People v. Quintana

• Decision Date: 14 September 1981
• Docket Number: No. 80SA351,80SA351
• Citation: 634 P.2d 413
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael Albert QUINTANA, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 413

634 P.2d 413

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael Albert QUINTANA, Defendant-Appellee.

No. 80SA351.

Supreme Court of Colorado, En Banc.

Sept. 14, 1981.

Robert L. Russel, Dist. Atty., David H. Zook, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Larry J. Rodriguez, Colorado Springs, for defendant-appellee.

QUINN, Justice.

Pursuant to section 16-12-102, C.R.S.1973 (1978 Repl. Vol. 8), the People appeal the trial court's dismissal of habitual criminal charges after a jury, in the first phase of a statutory bifurcated trial under the habitual criminal statute, section 16-13-101 et seq., C.R.S.1973 (1978 Rep. Vol. 8), had returned a verdict of guilty to the substantive crime of second degree burglary of a building, section 18-4-203, C.R.S.1973 (1978 Repl. Vol. 8). The court dismissed one habitual criminal count on the basis of an inadequate judicial advisement during the providency hearing at which the defendant entered a plea of guilty. The court dismissed the two remaining habitual criminal counts because the substantive crime of second degree burglary of a building did not qualify under the habitual criminal statute as "a felony for which the maximum penalty prescribed by law exceeds five years." Section 16-13-101, C.R.S.1973 (1978 Repl. Vol. 8). We disapprove of the trial court's rulings but hold that the state constitutional guarantee against double jeopardy, Colo.Const. Art. II, Sec. 18, prohibits the retrial of the defendant on the habitual criminal charges.

I.

The defendant, Michael Quintana, was charged by direct information with second degree burglary of a building on March 23, 1980, and with habitual criminality based on three prior felony convictions. The habitual criminal charges consisted of 1971, 1973 and 1975 convictions. The defendant entered a plea of not guilty to the substantive offense and denied the prior convictions.

The case was tried to a jury in a bifurcated proceeding, the first phase of which involved the crime of second degree burglary of a building and the second phase the habitual criminal charges. After the jury returned the guilty verdict and prior to the commencement of the second phase of the trial, the defendant moved to dismiss the habitual counts because his prior pleas of guilty were not knowingly and voluntarily entered with full awareness of the consequences and, therefore, the convictions entered violated due process of law. The court had available to it various records, including the register of actions and the reporter's transcript of the providency hearing for the 1971 burglary case.

The court register disclosed that on August 4, 1971, the defendant appeared before the court, was advised of the charge and of his rights, and a public defender was appointed in his behalf. The defendant was present in court with his attorney on August 19, 1971, and entered a plea of not guilty, whereupon the case was set for a jury trial on November 1, 1971. On August 20, 1971, the day after the entry of the not guilty plea, the defendant and a co-defendant appeared with their respective attorneys and withdrew their previously entered not guilty pleas and pled guilty to second degree burglary. The register entry for August 20, 1971, states:

"Defendants withdraw their pleas of Not Guilty and enter pleas of Guilty as charged. Consequences explained, persist, pleas received and entered and matter continued to September 3, 1971 at 10:30 a. m. in Div. III for Pre-Sentence Investigation report. Trial date of November 1, 1971 vacated as to these defendants only."

The reporter's transcript of the providency hearing on the 1971 guilty plea consisted of six and one-half typewritten pages. It discloses that the court, addressing the defendant personally in the presence of his attorney, explained the charge to him, inquired about his state of mind and the voluntary nature of his plea, informed him of the privilege against self-incrimination, and advised him that the court would not be bound by any promises or representations made to him about the sentence. In connection with the defendant's right to a jury trial the following interchange took place between the court and the defendant:

"THE COURT: You understand you will not have a trial if you enter this plea of guilty?

"(THE DEFENDANT): Yes."

Before accepting the plea of guilty the court addressed the defendant's attorney:

"THE COURT: Mr. O'Reilly, have you talked to him (the defendant)?

"MR. O'REILLY (Defendant's Attorney): I have, Your Honor, and other people in my office have too; he definitely wants to enter this plea and he knows the consequences, and his plea is voluntary."

The trial court ruled that the defendant was not adequately advised of his right to a jury trial during the providency hearing and this deficiency rendered his 1971 conviction for second degree burglary constitutionally invalid. The habitual criminal count alleging the 1971 conviction accordingly was dismissed. The court denied the defendant's motion to dismiss the other habitual criminal counts.

The prosecution then presented its evidence before the jury on the two remaining counts relating to the 1973 and 1975 convictions for second degree burglary. At the conclusion of the prosecution's case the court stated that it would "direct a verdict in favor of the defendant." The court reasoned that the substantive count, which charged second degree burglary of a building on March 23, 1980, was a class 4 felony carrying a presumptive sentence of two to four years, section 18-1-105(1)(a), C.R.S.1973 (1980 Supp.), and, therefore, it did not satisfy those terms of the habitual criminal statute which required the substantive offense to be a felony "for which the maximum penalty prescribed by law exceeds five years...." Section 16-13-101(1), C.R.S.1973 (1980 Supp.).

The People on this appeal challenge the trial court's dismissal of the habitual criminal charges and argue that, if those rulings of dismissal were erroneous, the habitual charges should be reinstated and the defendant should be retried before a different jury. First we consider the constitutional validity of the defendant's 1971 burglary conviction, next the issue whether the class 4 felony of second degree burglary of a building qualifies under the habitual criminal statute as a felony punishable by a penalty in excess of five years, and lastly the double jeopardy considerations underlying the prosecution's request for a retrial.

II.

A conviction obtained in violation of a defendant's right to counsel cannot be admitted in a subsequent criminal proceeding either to support guilt or to enhance punishment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); see also Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (uncounseled conviction inadmissible for purpose of impeaching defendant's credibility). In People v. Roybal (Roybal I), Colo., 618 P.2d 1121 (1980), we held that in a prosecution for Driving After Judgment Prohibited, a defendant may collaterally attack the constitutional validity of an uncounseled traffic offense conviction resulting 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 collateral attack to guilty pleas that were not "voluntarily and understandingly made." People v. Roybal (Roybal II), Colo., 617 P.2d 800, 802 (1980).

The right to collaterally attack the constitutional validity of a prior conviction applies equally to habitual criminal proceedings. Burgett v. Texas, supra; People v. Lake, 195 Colo. 454, 580 P.2d 788 (1978); see also Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). Upon challenging the validity of the prior conviction, the defendant's burden is to make a prima facie showing that the challenged conviction was unconstitutionally obtained; when such showing is made, the conviction is not admissible unless the prosecution establishes by a preponderance of evidence that the conviction was obtained in accordance with the defendant's constitutional rights. People v. Mascarenas, supra; People v. Shaver, Colo., 630 P.2d 600 (1981); People v. DeLeon, Colo., 625 P.2d 1010 (1981); Roybal I, supra.

In this case the trial court based its dismissal of the count alleging the 1971 burglary conviction on the ground that the judge during the providency hearing did not adequately advise the defendant of his right to a trial by jury and, therefore, the defendant's guilty plea was not voluntarily and understandingly made. With respect to the issue raised on this appeal, a prima facie showing means evidence which, when considered in a light most favorable to the defendant and all reasonable inferences are drawn in his favor, will permit the court to conclude that the defendant pled guilty without voluntarily and understandingly waiving his right to a trial by jury. See People v. Mascarenas, supra; People v. Shaver, supra.

The record in this case does not measure up to a prima facie showing of constitutional invalidity in connection with the defendant's plea of guilty. The court register affirmatively establishes that on August 19, 1971, the defendant was present in open court when the case was set for a jury trial. The reporter's transcript discloses that on the next day, with his attorney present, the defendant tendered a plea of guilty and acknowledged during the providency hearing that he was pleading guilty because he was in fact guilty, and that by so pleading he would not have a "trial." Never having requested a court trial, the right being waived obviously was the right to a trial by jury accorded the defendant on the previous day. The defendant's attorney told the judge during the providency hearing that the defendant...