Young v. People

• Decision Date: 02 July 2001
• Docket Number: No. 00SC240.,00SC240.
• Citation: 30 P.3d 202
• Parties: Michael YOUNG, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

30 P.3d 202

Michael YOUNG, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 00SC240.

Supreme Court of Colorado, En Banc.

July 2, 2001.

As Modified on Denial of Rehearing August 20, 2001.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, Attorneys for Petitioner.

Ken Salazar, Attorney General, Christine Cates Brady, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, CO, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

Defendant, Michael Shane Young, claims that his plea of guilty was infirm because the trial court did not advise him of the mandatory parole consequences of a sentence to incarceration at the time of the providency hearing. In analyzing Defendant's claims, we first restate the proposition that mandatory parole is a direct consequence of a plea of guilty to a felony that could carry a prison sentence. Hence, the trial court must so advise the defendant at the providency hearing, although the failure to do so may be harmless error. Even if the parties have reached a stipulated plea agreement contemplating a sentence to probation or community corrections, the providency advisement must include both the possible incarceration sentence and the attendant mandatory parole, because those are the penalties the court may impose as a result of the guilty plea. Although the trial court did err in this case in failing to advise the defendant of mandatory parole, the error was harmless because the defendant's sentence to incarceration and associated mandatory parole fit within the scope of the sentence that the trial court advised the defendant he risked receiving as a result of his guilty plea. Accordingly, we affirm the court of appeals' decision in People v. Young, No. 98CA791, (Colo.App. Dec. 16, 1999) (not selected for official publication), upon somewhat different reasoning.

I.

On January 14, 1994, in Case No. 93CR696, Michael Shane Young (Young) pleaded guilty to first degree criminal trespass, a class 5 felony pursuant to section 18-4-502, 6 C.R.S. (2000), and misdemeanor criminal mischief, a class 2 misdemeanor pursuant to section 18-4-501(1), 6 C.R.S. (2000). At the providency hearing the trial judge advised Young that the class 5 felony carried a presumptive sentence from one to three years in the Department of Corrections (DOC) plus two years of mandatory parole. On April 4, 1994, the trial court sentenced Young to six years probation.

The following year, in Case No. 95CR95, the State charged Young with sale of a schedule II controlled substance, a class 3 felony in violation of section 18-18-405(2)(a)(I), 6 C.R.S. (2000), and attempted sale of a schedule II controlled substance, a class 4 felony in violation of section 18-2-101, 6 C.R.S. (2000). On August 21, 1995, Young pled guilty to attempt to commit the crime of unlawful sale of a schedule II controlled substance. The plea agreement included a stipulated sentence of five years in DOC. Additionally, Young agreed to confess to the State's motion to revoke his probation violation allegation in 93CR696. At the providency hearing, the trial court stated to Young that "the parties here have agreed that you would be sentenced to prison, if you do plead guilty, for five years. I don't have to accept that agreement, and I say that because I will know more about the case and more about you at the sentencing hearing." The court advised Young that he could be sentenced within a range of two to six years, or, upon a finding of extreme aggravating circumstances, up to twelve years. The trial court failed to advise the defendant of a mandatory parole period.

The trial court sentenced Young to community corrections for concurrent terms of three and six years. Although both the mittimus and the transcript of the sentencing proceeding indicate that the trial court imposed a sentence of six years to community corrections, the minute order entered after sentencing reflects a sentence of five years to community corrections. The trial court later acknowledged that the correct sentence was five years in community corrections.

Because the community corrections facility had a wait list, the court remanded Young into custody until bed space became available. While Young awaited entrance into community corrections, the State filed a Motion to Terminate and Transfer Custody. The motion alleged that Young had "violated the terms and conditions of his sentence" because "while awaiting placement at Community Corrections, the defendant's motivation level and attitude toward supervision has significantly deteriorated and poses a substantial risk of management-related difficulties."

The trial court accepted that Young was no longer appropriate for community corrections, and held a hearing at which he transferred Young's two sentences to five years in DOC and three years in DOC to be served concurrently. In imposing the sentence, the court mentioned that, "There is a period of parole prescribed by the statute." The court's mittimus stated "DOC 5 years. Statutory parole."

On November 21, 1997, Young filed a Crim. P. 35(c) motion requesting that his five year sentence to DOC be reduced because the district court did not advise him of the mandatory parole period when he pleaded guilty in that case. The district court denied the motion. Young appealed, arguing that his five year DOC sentence should be reduced to two years of incarceration plus three years of mandatory parole to comport with his reasonable understanding of the 1995 plea agreement. The court of appeals, relying on People v. Johnson, 987 P.2d 928 (Colo.App.1999), rev'd, 13 P.3d 309 (Colo. 2000), reversed the district court's order and remanded for resentencing. People v. Young, No. 98CA791, (Colo.App. Sept. 16, 1999) (not selected for publication).

The State subsequently filed a petition for rehearing, and the court of appeals ultimately concluded that any error in the advisement was harmless under Craig v. People, 986 P.2d 951 (Colo.1999), because the trial court's advisement to Young of the maximum available sentence of imprisonment was sufficient to include his DOC sentence and mandatory parole. People v. Young, No. 98CA791, (Colo.App. Dec. 16, 1999) (not selected for publication).

II.

A.

We deal in this case, as we have in a number of other recent cases, with the requirements for advisements of defendants entering pleas of guilty to pending criminal charges. The simple premise with which we must begin is that a defendant must understand the effect of his plea in order to be deemed to have entered such plea knowingly, voluntarily and intelligently.

Because of the nature of criminal proceedings, the responsibility for documenting on the record that level of understanding falls primarily on the trial court. Accordingly, Crim. P. 11 outlines the nature of the necessary advisement for a sufficient plea of guilty.

However, that simple premise quickly fractures into a series of questions and dilemmas, some of which we have addressed previously in our case law and others of which continue to arise. We here recite the principles that guide our resolution of these questions.

First, Colorado requires a mandatory period of parole for all class 2 through class 6 felony convictions involving a sentence to a term of imprisonment. § 18-1-105(a)(V)(A), 6 C.R.S. (2000). Mandatory parole is a direct and automatic consequence of a sentence to DOC, and during that period of parole, the defendant remains at risk of reincarceration.¹ Accordingly, it makes sense that to understand the "possible penalty or penalties" as required by Crim. P. 11, the court must advise the defendant of mandatory parole. Benavidez v. People, 986 P.2d 943, 950 (Colo. 1999).

Second, in determining whether or not a defendant received a proper Crim. P. 11 advisement, we look to whether the record as a whole shows that defendant received sufficient information as to be fairly placed on notice of the matter in question. Benavidez, 986 P.2d at 950. If the Crim. P. 11 advisement indicates an affirmative waiver by the defendant, then he has the burden to prove, by a preponderance of evidence, the ineffectiveness of his apparent waiver. Craig, 986 P.2d at 964.

Third, if the advisement is infirm, then the court will determine whether it can correct the error. If the incarceration time to which the court sentenced defendant plus the period of mandatory parole fits within the range of the sentence that the trial court advised the defendant he was "at risk of receiving," then we deem the error harmless. Specifically, "the error is harmless if the prison sentence imposed and the mandatory parole term, combined, do not exceed the prison time the defendant was advised of and risked receiving." Benavidez, 986 P.2d at 948. The substituted prison sentence and the parole term, combined, cannot exceed the prison time the defendant was advised of and risked receiving. Id. If the error cannot be corrected, the defendant can withdraw his plea. Craig, 986 P.2d at 964.

Further, we have clarified that the interpretation and implementation of a plea agreement² between the People and the defendant is separate from the inquiry of whether the defendant has been properly advised of the possible consequences of his plea. The latter inquiry relates to the court's responsibility to assure that the defendant understands what the consequences of his plea could be.

More importantly, the Rules of Criminal Procedure clearly presume that a trial court is not bound by "any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any." Crim. P. 11(b)(5). The Rule further amplifies that the judge in "every case should...