Smith v. People, 22057
Decision Date | 22 May 1967 |
Docket Number | No. 22057,22057 |
Parties | Forrest Lee SMITH, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
Court | Colorado Supreme Court |
Donald W. Stacey, Grand Junction, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.
This matter is here on a writ of error directed to the ruling of the trial court denying Smith's (plaintiff in error) motion to vacate and set aside his sentence under Colo.R.Crim.P. 35(b). The trial court denied the relief sought without a hearing.
The motion to vacate the judgment of guilty alleges, Inter alia, the following: That Smith entered a plea of guilty to a charge of forgery on March 23, 1965; that on April 1, 1965, he was sentenced to a term of not less than ten and no more than fourteen years in the Colorado State Penitentiary that the court accepted his plea of guilty while defendant was without counsel; that he 'was coerced into entering a plea of guilty'; and that the probation officer of Mesa County exceeded his authority when he recommended the sentence and punishment which this court imposed.
The SUMMARY OF ARGUMENT assigns three errors which can be summarized as follows:
1. The trial court erred in denying defendant's motion to vacate sentence without a hearing, since 'The existence or non-existence of coercion cannot be determined without going beyond the record in the trial court.'
2. The court should have appointed counsel prior to accepting a guilty plea, since he did not understandingly and intelligently waive his right to counsel.
3. That he 'was deprived of his constitutional rights in that the Probation Officer exceeded his statutory authority in recommending to the Court that Defendant receive a maximum sentence.'
Assignments of error 1 and 2 are so interrelated in the record of this case that they will be discussed together. Rule 35(b) requires the trial court to cause notice of the motion to vacate 'to be served on the prosecuting attorney,' and 'grant a prompt hearing,' 'Unless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief * * *.' (Emphasis added.)
The question thus presented to us in determining the correctness of the trial court's ruling is: Did The motion, the files and The record contain sufficient evidence, in and of themselves, to justify the court in ruling as it did?
The motion, prepared by the defendant pro se, contains these statements:
'(B) On or about March 23, 1965, the defendant entered his plea of guilty to the charge of Forgery, and in so doing, pending charges against him was withdrawn and dropped.
'(E) That defendant was coerced into entering a plea of Guilty to the instant matter by the District Attorneys Office * * * by their promise of not filing any additional charges with respect to other checks defendant may have written prior. * *
'(F) * * * by the threat of Habitual Criminal (C.R.S.1953, 39--13--1). * * *'
The reporter's transcript of the proceedings on arraignment, so far as it relates to waiver of counsel, contains the following dialogue:
'(Thereupon the Defendant stood up).
'(Thereupon the Clerk read the Information).
The files also contain an 'affidavit' executed by Smith on March 31, 1965, before the probation officer, waiving his right to file an application for probation and requesting the court 'to proceed with the final hearing and disposition of this matter without further delay.'
The 'affidavit' concludes with this statement:
'There have been no threats or promises made to me regarding this matter and I have made the above waiver, refusal, and request as acts of my own free will and choice.'
The testimony of Detective Landry of the Grand Junction Police Department was used to sustain the burden of proof on a plea of guilty. It shows that on March 22, 1965, in the presence of Captain Abbey, the defendant signed a typed statement relating to the commission of the crime which opened with this preface:
At the conclusion of the statement appeared the following in Smith's own handwriting:
The files also contain the Presentence Report which discloses that Smith Information furnished to the probation officer by a relative confirmed the 'good grades' in high school and also his FBI record, in these words:
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Buccheri, Application of
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