People v. Wilbur, 92CA0999
| Decision Date | 19 August 1993 |
| Docket Number | No. 92CA0999,92CA0999 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael C. WILBUR, Defendant-Appellant. . IV |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Callaway & Turner, John Turner, Colorado Springs, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Michael C. Wilbur, appeals the order of the trial court denying his Crim.P. 35(c) motion. We reverse and remand with directions.
Defendant entered pleas of guilty to one count each of first degree burglary, aggravated robbery, first degree sexual assault, first degree kidnapping, and crime of violence, in exchange for the dismissal of the remaining charges and a stipulated sentence of an 18-year term of incarceration.
During the providency hearing, after defendant had been advised of the elements of the offenses and the possible penalties and had assured the court that he understood his rights and wished to waive them, the following colloquy occurred:
The Court: You're going to go down to the State penitentiary to the Department of Corrections in Canon City for 18 years.
Now, in reality, with the good time law the way it is, you'll get--that will be about a nine year sentence, and you will also get credit for this time you have been in the county jail. You get over two years of your sentence basically knocked off already 'cause you have been in the county jail for over a year, or State Hospital.
Defendant: Well, almost eighteen months.
The Court: Huh? Eighteen months?
Defendant: Almost eighteen months.
The Court: So that's almost three years, then, on your sentence that's already been served, with the good time law the way it is.
But you are going to be down there for a significant length of time under today's standards.
Defendant: Yeah.
The Court: Do you understand that?
Defendant: Yes, sir.
No objection to the court's advice to the defendant was registered by the prosecutor.
Thereafter, defendant formally tendered, and the court accepted, his guilty pleas.
However, after the entry of his plea, the parole board determined that parole was discretionary, not mandatory, for sex offenders. That interpretation of the pertinent statute was affirmed in Thiret v. Kautzky, 792 P.2d 801 (Colo.1990). As a result of this interpretation of the statute, defendant may be required to serve the full 18-year sentence on his first degree sexual assault conviction, contrary to the explicit advice given to him by the sentencing court.
Defendant, therefore, filed a Crim.P. 35(c) motion, asserting that his plea had been made unknowingly, and therefore, it had been involuntarily entered, because it was based upon the trial court's advice with respect to the sentence. As a remedy, he asked that his sentence for this conviction be reduced so as to reflect the terms of the plea bargain as it was interpreted at the time of his sentencing.
A hearing on defendant's motion was held, and defendant's former counsel testified that, prior to sentencing, he had advised defendant that he would serve only approximately one-half of the sentence that he had agreed to. This was consistent with defendant's testimony which reiterated his understanding of the plea agreement, as explained by the providency court.
However, the court that heard defendant's Crim.P. 35(c) motion determined that he had bargained for and received an 18-year sentence. Thus, that court concluded that, while defendant may have expected to serve only nine years, he had received no guarantee that that would be true. Accordingly, defendant's motion was denied.
I.
On appeal, defendant contends that the trial court erred in finding that his plea was not based on an agreement that he would serve only nine years under the good time law. We agree.
When attacking a conviction by a motion for post-conviction relief, a defendant must establish by a preponderance of the evidence that the conviction is invalid. People v. Brewer, 648 P.2d 167 (Colo.App.1982).
Unless there is no record support for the factual findings of the Crim.P. 35(c) court, that court's determination may not be disturbed on appeal. Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971).
A guilty plea must be knowing, intelligent, and voluntary before the plea may form the basis for a judgment of conviction. Wilson v. People, 708 P.2d 792 (Colo.1985). And, a defendant has a constitutional right to be treated with fairness throughout the plea bargaining process. People v. Fisher, 657 P.2d 922 (Colo.1983).
If a defendant has reasonably relied to his detriment on a promise made by the People, he is entitled to have that promise enforced. People v. Fisher, supra. And, in determining whether the terms of a plea agreement have been met, a court must consider defendant's legitimate expectations arising from the...
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