People v. Shaver, 80SA98

• Decision Date: 06 July 1981
• Docket Number: No. 80SA98,80SA98
• Citation: 630 P.2d 600
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Allen SHAVER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 600

630 P.2d 600

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Allen SHAVER, Defendant-Appellant.

No. 80SA98.

Supreme Court of Colorado, En Banc.

July 6, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

David Allen Shaver (defendant) appeals his conviction for Driving After Judgment Prohibited, section 42-2-206, C.R.S.1973. The defendant claims that the statutory scheme of the Habitual Traffic Offender Act, section 42-2-201 et seq., C.R.S.1973, on which his conviction is based, violates due process of law and equal protection of the laws, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25, and the constitutional prohibition against cruel and unusual punishment, U.S.Const. Amend. VIII; Colo.Const. Art. II, Sec. 20. He also asserts that the trial court erred in prohibiting him from establishing the constitutional invalidity of three traffic offense convictions which formed the basis of an order of license revocation by the Department of Revenue (department). Although we find no merit in the defendant's constitutional challenges to the Habitual Traffic Offender Act, we conclude that the trial court failed to determine by appropriate standards the constitutional validity of the three traffic offense convictions underlying the order of revocation. We therefore reverse the judgment and remand for further proceedings.

I.

The crime of Driving After Judgment Prohibited is defined in section 42-2-206(1), C.R.S.1973, as follows:

"It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who is thereafter convicted of operating a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, is guilty of a class 5 felony."

A direct information filed against the defendant alleged that he committed the crime of Driving After Judgment Prohibited by operating a motor vehicle on January 20, 1978, in the City of Fort Morgan while there was still in effect an order of the department revoking his license as a habitual traffic offender. ¹ The defendant entered a not guilty plea to the charge. Prior to jury selection defense counsel advised the court that he intended to challenge the admissibility of the defendant's three traffic offense convictions underlying his license revocation as a habitual traffic offender.

The prosecution's case consisted of two witnesses, and several documents of the department. A Fort Morgan officer testified that he arrested the defendant on January 20, 1978, in Fort Morgan for driving a pick-up truck without a driver's license. The prosecution's other witness, an investigator for the department, was asked to identify several official records of the department pertaining to the defendant. These records included a written notice to the defendant of a revocation hearing and an order of August 30, 1976, revoking his driver's license for five years under section 42-2-203, C.R.S.1973, as a habitual traffic offender.

The defendant, outside the presence of the jury, objected to the admission of the order of revocation for the reason that the three traffic offense convictions supporting the revocation resulted from pleas of guilty in violation of his constitutional right to counsel and due process of law. The pleas were entered in the County Court of Morgan County to the three separate charges of driving under suspension, section 42-2-130(1)(a), C.R.S.1973 (1978 Repl. Vol. 8 and 1980 Supp.), all of which occurred within the requisite statutory period preceding the departmental order of revocation. Driving under suspension is a misdemeanor and carries a possible sentence of six months, with a mandatory minimum five day sentence in the absence of an emergency. The defendant received a jail sentence in each case. The register of actions for each case contained a space for the name of the defendant's attorney but the spaces were blank, thus indicating that the defendant was not represented by counsel. A document entitled "jail mittimus" recited, in each instance, that "David Allen Shaver has this day been examined before Judge E. H. Brandenburg in and for the County aforesaid, on a charge of (d)riving under suspension preferred against him on complaint of Guy F. King which charge was distinctly read to the said David Allen Shaver to which he pled guilty ...." ² Both the prosecution and the defendant stipulated that the tape recordings of the providency hearings on the defendant's guilty pleas had been erased. With permission of the court, defense counsel was permitted to supplement the record of his objection to the admission of the order of revocation by later calling the defendant as a witness outside the presence of the jury. The defendant testified that on each occasion when he pled guilty to the traffic offenses in question, he was not represented by an attorney.

The trial record contains no ruling by the court on the issue of whether the defendant made a prima facie showing that the three traffic offense convictions were obtained in violation of the defendant's right to counsel or in violation of due process of law. The trial court denied the defendant's objection to the admission of the order of revocation because, in its words, "they (traffic offenses) are not even your regular type of criminal misdemeanor act (and) Rule 11 doesn't even apply to six months in jail and a money fine."

The jury found the defendant guilty as charged and the court sentenced him to the Colorado State Reformatory for an indeterminate period not to exceed 21/2 years.

II.

Initially we address the defendant's arguments that the statutory scheme of the Habitual Traffic Offender Act violates due process of law, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25, equal protection of the laws, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25, and the prohibition against cruel and unusual punishment, U.S.Const. Amend. VIII; Colo.Const. Art. II, Sec. 20. Each of these claims has been resolved adversely to the defendant by recent decisions of this court.

A.

The defendant's due process claim is twofold. First he contends that the departmental hearing which resulted in the revocation of his license was a critical stage of the criminal prosecution against him for Driving After Judgment Prohibited and the statutory scheme for revocation proceedings under the Habitual Traffic Offender Act fails to provide those basic constitutional rights necessary for criminal prosecutions, including the right to counsel, the right to compulsory process for attendance of witnesses, and the right of confrontation and cross-examination.

We rejected an identical claim in People v. McKnight, Colo., 617 P.2d 1178, 1183-84 (1980), where we held:

"The administrative proceeding to revoke a driver's license because of habitual traffic offender status is a civil one. People v. Able, Colo., 618 P.2d 1110 (1980). The only immediate consequence of a determination that the licensee is a habitual traffic offender is a loss of his driver's license for a period of five years. Section 42-2-205, C.R.S.1973. Thus, the constitutional protections afforded criminal defendants need not be provided to the licensee in such a proceeding.

"We conclude that the D.M.V. (Division of Motor Vehicles) administrative hearing which results in license revocation pursuant to section 42-2-203, C.R.S.1973, is not a 'critical stage' of the prosecution for Driving After Judgment Prohibited. That hearing, therefore, need not be conducted as a criminal trial. This is true even though the administrative determination is an element of the criminal charge."

Accord, People v. DeLeon, Colo., 625 P.2d 1010 (1981).

The defendant bases his second due process argument on the proposition that the department's records do not establish that he was ever informed that an act of driving during the period of his five year revocation would subject him to a felony prosecution. We disposed of this argument also in People v. McKnight, supra, where we held that "(t)he requirements of due process are satisfied by the notice which is given through publication of the statutes." Supra 617 P.2d at 1186. Therefore, the department is not required to notify persons adjudged habitual traffic offenders of the possible criminal penalty for driving in violation of the order of revocation. Id.; People v. DeLeon, supra.

B.

The defendant claims an equal protection violation by virtue of the failure of the Habitual Traffic Offender Act to provide procedural protections similar to those required in a prosecution under the Habitual Criminal Act, sections 16-13-101 to 103, C.R.S.1973 (1978 Repl. Vol. 8 and 1979 Supp.). In People v. McKnight, supra, we held that the differences in procedures between a license revocation proceeding and those procedures applicable to a habitual criminal prosecution are reasonably related to legitimate state objectives. The subject matter addressed by these statutes is so different and the policy considerations underlying each statutory scheme are so distinct that "we cannot find the classifications unreasonable or lacking in a rational relationship to legitimate state objectives." People v. McKnight, supra, 617 P.2d at 1186; People v. DeLeon, supra.

C.

The defendant asserts that section 42-2-206(1), C.R.S.1973, constitutes cruel and unusual punishment because it punishes Driving After Judgment Prohibited as a class 5 felony with a term of confinement from one day to five years, with no possibility of a partial suspension of sentence or probation. We considered this argument in People v. Scott,...