawfully, feloniously and recklessly cause bodily injury to the victim ... by means of a...
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Cervantes v. People
...that results in elevating to a felony an accusation that is arguably sufficient to allege, at best, a misdemeanor. People v. Johnson, 644 P.2d 34 (Colo.App.1980), aff'd sub nom. Gimmy v. People, 645 P.2d 262 (1982) (affirmed on other grounds) (amendment elevating charge from third degree to......
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People v. Manyik, Court of Appeals No. 13CA0043
...statute, sentence, or level of offense.”) (emphasis added).¶ 53 A division of this court reached the same conclusion in People v. Johnson, 644 P.2d 34 (Colo.App.1980). In Johnson, the information initially charged the defendant with the elements of third degree assault, but the trial court ......
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People v. Palmer, Court of Appeals No. 16CA0215
...the number of victims, the prosecution’s burden of proof, any defenses to the arson, or the grade of the offense. Cf. People v. Johnson , 644 P.2d 34, 38 (Colo. App. 1980) (finding an amendment that altered the required mens rea was one of substance because it resulted in a "different and m......
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People v. Cervantes, 81CA0788
...of the punishment to which defendant is subjected, then even amendments as to form are not permissible. Crim.P. 7(e); People v. Johnson, 644 P.2d 34 (Colo.App.1980), aff'd on other grounds sub nom., Gimmy v. People, 645 P.2d 262 (Colo.1982). Finally, I find no merit in the People's argument......