People v. Rael, 83CA0506
| Decision Date | 05 April 1984 |
| Docket Number | No. 83CA0506,83CA0506 |
| Citation | 681 P.2d 530 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Leroy RAEL, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Goranson, Philibosian & Gunther, P.C., Roger W. Westlund, Denver, for defendant-appellant.
Defendant appeals from an order denying his Crim.P. 35 motion. He alleges that he was denied effective assistance of counsel and that the sentence was excessive and illegal. We affirm in part, reverse in part, and remand with directions.
Pursuant to a plea agreement whereby the prosecution agreed to dismiss four other counts, defendant pled guilty to child abuse resulting in death, a class three felony. The court sentenced the defendant to fifteen years plus one year of parole which exceeded the presumptive range for a class three felony.
The defendant appealed the sentence alleging that he had been denied effective assistance of counsel and that the sentence was unjustified. This court refused to consider the ineffective assistance claims because they were not raised in the trial court. The sentence was otherwise affirmed. People v. Rael, (Colo.App. No. 82CA0163, January 27, 1983) (not selected for official publication).
In April 1982, defendant filed three successive motions for post-conviction relief. The trial court denied the motions without a hearing and failed to enter findings of fact or conclusions of law.
Defendant first contends that the record demonstrates ineffective assistance of counsel relative to pre-trial preparation, plea advice, and sentencing. The prosecution asserts that the record refutes these claims and, alternatively, that the case should be remanded for a hearing. We hold that defendant's allegations concerning counsel's plea advice warrant a hearing.
In a Crim.P. 35 proceeding the court must grant a hearing unless the record clearly establishes that defendant is not entitled to relief or that the motion lacks factual allegations sufficient to support a constitutional claim. Crim.P. 35(c)(3); People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976).
Generally, trial counsel's erroneous assessment of the probable sentence does not constitute ineffective assistance of counsel; however, a statement of promise as to the sentence to be imposed, rather than an expression of opinion only, may constitute such ineffective assistance. United States ex rel. Scott v. Mancusi, 429 F.2d 104 (2d Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971). And, deliberate misrepresentations concerning sentencing which induce a guilty plea may also constitute ineffective assistance. See Mosher v. LaVallee, 351 F.Supp. 1101 (S.D.N.Y.1972), aff'd, 491 F.2d 1346 (2d Cir.1974), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); I ABA, Standards for Criminal Justice Standard, 4-5.1(b) (2d ed. 1982). Here, defendant alleged that counsel advised him to accept the plea bargain and stated he "knew that the court would not aggravate/increase the maximum sentence." (emphasis added)
Defendant's allegation raises a factual issue concerning the propriety of counsel's plea advice, i.e., whether the statement was in fact made as alleged, and if so, was it a promise or a deliberate misrepresentation which caused defendant to plead guilty. Because this allegation concerns events occurring outside the record, we decline the prosecution's invitation to assume that defendant's providency inquiry dispelled the effects of the allegedly tainted advice. See Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967).
Defendant also contends that his sentence was illegal and excessive because the trial court erred in finding...
To continue reading
Request your trial
-
People v. Zuniga
...sentencing does not constitute ineffective assistance of counsel. People v. Chavez, 902 P.2d 891 (Colo.App. 1995); People v. Rael, 681 P.2d 530 (Colo. App.1984); cf. People v. Adams, 836 P.2d 1045 (Colo.App.1991)(the duty of defense counsel is to discuss the case with complete candor and to......
-
People v. Sifuentes
...was not a citizen.) Indeed, the DiGuglielmo division distinguished its decision from another case on that very basis. See 33 P.3d at 1252 (" Rael is distinguishable because there is no indication in that opinion whether the trial court had advised the defendant there about the issue that wa......
-
People v. Morones-Quinonez
...the fact that the standard plea form used in Kentucky courts provided notice of possible immigration consequences); People v. Rael, 681 P.2d 530, 532 (Colo.App.1984) (where counsel's advice may have amounted to a promise of a particular sentence, court would not "assume that defendant's pro......
-
White v. Denver Dist. Court, Div. 12
...497, 499, 549 P.2d 1312, 1313 (1976) (quoting People v. Hutton, 183 Colo. 388, 391, 517 P.2d 392, 394 (1973)); accord People v. Rael, 681 P.2d 530, 532 (Colo.App.1984); see People v. Muniz, 667 P.2d 1377, 1380 (Colo.1983) (defendant is entitled to judicial review of Crim.P. 35 motion so lon......
-
Chapter 8 - § 8.3 • COLLATERAL ATTACKS ON CONVICTIONS
...the defendant to plead guilty, the court may find prejudice. People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001); People v. Rael, 681 P.2d 530, 531 (Colo. App. 1984). A mere assessment of the likely sentence that proves erroneous does not constitute prejudice resulting from ineffect......