People v. Marez, No. 00SC695.

• Citation: 39 P.3d 1190
• Decision Date: 04 February 2002
• Docket Number: No. 00SC695.
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Jose L. MAREZ, Respondent.
• Court: Colorado Supreme Court

39 P.3d 1190

The PEOPLE of the State of Colorado, Petitioner, v. Jose L. MAREZ, Respondent.

No. 00SC695.

Supreme Court of Colorado, En Banc.

February 4, 2002.

Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, CO, Attorneys for Petitioner.

Jose L. Marez, Pro Se.

Justice COATS delivered the Opinion of the Court.

The People petitioned for review of the court of appeals' judgment reversing the trial court's denial of postconviction relief. In his motion pursuant to Crim. P. 35(c), the defendant objected to the inclusion of a mandatory period of parole, of which he had not been advised at the time of his plea, in the sentence he received after violating the terms of his stipulation to a deferred judgment and sentence. The court of appeals rejected the People's contention that the additional period of parole was not a direct consequence of the defendant's plea because it attached to his sentence only after breach of his deferred-sentence agreement and that it was therefore not a matter as to which he was entitled to advisement. Because a period of parole that exceeds a defendant's sentence to incarceration for a particular offense increases the range of his punishment for that offense, it is a penalty as to which he must have been advised before pleading guilty. Therefore, the judgment of the court of appeals is affirmed.

I.

The defendant, Jose L. Marez, pled nolo contendere to charges of first degree burglary and misdemeanor menacing for offenses committed in January 1995. By the terms of his plea agreement, he received a sixty-day jail sentence for menacing and a three-year deferred judgment and sentence for burglary. Before completing the deferred judgment, the defendant violated its terms and was sentenced to the Colorado Department of Corrections for a term of twelve years. The department of corrections calculated the sentence as including, in addition, the five-year period of parole required by section 18-1-105(1)(a)(V)(A), 6 C.R.S. (2001).¹

The defendant filed a Crim. P. 35(c) motion in the sentencing court, challenging the additional period of parole as a penalty of which he had not been advised at the providency hearing and as violating the terms of his plea agreement. The district court denied the motion, finding that in any event the addition of the period of mandatory parole was harmless because when added to the defendant's twelve-year sentence to incarceration, the entire sentence did not exceed the twenty-four-year maximum term of which he had been advised.

On direct appeal to the court of appeals, the People conceded that the trial court had misread the record of the providency hearing, which showed that the defendant had been advised only that by pleading guilty to burglary he risked a possible sentence of twelve years. The People nevertheless opposed reversal of the trial court's order on the grounds that the failure to advise the defendant of a period of additional parole, which attached to his sentence only when he violated the terms of his stipulation to a deferred judgment and sentence and was then sentenced to the custody of the department of corrections, was not error at all. Because the period of parole became a part of the defendant's sentence only upon his violation of the terms of his deferred judgment, the People asserted that it was not a "direct consequence" of his plea and, therefore, that it was not among the penalties of which he had to be made aware to evidence a knowing and intelligent guilty plea. Holding that the defendant must have been advised before entering a plea resulting in a sentence including a mandatory period of parole, the court of appeals reversed and remanded with directions to reduce the defendant's term of incarceration to seven years, followed by the five additional years of parole mandated by statute. The People petitioned for review of that judgment by writ of certiorari.²

II.

For a guilty plea to be constitutionally effective, the record as a whole must reflect that the defendant was given sufficient notice of, among other things, the possible penalties to which he was subject as a result of his plea.³See Craig v. People, 986 P.2d 951, 963-64 (Colo.1999)

. The possible penalties of which a pleading defendant must be advised do not include every adverse consequence that he may suffer following his plea but only those consequences considered sufficiently direct. Direct consequences have been described as those that have a definite, direct, and largely automatic effect on the range of possible punishment. Craig, 986 P.2d at 963; People v. Birdsong, 958 P.2d 1124, 1128 (Colo.1998).

While there may be some debate about exactly which consequences are sufficiently "direct" to require advisement before entry of a guilty plea, the term at least clearly includes the maximum prison term and fine for the offense charged. See Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir.1995)

. It is now settled in this jurisdiction that parole is sufficiently like incarceration that the additional period of parole required by section 18-1-105(1)(a)(V)(A), 6 C.R.S. (2001), must be considered a direct consequence, of which a pleading defendant must be advised pursuant to Crim. P. 11(b)(4). Craig, 986 P.2d at 963-64; Benavidez, 986 P.2d at 950; see also United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (advisement of special parole required by Fed.R.Crim.P. 11); United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977) (finding violation of due process where period of special parole exceeded term of which the defendant had been warned). It is also settled that the additional periods of parole mandated by section 18-1-105(1)(a)(V)(A) apply only to sentences to imprisonment in the custody of the department of corrections for certain felonies and not to alternative sentences to probation or a community corrections program. Craig, 986 P.2d at 963; see also Young v. People, 30 P.3d 202, 205 (Colo.2001); People v. Johnson, 13 P.3d 309, 313 (Colo.2000).

Guilty pleas may of course be entered as the result of plea agreements in which the prosecutor makes sentence recommendations or concessions. See § 16-7-301(2)(a), 6 C.R.S. (1999); Crim. P. 11(f)(2)(I); see also People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978)

(equating sentence "concessions" and "recommendations"). A sentence concession does not, however, alter the range of possible penalties to which a defendant may be sentenced for the particular offense to which he pleads guilty. The trial judge in every case must exercise an independent judgment in deciding whether to grant charge and sentence concessions, and even though the judge may initially concur, if he ultimately decides that the final disposition should not include a sentence concession contemplated by the plea agreement, the effect of that decision is merely to permit the defendant to withdraw his guilty plea at the time of sentencing. § 16-7-302(2) and (3); Crim. P. 11(f)(5), 32(d).

A defendant is not harmed as long as he is legally sentenced in the range of which he was advised, and therefore his plea is not rendered invalid or void by a failure to fully advise him of the "correct and complete penalty," as long as the sentencing court does not impose any sentence greater than the defendant was advised. See Craig, 986 P.2d at 964

(quoting People v. Baca, 179 Colo. 156, 158, 499 P.2d 317, 318 (1972)); cf. Hyde v. Hinton, 180 Colo. 324, 326, 505 P.2d 376 (1973) (providency hearing considered proper in light of sentences meted out). Because a pleading defendant must have been advised that he was at risk of receiving as long a sentence as he actually receives, however, a sentencing court, in order to maintain its sentencing options, must advise a defendant at the time he decides to enter a guilty plea of the full range of possible penalties. Even if a court imposes an alternate sentence, such as probation or community corrections, whether a sentence to the custody of the department of corrections remains a legitimate sentencing option depends in part upon subsequent developments. See, e.g., § 16-11-206(5), 6 C.R.S. (2001); § 17-25-105(e), 6 C.R.S. (2001).

It is also well-settled that the consequences of subsequent acts by a defendant, even if those consequences are enhanced by an earlier guilty plea, are collateral rather than direct consequences of the earlier plea and therefore are not consequences of which the defendant must have been advised upon entering the earlier plea. See People v. Heinz, 197 Colo. 102, 105-06, 589 P.2d 931, 933 (1979)

. A plea is therefore not rendered invalid by the mere failure to warn the defendant that his sentence for a subsequent conviction would be enhanced because of the earlier plea. Id. Similarly, a plea is not invalid merely because the defendant was not warned that upon violation of the terms of his probation, he would be subject to resentencing to anything to which he could have originally been sentenced. Birdsong, 958 P.2d at 1128; see also Parry v. Rosemeyer, 64 F.3d at 114-115.⁴

But punishment for the subsequent conduct itself still requires adequate process. In order to be subjected to a prison sentence or an additional term of parole for subsequent conduct, a defendant must be convicted of or plead guilty to a subsequent offense. If the defendant's sentence to prison, and concomitant term of mandatory parole, does not flow from a subsequent conviction or effective waiver of the defendant's right to be tried for his subsequent conduct, and flows instead from an earlier plea, his sentence cannot exceed the...