Vanderhoof v. People, 20335

• Citation: 380 P.2d 903,152 Colo. 147
• Decision Date: 22 April 1963
• Docket Number: No. 20335,20335
• Parties: Archie Lyle VANDERHOOF, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 903

380 P.2d 903

152 Colo. 147

Archie Lyle VANDERHOOF, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20335.

Supreme Court of Colorado, En Banc.

April 22, 1963.

Plaintiff in error, pro se.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., Denver, for defendant in error.

DAY, Justice.

Plaintiff in error was charged in a criminal information with four counts of indecent liberties as defined in C.R.S. '53, 40-2-32. Upon agreement with the district attorney to withdraw the 1st, 3rd and 4th counts of the information--which was done--defendant entered a plea of guilty to the second count. Whereupon the procedures in 1960 Perm.Supp., C.R.S. 39-19-1, were initiated by the court, and defendant was sentenced pursuant to the latter statute, familiarly known as the sex offenders act, to not less than one day nor more than life in the state penitentiary.

On January 17, 1962, pursuant to the post conviction remedies provided in Rule 35(b), Colorado Rules of Criminal Procedure, Vanderhoof filed a petition in the district court to correct the judgment and sentence heretofore imposed upon him and prayed in his petition that he be sentenced pursuant to the penalty as provided in C.R.S. '53, 40-2-32, wherein it is stated that for conviction of the count in the information to which defendant entered his plea of guilty sentence shall be for a term of not more than ten years. The petition to correct the sentence and judgment was denied. Defendant filed a motion for new trial pursuant to Rule 33, Colorado Rules of Criminal Procedure, and that motion was denied. It is from denial by the court of the relief sought that plaintiff in error has sued out this writ of error.

The main contention of Vanderhoof in the trial court is that C.R.S. '53, 39-19-1, is unconstitutional. His contentions in this regard have already been answered by this court in a recent case of Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655, decided December 26, 1961, wherein on the point urged here the court said:

"The application of the sex offenders act to petitioner is unlawful and resulted in a denial of the equal protection of the law.' The differential in sentences that may be imposed under the two acts furnishes the basis for this contention.

'Generally, statutes which prescribe different punishments for the same violations committed under the same circumstances by persons in like situations are void as violative of the equal protection of the laws. Equal treatment under the law is a right constitutionally afforded citizens.

'Statutes similar to the one under consideration have been held not repugnant to the equal protection provision. Stae v. Evans, 73 Idaho 50, 245 P.2d 788; Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, 126 A.L.R. 530. In these decisions it is recognized that the state has the right 'through its legislature, to classify persons * * *, based upon reasonable and natural distinctions, to accomplish the legitimate purposes of its police power,' in fixing the differing penalties. State v. Evans, supra [73 Idaho 50, 245 P.2d 790].'

While agreeing with the right of the state through its legislature to classify persons and property based upon reasonable and natural distinctions to accomplish for legitimate purposes its police power, plaintiff in error contends that the classification is 'unreasonable, arbitrary and capricious because the classification is determined by the discretion of the district court acting solely in its own opinion.' With this contention we cannot agree. The classification is not determined by the trial court. The classification is set out in the act, and the trial court merely makes a finding of fact to determine whether or not defendant comes within the classification. This is not a violation of equal protection principles of the constitution.

There is another ground, however, upon which plaintiff in error is entitled to the relief sought. At the time of his arraignment the defendant was not advised by the court that one of the consequences of his plea might be the imposition of a life sentence as provided in the statute under which defendant is confined. The arraignment proceedings reveal that the following took place:

'The Court: All right. The order of the Court will be that the defendant is permitted to withdraw each and every plea heretofore entered to each and all counts. Therefore, he now stands with no plea entered on any count, and I will rearraign him on the second count.

'Will you acquiesce and concede the prior receipt of a copy of the information and a copy of the jury list?

'Mr. Dawkins: We do, your Honor.

'The Court: The...