People v. Patton, 98CA0892.

• Decision Date: 09 December 1999
• Docket Number: No. 98CA0892.,98CA0892.
• Citation: 7 P.3d 1057
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brand PATTON, Defendant-Appellant.
• Court: Colorado Court of Appeals

7 P.3d 1057

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brand PATTON, Defendant-Appellant.

No. 98CA0892.

Colorado Court of Appeals, Div. IV.

December 9, 1999.

Certiorari Granted September 5, 2000.

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Jane Hazen, Jane Hazen, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Brand Patton, appeals the judgment of conviction and sentences entered upon his guilty pleas to one count of unlawful possession of a controlled substance and one count of unlawful manufacture/distribution of a controlled substance. We affirm.

Defendant was charged with multiple counts in two successive cases. In case 97CR26, a multi-defendant information was filed. Defendant was charged with unlawfully manufacturing methamphetamine/amphetamine (count 17), unlawfully possessing methamphetamine/amphetamine (count 18), unlawfully possessing ephedrine (count 19), conspiring to manufacture or distribute methamphetamine/amphetamine (count 20), and conspiring to manufacture or distribute ephedrine (count 21). In addition, defendant was charged with a petty offense and a sentence enhancement provision for possession of a deadly weapon. The information alleged that all of the offenses were committed between October 1, 1996, and February 4, 1997.

After the prosecutor dismissed count 19 of the information, the county court conducted a preliminary hearing on the remaining felony charges. The court found probable cause for each offense and bound defendant over to district court.

Defendant was later charged with three additional offenses in case 97CR125: two counts of unlawful distribution, manufacturing, dispensing, sale, and possession of methamphetamine and one count of conspiracy to commit unlawful distribution, manufacturing, dispensing, sale, and possession of methamphetamine. The information alleged that these offenses were committed between February 5, 1997, and July 17, 1997. Defendant was bound over to district court on these charges as well.

In the district court, the prosecutor filed a motion seeking to consolidate the two cases and asking the court to combine the "similar" charges "with an offense date of October 1, 1996, to July 17, 1997." The record does not indicate that the trial court granted the motion, but it did order that the two cases be "joined for further disposition."

Soon thereafter, the parties entered into a plea agreement. Pursuant to that agreement, the People amended count 17 in case 97CR26 (the methamphetamine/amphetamine manufacturing count) so that the dates charged were from October 1, 1996, to July 17, 1997. Defendant agreed to plead guilty to that amended charge, together with count 18 in the same case (unlawfully possessing methamphetamine/amphetamine between October 1, 1996, and February 4, 1997). In exchange, the People agreed to dismiss all remaining charges pending against defendant.

At the providency hearing, the factual basis for the two charges to which defendant had agreed to plead guilty was established by means of police affidavits prepared in support of the arrest and search warrants. The trial court accepted the pleas and imposed concurrent sentences to the Department of Corrections (DOC) of twelve years on the manufacturing count and six years on the possession count. This appeal followed.

I.

Defendant contends that double jeopardy principles require that his conviction for possession of a controlled substance be merged into his conviction for unlawful manufacture of a controlled substance because manufacturing necessarily includes possession. The argument is premised on his assertion that the record establishes that the two convictions were based on identical conduct. Because we disagree with the premise of the argument, we find no constitutional violation.

Although a voluntary guilty plea waives all non-jurisdictional defenses, it does not necessarily preclude a challenge based on double jeopardy grounds. However, such a challenge can succeed only if it is evident from the face of the charging instrument and the record existing at the time the guilty plea was entered that the charge was one which the state could not constitutionally prosecute. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); People v. Higgins, 920 P.2d 898 (Colo.App.1996).

Initially, we note defendant's contention that the manufacture of a controlled substance necessarily includes its possession. We also note his contention that, if his challenge succeeds, he is entitled to retain the benefit of his plea bargain and, at the same time, obtain the dismissal of one of his two agreed convictions. Even assuming without deciding that defendant is correct as to both contentions, we conclude that his constitutional claim must fail.

Here, while there is some overlap in the two time periods charged in the two counts in the amended information, they are not identical. Further, it appears from the procedural history reflected in the record and the facts alleged in the arrest and search warrant affidavits that defendant had manufactured methamphetamine; had been arrested, charged, and released; and had again manufactured methamphetamine.

It therefore appears that defendant had engaged in the manufacture of at least one separate "batch" of methamphetamine in each relevant time period. At the least, it is not evident from the face of the information and the record existing at the time defendant entered his...