Chapter 2 - § 2.5 • PROCEDURES FOR ACCEPTING GUILTY PLEAS

• Jurisdiction: Colorado

§ 2.5 • PROCEDURES FOR ACCEPTING GUILTY PLEAS

§ 2.5.1—Summary

Proper procedures must be followed and an adequate record of findings made on the record in order to facilitate subsequent review of the guilty plea, but a formal ritual is not required by the constitution, rule, or statute. People v. Henderson, 745 P.2d 265 (Colo. App. 1987); Wilson v. People, 708 P.2d 792 (Colo. 1985); People v. Cushon, 650 P.2d 527 (Colo. 1982). Rather than ritualistic compliance, the U.S. Constitution requires that a defendant pleading guilty be aware of the elements of the offense and that the defendant voluntarily and understandingly acknowledge his or her guilt. People v. Duran, 515 P.2d 1117 (Colo. 1973). In meeting the requirements of Crim. P. 11, the appellate courts have not required the trial courts to proceed in a formalistic manner. Waits v. People, 724 P.2d 1329 (Colo. 1986); Wilson, 708 P.2d at 799-800.

The sufficiency of any particular colloquy between the judge and the defendant as to the nature of the charges will "vary from case to case, depending on the peculiar facts of each situation, looking to both the complexity of the charges and the personal characteristics of the defendant, such as his age, education, intelligence, the alacrity of his responses, and whether he is represented by counsel."

United States v. Kamer, 781 F.2d 1380, 1384 (9th Cir. 1986) (quoting United States v. Wetterlin, 583 F.2d 346, 351 (7th Cir. 1978)); Drake, 785 P.2d at 1257, 1268 (Colo. 1990), abrogated by Chavez-Barragan, 2016 CO 66.

To the above list, courts have added familiarity with English, experience with the legal system, and a defendant's need to understand the alternative courses of action open to him or her. Sanchez-Martinez v. People, 250 P.3d 1248 (Colo. 2011) (citing U.S. v. Fuller, 941 F.2d 993, 996 (9th Cir. 1991), and Hill v. Lockhart, 474 U.S. 52, 56 (1985)). For instruction in how an appellate court analyzes an advisement based on the "unique facts" of a case, see the Sanchez-Martinez decision. The opinion includes the trial court colloquy between the magistrate and the defendant, as well as a summary of the issues addressed in this chapter. The court described the defendant as a "non-English speaking, illiterate, non-citizen defendant appearing pro se, with an apparently limited understanding of the United States criminal justice system." Sanchez-Martinez, 250 P.3d at 1248. It illustrates the need for the trial court to evaluate whether a defendant's responses may be the product of misunderstanding, duress, or misrepresentation by others so as to make the guilty plea constitutionally inadequate. Mendoza v. Hatch, 620 F.3d 1261, 1271 (10th Cir. 2010) (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Misunderstanding may include a misapprehension of the consequences of pleading not guilty. Sanchez-Martinez, 250 P.3d 1248.

In 2012, the U.S. Supreme Court decided two cases that impact pleas negotiated with the assistance of counsel. The Court applied the Sixth Amendment effective assistance of counsel standards of Strickland v. Washington, 466 U.S. 668 (1984), to pretrial plea negotiations. In Lafler v. Cooper, 132 S. Ct. 1376 (2012), the defendant alleged that defense counsel's inadequate assistance caused him to reject a plea offer, and that he then received less favorable treatment following his conviction at trial. The Supreme Court agreed with the lower courts that Strickland applies to plea negotiations, but vacated the Sixth Circuit's order for specific performance of the rejected agreement and remanded the case for further proceedings as to the appropriate remedy. The government's argument that Strickland does not apply to plea negotiations was rejected. To prevail on a claim of ineffective assistance in plea negotiations, a defendant must establish three elements: (1) that, but for the ineffective advice of counsel, there is a reasonable probability that the plea offer would have been presented to the court; (2) that the court would have accepted its terms; and (3) that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were imposed.

In Missouri v. Frye, 132 S. Ct. 1399 (2012), the Supreme Court applied a similar analysis where counsel failed to convey a plea offer to the defendant. In neither case did the Supreme Court articulate how a trial court could prospectively avoid such future challenges to a conviction or plea. Justice Kennedy did suggest that perhaps all plea offers should be in writing and made a part of the record at any plea proceeding or before a trial on the merits.

In Henderson v. Morgan, 426 U.S. 637, 644 (1976), the U.S. Supreme Court evaluated the voluntariness of a defendant's plea based on the "totality of the circumstances," rather than on an examination of whether the trial court read the defendant "a ritualistic litany of the formal legal elements of the offense." Drake, 785 P.2d at 1268, abrogated by Chavez-Barragan, 2016 CO 66; see also Lacy v....