People v. Pietrantonio, No. 84CA0825
| Docket Nº | No. 84CA0825 |
| Citation | 727 P.2d 407 |
| Case Date | August 21, 1986 |
| Court | Court of Appeals of Colorado |
Page 407
v.
Dennis Edward PIETRANTONIO, Defendant-Appellant.
Div. III.
Rehearing Denied Sept. 18, 1986.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Pamela Stross Kenney, Deputy State Public Defender, Philip R. Cockerille, P.C., Ilene P. Buchalter, Sp. Deputy State Public Defender, Denver, for defendant-appellant.
TURSI, Judge.
Defendant, Dennis Edward Pietrantonio, appeals the judgment entered on a finding of guilty to conspiracy to distribute cocaine in a trial to the court. We remand for further proceedings consistent with this opinion.
Defendant did not testify at trial. In the week following defendant's trial, the decision in People v. Curtis, 681 P.2d 504 (Colo.1984) was issued in which the Supreme Court mandated certain procedural safeguards concerning a defendant's right to testify and a waiver thereof. In his motion for new trial, defendant contended, inter alia, that: "[T]he trial court erred in not advising defendant of his right to testify at trial and obtaining a waiver of such right."
In disposing of this issue without a hearing, the trial court stated that: "Admittedly, the better course would have been to give the advisement and obtain an express voluntary waiver from the defendant; however, under the facts herein, the court's oversight was harmless error." The trial court found that the defendant was "certainly" apprised of his right to testify, his co-defendant testified at considerable length in his presence, and in his motion he did not allege that he was unaware of his right to testify, or that he wished to testify, or that his attorney and not he had made the decision that he not testify.
In People v. Curtis, supra, the Supreme Court expressly declined to apply the procedural rule announced therein retroactively. It stated: "[A] silent record in a trial held before our decision today does not in and of itself raise serious doubts about the accuracy of a guilty verdict."
However, defendant contends that, even if Curtis is not applied retroactively procedurally, the trial court had a duty to consider whether the waiver of the right to testify was in fact voluntary, knowing, and intentional. We agree.
In People v. Jones, the companion...
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People v. Naranjo, No. 89CA938
...testify but was denied his constitutional right to do so. See Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971); People v. Pietrantonio, 727 P.2d 407 The People next argue, however, that in light of the overwhelming evidence against defendant, the error, if any, was Page 838 harmless beyon......
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People v. Naranjo, No. 89CA938
...testify but was denied his constitutional right to do so. See Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971); People v. Pietrantonio, 727 P.2d 407 The People next argue, however, that in light of the overwhelming evidence against defendant, the error, if any, was Page 838 harmless beyon......