People v. Simpson, No. 00CA0475.

• Citation: 51 P.3d 1022
• Decision Date: 21 June 2001
• Docket Number: No. 00CA0475.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher T. SIMPSON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

51 P.3d 1022

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher T. SIMPSON, Defendant-Appellant.

No. 00CA0475.

Colorado Court of Appeals, Div. V.

June 21, 2001.

As Modified on Denial of Rehearing October 25, 2001.

As Corrected February 13, 2002.

Certiorari Granted July 22, 2002.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Kurt A. Metsger, Denver, CO, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Christopher T. Simpson, appeals from the trial court's order denying his Crim. P. 35(c) motion. We reverse and remand.

This conviction arose out of an altercation between defendant, a seventeen-year-old juvenile, and another juvenile while both were incarcerated at a detention facility. The other juvenile apparently provoked defendant and struck him first. A fight ensued, and officers attempted to intervene. Defendant grabbed a chair and swung it at the juvenile, hitting an officer on the hand.

Defendant was charged with second degree assault on a peace officer. Pursuant to § 19-2-517(1)(a)(IV), C.R.S.2000, the People filed an information directly in the district court, subjecting defendant to prosecution as an adult.

At defendant's arraignment, the trial court advised him of the right to counsel pursuant to Crim. P. 5. Defendant indicated to the court that he planned to obtain counsel; however, at a subsequent appearance he notified the court that he intended to proceed pro se.

At the providency hearing, the trial court advised defendant of his right to counsel and his forfeiture of various constitutional rights, including the right to an attorney, as a consequence of pleading guilty. Defendant responded that he understood these rights and that he desired to waive them. Thereafter, defendant entered a plea of guilty. However, defendant was neither represented by counsel nor was any parent, guardian, or other interested adult present at the providency hearing.

The trial court sentenced defendant to twelve years in the Department of Corrections (DOC) to be served consecutively to a sentence he was already serving.

Defendant filed a Crim. P. 35(c) motion claiming that the absence of a parent, guardian, or guardian ad litem (GAL) at the providency hearing rendered the plea invalid and that his constitutional rights were not waived knowingly and voluntarily. The trial court, however, disagreed and denied the motion.

I. Validity of Guilty Plea

Relying upon § 19-2-511(1), C.R.S. 2000, of the Children's Code, defendant contends that the trial court erred in failing to vacate his guilty plea because the absence of a parent, guardian, or guardian ad litem (GAL) at the plea hearing rendered the plea invalid. We disagree.

Section 19-2-511(1) expressly requires parental presence at a custodial interrogation, and failure to comply with this requirement results in the inadmissibility of incriminating statements. Nicholas v. People, 973 P.2d 1213, 1219 (Colo.1999).

However, this appeal does not involve suppression of statements or waiver of counsel at an interrogation; rather, it involves the validity of defendant's guilty plea. Because the plain language of § 19-2-511(1) only refers to procedures which must be followed to ensure the admissibility of a juvenile's statements made during a custodial interrogation, we proceed no further with this contention. We agree with the trial court that the statute is not applicable here. See People v. Rea, 7 P.3d 995, 998 (Colo.App.1999)

.

II. Knowing and Voluntary Waiver

However, we do agree with defendant's contention that the trial court erred in failing to set aside his guilty plea because he did not enter it knowingly and voluntarily.

A presumption of validity attaches to a judgment of conviction. People v. Vigil, 983 P.2d 805 (Colo.App. 1999).

In adult criminal proceedings, the Fourteenth Amendment's due process clause requires the court to determine whether a defendant knowingly and voluntarily entered a valid guilty plea. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969); People v. Schneider, 25 P.3d 755 (Colo.2001); People v. Weed, 830 P.2d 1095, 1097 (Colo.App.1991).

Juveniles are equally "entitled to rely upon the guarantee of fundamental fairness inherent in the due process clauses of the federal and Colorado constitutions when asked to admit the commission of criminal acts." People v. M.A.W., 651 P.2d 433, 436 (Colo.App.1982); see also In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548 (1967)

(extending due process protection, such as right to counsel, to juveniles). As with adults, a juvenile's guilty plea is only valid if it is entered knowingly and voluntarily. People v. Cunningham, 678 P.2d 1058, 1061 (Colo.App.1983).

The Supreme Court has expressed special concern for protecting the constitutional rights of juveniles in criminal proceedings due to their immaturity and limited mental capacity to understand their legal rights. See In re Gault, 387 U.S. at 55, 87 S.Ct. at 1458, 18 L.Ed.2d at 561

(if counsel is not present in custodial interrogation involving juvenile, "the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair"); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212-13, 8 L.Ed.2d 325, 329 (1962)(where juvenile subjected to custodial interrogation without parent or counsel, "[h]e cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.... A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators."); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-04, 92 L.Ed. 224, 228 (1948)(in finding that fifteen-year-old did not knowingly and voluntarily waive right to counsel, Court stated, "[w]hat transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. . . . He needs counsel and support if he is not to become the victim first of fear, then of panic.").

Similarly, it is well recognized in Colorado, both in civil and criminal law, that juveniles are presumed to have less capacity than adults to understand their rights and privileges. See, e.g., Colo. Const. art. VII, § 1 (person under eighteen has no right to vote); § 13-22-101, C.R.S.2000 (person under eighteen does not have competence to enter into contracts, to manage estates, to sue and be sued, or to make decisions regarding his or her own body, such as donating blood or organs); § 14-2-106(1)(a)(I), C.R.S.2000 (person under eighteen needs to obtain parental consent before receiving marriage license); § 19-2-511(1), (juveniles subjected to custodial interrogation required to have parent or guardian present before waiving right to counsel); C.R.J.P. 3(a) (advisement for juveniles entering plea requires presence of a parent or guardian at initial appearance); Nicholas, 973 P.2d at 1219 (recognizing that children have less capacity than adults to understand legal rights and therefore need special assistance).

In acknowledging this special need to protect a juvenile's legal rights, additional safeguards, such as the mandatory presence of a parent, guardian, or counsel, have been established or recommended to ensure that a juvenile knowingly and voluntarily waives his or her constitutional rights. Model Rules for Juvenile Courts RULE 39 (1969)(advocating that waiver of right to counsel be made in the presence of parent, guardian or custodian); Institute of Judicial Administration — American Bar Association, Juvenile Justice Standards Annotated §§ 3.6, 3.7, 5.1, 6.1, 6.2 (ROBERT E. SHEPARD, Jr. ed., 1996) (recommending that the right to counsel not be waivable, that only mature juveniles may waive other rights after consultation with both counsel and parent, and that a juvenile court not accept a guilty plea unless juvenile has been given effective assistance of counsel and court inquires from parents who are present in court whether they concur in the plea decision); Penelope Alysse Brobst, The Court Giveth and the Court Taketh Away: State v. Hernandez — Returning Louisiana's Children to an Adult Standard, 60 La. L.Rev. 605, 614 n. 81 (2000)(noting that thirteen states require parental presence in custodial interrogations); Minnesota Supreme Court Advisory Task Force on the Juvenile Justice System: Trial Report January 1994, 20 Wm. Mitchell L.Rev. 595, 605-06 (1994)(recommending mandatory counseling for juveniles charged with felonies prior to waiver of counsel or entry of plea and procedures to promote parent's or guardian's participation in these decisions); see — also Wallace J. Mlyniec, A Judge's Ethical Dilemma: Assessing a Child's Capacity to Choose, 64 Fordham L.Rev. 1873, 1909 (1996)(based on child development theories, recommending that courts engage in an "informed consent dialogue" with juveniles to determine whether they are in fact knowingly and voluntarily waiving their constitutional rights).

With respect to the validity of a guilty plea for an adult, Crim P. 11 prescribes procedures that a court must follow to assure that constitutional requirements are met. An affirmative showing of compliance with Crim. P. 11 is generally sufficient to satisfy due process. People v. Drake, 785 P.2d 1257, 1268 (Colo.1990); People v. Chippewa, 713 P.2d 1311, 1313 (Colo.App.1985), aff'd, 751 P.2d 607 (Colo.1988).

Although no formalistic litany is required before a court may accept a plea of guilty, the record as a whole must demonstrate the trial court has made the defendant aware of his or...