People v. Stovall

• Decision Date: 21 June 2012
• Docket Number: No. 09CA0487.,09CA0487.
• Citation: 284 P.3d 151,2012 COA 7
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Joel Matthew STOVALL, Defendant–Appellant.
• Court: Colorado Court of Appeals

284 P.3d 151

2012 COA 7

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Joel Matthew STOVALL, Defendant–Appellant.

No. 09CA0487.

Colorado Court of Appeals, Div. III.

Jan. 19, 2012.

As Modified on Denial of Rehearing June 21, 2012.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Allison Ruttenberg, Boulder, Colorado, for Defendant–Appellant.

Opinion by Judge ROY.

¶ 1 Joel Matthew Stovall, defendant, appeals the trial court's orders denying his Crim. P. 35(a) and Crim. P. 35(c) motions. We affirm.

¶ 2 Specifically, defendant contends that (1) his plea was not knowing or voluntary because of the ineffective assistance of plea counsel; (2) the trial court erred in concluding that he was time-barred from challenging his non-class 1 felony convictions; and (3) his sentences were illegal because they required inconsistent findings of fact.

I. Claims Not Preserved

¶ 3 Defendant has asserted three claims of ineffective assistance of plea counsel that were not sufficiently presented to the trial court and, therefore, are not properly before us. See People v. Goldman, 923 P.2d 374, 375 (Colo.App.1996) (allegations not raised in a Crim. P. 35(c) motion or during the hearing on the motion are not properly preserved and may not be raised for the first time on appeal). These claims are that plea counsel rendered ineffective assistance by (1) failing to recognize and advise him of a viable constitutional challenge to a conviction for felony murder based on a predicate crime of petty offense escape (as contrasted with the statutory interpretation which is addressed later in this opinion); (2) failing to investigate whether the district attorney actually intended to seek the death penalty before the entry of his plea; and (3) not moving to withdraw the plea after the district attorney made a statement in open court that he could not ethically pursue the death penalty because, in his opinion, this was not a proper case and it was unlikely that the death penalty would be imposed. Further, defendant's allegations of justifiable excuse or excusable neglect for the untimeliness of his Crim. P. 35(c) motion as to the non-class 1 felonies were also not properly presented to the trial court and are not preserved for our review.

II. The Facts

¶ 4 The underlying events giving rise to the charges began when defendant shot and killed a neighbor's dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff contacted defendant and placed him under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant's twin brother (brother) then arrived on the scene carrying two concealed firearms and a handcuff key; he became aggressive toward the deputy and was arrested, handcuffed, and placed in the back seat of the patrol car without first being searched. While en route to the station, brother began to unlock his handcuffs and the deputy sheriff confiscated the key. After later removing one of his hands from the handcuffs, brother shot the deputy in the head killing him.

¶ 5 The patrol car ran off the road into a nearby ditch. Defendant and brother removed the deputy's body and attempted to steal the patrol car. However, they could not move the car because it was stuck in mud. Defendant and brother then walked to brother's nearby residence where they obtained additional weapons and ammunition. They then stole a pickup truck from a neighbor at gun point.

¶ 6 As the brothers were getting into the truck, two police officers approached in a patrol vehicle. Defendant fired at the patrol car at least eight times, twice striking the driver in his lower back and permanently paralyzing him. The brothers then fled in the stolen pickup truck.

¶ 7 During the next twenty-four hours, defendant and brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen different officers without striking them. After the pickup was disabled by police strips, the brothers ran into the surrounding woods where they remained overnight. They peacefully surrendered to a park ranger the next morning.

¶ 8 Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty as to either brother.¹ Pursuant to that agreement, defendant pled guilty to one count of felony first degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted after deliberation first degree murder,five counts of attempted extreme indifference first degree murder, and one count of aggravated robbery.

¶ 9 After accepting his plea, the trial court sentenced defendant to life without the possibility of parole for first degree murder; forty-eight years for each of the eighteen counts of attempted first degree murder (after deliberation and extreme indifference); and thirty-two years for aggravated robbery, all sentences to be served consecutively in the custody of the Department of Corrections. Cumulatively, the sentences amount to life without the possibility of parole consecutive to 896 years. The pleas were entered, and defendant was sentenced, thirty-five days after the shooting of the dog.

¶ 10 The prosecution appealed the trial court's refusal to award restitution. That appeal was dismissed in this court as untimely filed, and the mandate issued, and defendant's conviction became final, on January 2, 2004.

III. Ineffective Assistance of Counsel

¶ 11 Defendant first contends that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. He argues that plea counsel were ineffective because (1) they failed to inform him that escape from custody or confinement for a misdemeanor is a petty offense and could not be a predicate offense for felony first degree murder; and (2) they failed to properly investigate the case. We are not persuaded.

A. Waiver

¶ 12 Initially, the prosecution argues that defendant has waived any right to raise ineffective assistance of plea counsel based on the following term in the plea agreement:

The Defendant also acknowledges and agrees that in pleading guilty he voluntarily gives up the right to a preliminary hearing, a bond hearing, and to any possible defenses to the crimes charged. He also agrees to waive any Fourth, Fifth, or Sixth Amendment challenges concerning the nature of his arrest, any statements made by him, and any challenges to the effectiveness of his counsel. Defendant further stipulates that the facts stated in the synopsis are true and he waives the establishment of any further factual basis.

(Emphasis added.)

¶ 13 We conclude that defendant may challenge his guilty plea on the grounds of ineffective assistance of counsel when that challenge goes to the issue of whether the plea was knowingly, voluntarily, and intelligently entered despite the express waiver, and, therefore, disagree.

¶ 14 Defendant acknowledged the plea agreement waiver in his motion for postconviction relief but argued that it was unenforceable because the plea agreement had not been honored, relying on People v. McClellan, 183 Colo. 176, 179, 515 P.2d 1127, 1128 (1973). We decline to consider this argument because we conclude that the waiver is not enforceable here for a far more fundamental reason.

¶ 15 In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the defendant pled guilty to robbery and attempted murder and then commenced a habeas corpus proceeding in federal court challenging the systematic exclusion of African–Americans from grand jury service. He had not challenged the indictment before entering his guilty plea. The Supreme Court concluded that defendant's guilty plea foreclosed any inquiry into discrimination, stating:

We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity....

We thus reaffirm the principle recognized in the Brady trilogy [ ²]: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

411 U.S. at 267, 93 S.Ct. at 1607–08.

¶ 16 The same rule was announced in People v. Isham, 923 P.2d 190, 195 (Colo.App.1995), which dealt with the right of a defendant to his or her counsel of choice. The division stated that a guilty plea waives all nonjurisdictional objections, including fundamental Sixth Amendment rights, unless the claim relates directly to the adequacy of the plea. Adequacy in this context means knowing, voluntary, and intelligent.

¶ 17 We recognize that defendant expressly waived his right to assert ineffective assistance of counsel in the plea agreement. However, we conclude that he can raise such a claim as to the issues of whether the guilty plea was knowing, voluntary, and intelligent. See Mason v. United States, 211 F.3d 1065, 1069 (...