People v. Mascarenas, 81SA164

Decision Date31 August 1981
Docket NumberNo. 81SA164,81SA164
Citation632 P.2d 1028
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Rudy MASCARENAS, Defendant-Appellee.
CourtColorado Supreme Court

Eugene Farish, Dist. Atty., Monte Vista, for plaintiff-appellant.

Bruce Boreson, Deputy State Public Defender, Alamosa, for defendant-appellee.

LOHR, Justice.

This is an interlocutory appeal by the district attorney in a prosecution of the defendant, Rudy Mascarenas, for Driving After Judgment Prohibited, section 42-2-206(1), C.R.S.1973. The district attorney challenges a ruling of the District Court for Rio Grande County that one of the traffic offense convictions supporting an habitual traffic offender determination of the Department of Revenue, Motor vehicle Division (DMV), was obtained in violation of the defendant's constitutional right to counsel. U.S. Const. Amends. VI, XIV; Colo. Const. Art. II, § 16. The court concluded that the defendant made a prima facie showing, unrebutted by the prosecution, that he was not represented by counsel and had not waived such representation at the time he offered the plea of guilty upon which his traffic offense conviction was based. We conclude that the defendant did not make a prima facie showing that his right to counsel was violated and so reverse the ruling of the trial court.

A police officer stopped the defendant, who was driving a motor vehicle on the streets of Monte Vista, and cited him for attempting to elude a police officer, section 18-9-116.5, C.R.S.1973 (1978 Repl. Vol. 8), and driving a motor vehicle while his license was suspended for failure to furnish proof of financial responsibility, section 42-7-422, C.R.S.1973. Later, the district attorney learned that the DMV had found the defendant to be an habitual traffic offender and consequently had revoked his privilege to operate a motor vehicle prior to the incident for which he was stopped in Monte Vista. The district attorney then filed an "amended complaint/information," 1 charging the defendant with Driving After Judgment Prohibited in addition to the two offenses for which he was originally cited. 2

The defendant moved to dismiss the charge of Driving After Judgment Prohibited, or to suppress the underlying traffic offense convictions, on the basis that his constitutional right to counsel was violated in the proceedings which resulted in the three traffic offense convictions upon which the DMV's order revoking his driver's license was based. After a hearing, held immediately before a scheduled jury trial, the court ruled that the defendant's challenges to two of the convictions were not meritorious, but found that the third, a conviction in Denver County Court, had been obtained in violation of his constitutional right to counsel. The court suppressed that conviction; the district attorney then brought this interlocutory appeal.

I.

We have described the statutory framework for a charge of Driving After Judgment Prohibited in People v. Roybal, Colo., 617 P.2d 800 (1980) (Roybal II ):

Section 42-2-203, C.R.S.1973, grants the Colorado Department of Revenue, Motor Vehicle Division (DMV), authority to revoke the driver's license of an habitual traffic offender for a period of five years. An habitual traffic offender is any person who, after notice and administrative hearing, is found by the DMV to have sustained a designated number of convictions for specified traffic offenses within a prescribed period of time. Section 42-2-202, C.R.S.1973. Operation of a motor vehicle while such a revocation is in effect constitutes the class 5 felony of Driving After Judgment Prohibited. Section 42-2-206, C.R.S.1973.

617 P.2d at 801.

A defendant charged with Driving After Judgment Prohibited has a right to challenge the constitutional validity of the traffic offense convictions which underlie that charge. People v. Dooley, Colo., 630 P.2d 608 (1981); People v. Shaver, Colo., 630 P.2d 600 (1981); People v. DeLeon, Colo., 625 P.2d 1010 (1981); People v. Hampton, Colo., 619 P.2d 48 (1980); Roybal II, supra; People v. Roybal, Colo., 618 P.2d 1121 (1980) (Roybal I ); People v. McKnight, Colo., 617 P.2d 1178 (1980); People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); see People v. Able Colo., 618 P.2d 1110 (1980). Thus, a violation of a defendant's constitutional right to counsel in a traffic offense proceeding can be asserted as a defense in a subsequent prosecution for Driving After Judgment Prohibited based in essential part upon conviction of that traffic offense. People v. Shaver, supra; People v. DeLeon, supra; People v. Hampton, supra; Roybal I, supra.

A defendant has the burden of making a prima facie showing that a challenged traffic offense conviction was unconstitutionally obtained; thereafter, the People must prove the conviction was obtained consistent with the defendant's constitutional rights. People v. Shaver, supra; People v. DeLeon, supra; Roybal I, supra. The question which we must decide here is whether the defendant made a prima facie showing that his constitutional right to counsel was violated in obtaining the third traffic offense conviction, entered in Denver County Court for driving while ability impaired, section 42-4-1202(1) (b), C.R.S.1973.

II.

The only evidence bearing on the constitutional challenge is contained in that portion of the record of the Denver County Court proceeding which was received as a defense exhibit at the motion hearing. In that proceeding, the defendant was originally charged with driving under suspension, section 42-2-130, C.R.S.1973 (1980 Supp.), driving under the influence of intoxicating liquor, section 42-4-1202(1)(a), C.R.S.1973, failure to drive in a single lane, section 42-4-907, C.R.S.1973, and reckless driving, section 42-4-1203, C.R.S.1973 (1980 Supp.). The relevant documents which are part of the exhibit consist of a group of papers relating to the withdrawal of private counsel, an application for representation by the public defender, a mittimus and the docket sheets.

The docket sheets and other documents reflect that the defendant was represented by private counsel until January 20, 1978, when counsel's motion to withdraw was granted. On that same day, the defendant filed an application for representation by the public defender; the public defender endorsed on the application his determination that the defendant was indigent and entitled to the services of the state public defender; and the county court judge signed a determination form on that application with respect to the defendant's financial status. The form signed by the judge contemplated that he would circle one of four alternative determinations: the defendant "(is indigent) (is partially indigent) (is not indigent) (requires hearing)." The judge circled none of these alternative findings.

The mittimus, dated March 16, 1978, reflects that the defendant was examined before the county court judge, the charge of driving while ability impaired was read to him, he pled guilty and his plea was accepted. It contains no indication whether he was represented by counsel.

The docket sheets contain some information as to the defendant's representation by counsel. Near the top of the first page is a place for entry of name, address and telephone number of the attorney for the defendant. Private counsel's name appears there, crossed off with the notation "withdrawn" dated January 20, 1978. A motion and court order reflecting withdrawal of counsel also appear in the record. The application for representation by the public defender and the judge's execution of the incomplete determination of the...

To continue reading

Request your trial
9 cases
  • People v. Drake
    • United States
    • Colorado Supreme Court
    • January 16, 1990
    ...insufficient to support the vacation of an enhanced penalty. People v. Romero, 767 P.2d 782, 786 (Colo.App.1988) (citing People v. Mascarenas, 632 P.2d 1028 (Colo.1981)). The defendant first argues that the elements of the 1973 forgery charge to which he pleaded guilty were not readily unde......
  • People v. Quintana
    • United States
    • Colorado Supreme Court
    • September 14, 1981
    ...in an order of license revocation because the order constitutes essential proof on the issue of guilt. See also, e. g., People v. Mascarenas, Colo., 632 P.2d 1028 (1981); People v. Dooley, Colo., 630 P.2d 608 (1981); People v. Hampton, Colo., 619 P.2d 48 (1980). We extended this right of co......
  • Watkins v. People, 81SC82
    • United States
    • Colorado Supreme Court
    • December 20, 1982
    ...prima facie showing that the challenged conviction was unconstitutionally obtained. People v. Quintana, supra; see also People v. Mascarenas, 632 P.2d 1028 (Colo.1981); People v. Shaver, 630 P.2d 600 (Colo.1981); Roybal I, supra. A prima facie showing in the context of this case means evide......
  • People v. Hrapski, 84SA114
    • United States
    • Colorado Supreme Court
    • May 19, 1986
    ...unconstitutionally obtained. Watkins v. People, 655 P.2d 834 (Colo.1982); People v. Quintana, 634 P.2d 413 (Colo.1981); People v. Mascarenas, 632 P.2d 1028 (Colo.1981). A prima facie showing means evidence which, when considered in a light most favorable to the defendant and all reasonable ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT