Chapter 2 - § 2.4 • REQUIREMENTS OF A VALID GUILTY PLEA

• Jurisdiction: Colorado

§ 2.4 • REQUIREMENTS OF A VALID GUILTY PLEA

§ 2.4.1—Summary

The federal and state constitutions require that a defendant be advised of certain matters before the court accepts a guilty plea. Crim. P. 11 and C.R.S. § 16-7-207(2) have expanded these requirements. Compliance with the statute and rule is mandatory and should ensure that constitutional due process has been met.

Pleas of guilty or no contest must be knowingly, intelligently, and voluntarily made. The court must be sure to advise the defendant of the elements of the offense and the possible penalties, and that there is a factual basis for the plea. The court must also ensure that pleas are not the result of undue pressure, threats, or coercion. If the defendant appears without counsel, a waiver of the right to counsel must be made on the record. If the defendant suffers from any evident mental incapacity, the court has an even greater obligation to ensure that any plea is knowingly and voluntarily made.

By pleading guilty, a defendant waives certain fundamental rights, including his or her right to a jury trial, the privilege against self-incrimination, and the right to confront witnesses. It is not necessary, however, that a defendant be advised of every constitutional and statutory right, as long as the provisions of Crim. P. 5 and 11 are followed.

Generally, there are three basic procedural prerequisites to a plea of guilty or nolo contendere that should be followed for a plea to be valid: (1) the plea should be made in open court; (2) the taking of the plea should be reported and a record should be made of the entire proceedings; (3) and the defendant should appear personally before the court and/or should be accompanied by his or her attorney, unless counsel is authorized to enter the plea on behalf of the defendant. See Crim. P. 11(c). The basic substantive requirement is that the plea must be intelligently and voluntarily made.

The advisement must be on the record. One of the purposes of the record is to demonstrate compliance with Crim. P. 11 in the event there is an attack on the validity of the plea at some future date. Failure to comply with the rule and statute may result in the plea's being vacated and the inability to impose sentence enhancement if collateral attacks are successful. Such attacks are addressed in § 8.3.

While the defendant may waive the formal reading of the charge, the court is not thereby relieved of the obligation to ensure that the defendant understands the charge. The degree of explanation of the charge depends on the complexity of the case.

It may not always be necessary to address the individual personally when accepting a plea, but if written forms are used, they must comply scrupulously with the requirements of the rule and statute.

It is not necessary to advise the defendant as to all possible collateral consequences of his or her plea (i.e., suspension, habitual traffic offender, etc.). The defendant need only be informed of the direct, immediate, and automatic consequences of his or her plea. See § 2.4.12, below.

A trial court must comply with the requirements of Rule 11 before accepting a guilty plea to the charge of DUI, DWAI, and DUI per se, since these are not minor traffic offenses and are subject to possible incarceration. People v. Heinz, 589 P.2d 931, 933 (Colo. 1979); Laughlin v. State, 618 P.2d 689 (Colo. App. 1980), rev'd, 634 P.2d 49 (Colo. 1981), on the ground that a challenge to the propriety of the Rule 11 advisement could not be made in an administrative proceeding.

§ 2.4.2—The Constitutional Requirements

The requirement that a plea be intelligently and voluntarily made is the key substantive requirement the constitution imposes upon the acceptance of a guilty plea. Boykin v. Alabama, 395 U.S. 238 (1969). In Colorado, People v. Randolph, 488 P.2d 203 (Colo. 1971), appears to be the first case to adopt these principles and to require that a guilty plea be voluntarily and intelligently entered in order to comply with due process of law. As noted, Crim. P. 11 incorporates these constitutional requirements and adds to them. Compliance with Crim. P. 11 should ensure compliance with the constitutional requirements. A brief discussion of the constitutional requirements is nonetheless appropriate because these requirements apply regardless of when and where a plea may have been taken, and will remain applicable even if Rule 11 is altered in the future.

The plea-taking requirements in Boykin are generally acknowledged as establishing the minimum standards for a valid guilty plea in misdemeanor cases, and they are:

• The defendant understands and waives his or her privilege against compulsory self-incrimination;
• The defendant understands and waives his or her right to confront his or her accusers; and
• The defendant understands and waives his or her right to trial by jury.

In a footnote, the court also recommended an "on the record examination" to determine that the defendant understands:

• The nature of the charge;
• The acts sufficient to constitute the offense charged (elements); and
• The permissible range of penalties.

The Boykin decision also stands for the proposition that a valid guilty plea involves the process of a "waiver," which must be discernible from the record. Under federal standards, a waiver is valid only if it is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458 (1938); United States v. Aptt, 354 F.3d 1269, 1282 (10th Cir. 2004).

The process of waiver is composed of two basic elements. First, knowledge of the essential rights being waived is a prerequisite to a constitutional waiver. The record must demonstrate that the defendant was aware of certain essential rights. If the defendant was not clearly advised of those essential rights, then there cannot possibly be an intentional relinquishment or waiver of those rights. See Molignaro v. Dutton, 373 F.2d 729 (5th Cir. 1967); Boykin, 395 U.S. at 242.

Second, voluntary relinquishment of those rights is a prerequisite to any constitutional waiver. The record must demonstrate that the plea was accomplished without "coercion, terror, inducements, subtle or blatant threats . . . . " Boykin, 395 U.S. at 243; Brown v. Jernigan, 622 F.2d 914 (5th Cir. 1980).

To show a valid waiver of essential constitutional rights in accepting a guilty plea, there must be a record. Presuming a waiver from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506 (1962). There is a presumption against the waiver of constitutional rights. People v. Alenqi, 148 P.3d 154, 159 (Colo. 2006). The mere statement that a defendant was advised of his or her constitutional rights prior to waiver is generally not sufficient to establish an understanding and intelligent waiver. Carver v. Wharton, 532 F. Supp. 512 (S.D. Ga. 1982); Moran v. Estelle, 607 F.2d 1140 (5th Cir. 1979); Craig v. Beto, 458 F.2d 1131 (5th Cir. 1972).

The U.S. Supreme Court has established at least five factors bearing on the issue of whether a plea is voluntarily and intelligently made:

• The defendant must be competent at the time he or she pleads guilty. Brady v. United States, 397 U.S. 742 (1970);
• The defendant must understand the nature of the charge against him or her. Boykin, 395 U.S. 238 (1969);
• The defendant must understand the consequences of pleading guilty, including the waiver of rights and the possible penalties that could be imposed. Alford, 400 U.S. 25; Boykin, 395 U.S. at 285;
• Defense counsel must be present, unless the defendant waives the right to counsel; and
• Defense counsel must be both effective and competent. Alford, 400 U.S. 25; Jackson v. Denno, 378 U.S. 368 (1964).

There is, however, no constitutional requirement that a defendant be specifically advised of every constitutional or statutory right to which he or she is entitled, so long as the defendant is advised of the rights set forth in Crim. P. 5(a)(2) and 11(b). People v. Wade, 708 P.2d 1366 (Colo. 1985); People v. Reyes, 728 P.2d 349 (Colo. App. 1986). For example, it has been held that when a defendant was advised that he was waiving his right to a trial by jury, he was inferentially informed that he was waiving his right to confront his accusers and his right to remain silent during trial, and failure to specifically inform the defendant that he was waiving those rights did not invalidate his plea of guilty. People v. Marsh, 516 P.2d 431 (Colo. 1973). While the trial judge may give an advisement in greater detail than is required by Crim. P. 11, the law does not require more, and full compliance with Crim. P. 11 is sufficient. People v. Hrapski, 718 P.2d 1050 (Colo. 1986). Crim. P. 11 does not require that a defendant be advised of his or her right to appeal. People v. District Court, 868 P.2d 400 (Colo. 1994). However, Crim. P. 32(c)(2) requires the court to inform the defendant who has entered a plea of guilty or no contest that the defendant may have the right to appellate review of the sentence, of the time limits for filing a notice of appeal, and that the defendant may have a right to seek postconviction reduction of sentence in the trial court under the provisions of Crim. P. 35(b).

Due process does not require a specific waiver of the three constitutional rights — privilege against compulsory self-incrimination, right to trial by jury, right to confront one's accusers — highlighted in Boykin. Lacy v. People, 775 P.2d 1 (Colo. 1989); Wade, 708 P.2d 1366; Marsh, 516 P.2d 431.

§ 2.4.3—A "Knowing, Intelligent, and Voluntary" Plea

For a waiver of a fundamental right to be valid, the defendant must "voluntarily, knowingly, and intentionally" relinquish that right. People v. Harrington, 500 P.2d 360 (Colo. 1972). In order for a court to accept a plea of guilty, there must be an affirmative showing that it was "voluntarily and intelligently" given. Martinez v. Ricketts, 498 F. Supp. 893 (D. Colo. 1980); Hampton v. Tinsley, 240 F. Supp....