Summary
In Dawson, the defendant was initially sentenced to community corrections for a term of eight years, escaped, and was resentenced to eight years in the DOC together with five years of mandatory parole.
Summary of this case from People v. PereaOpinion
No. 99SC995
July 2, 2001 Rehearing denied August 20, 2001
Certiorari to the Colorado Court of Appeals Court of Appeals No. 98CA433.
JUDGMENT AFFIRMED
No. 99SC995: Dawson v. People Mandatory Parole — Community Corrections — Department of Corrections — Providency Hearing — Plea Agreement — Rule 11 Advisement
In this case, and its companion Young v. People, No. 00SC240 (July 2, 2001), the supreme court holds that at a providency hearing, a trial court must advise a defendant of both the possible incarceration sentence and the attendant mandatory parole, even if the parties to a plea agreement have stipulated to a sentence to probation or community corrections. Failure to advise a defendant properly of the possibility of incarceration and mandatory parole results in a Crim. P. 11 advisement violation. However, 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 the error is harmless.
Here, defendant Dawson received an inadequate Crim. P. 11 advisement because the trial court failed to advise him that a sentence to the Department of Corrections (DOC) included an additional term of mandatory parole. The trial court originally sentenced Dawson to community corrections. However, Dawson walked away from the community corrections facility a few days after entering the program. The trial court transferred Dawson to DOC, with the corresponding mandatory parole.
The supreme court finds the trial court's failure to advise Dawson of mandatory parole harmless because the trial court's advisement to Dawson of the maximum available sentence of imprisonment was sufficient to include his DOC sentence and mandatory parole.
David S. Kaplan, Colorado State Public Defender, Cynthia Camp, 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 MARTINEZ dissents, and JUSTICE BENDER joins in the dissent.
JUSTICE RICE and JUSTICE COATS do not participate.
This is the second of two decisions in which we hold that a providency advisement must include both the possible incarceration sentence and the attendant mandatory parole, even if the parties to a plea agreement have stipulated to a sentence to probation or community corrections. In this case, Defendant Carlton Dawson (Dawson) seeks relief from a series of convictions and sentences entered by the Denver County District Court pursuant to negotiated plea agreements. Dawson argues that he received an inadequate Crim. P. 11 advisement in his providency hearings. Thus, he claims his sentence should be modified or he should be given the opportunity to withdraw his plea. Applying the analysis we set forth today in Young v. People, No. 00SC240 (June 25, 2001) slip op. at 6-13, we conclude that Dawson has no claim for relief. Accordingly, we affirm the court of appeals' decision in People v. Dawson, No. 98CA0433 (November 18, 1999) (not selected for official publication).
We granted certiorari to determine "whether a statutorily mandated period of parole is a direct consequence of a plea of guilty that results in a sentence to community corrections, which is later terminated and transferred to the Department of Corrections."
I.
On July 11, 1994, in Case No. 94CR1824, Dawson pled guilty to unlawful possession of a schedule II controlled substance, a class 4 felony pursuant to section 18-18-405, 6 C.R.S. (2000). At the providency hearing, the prosecuting attorney stated that the parties had agreed to a sentencing recommendation of two years if the circumstances were non-aggravated, and a four-year sentence under aggravated circumstances. The trial judge explained to Dawson that "the District Attorney has agreed to make some sentencing recommendations at the time of the sentencing, and we've discussed, I think at some length now, about how the sentencing recommendations are not binding upon me." The trial judge advised Dawson that by pleading guilty to a class 4 felony, he faced a presumptive range of two to six years in the Department of Corrections (DOC). The trial judge also stated that aggravating circumstances could inflate the maximum sentence to twelve years in DOC, and that "any DOC sentence would be followed by a period of parole."
At the sentencing hearing on October 31, 1994, the parties agreed that sentence enhancement did apply because Dawson was on bond at the time of the offense and the conviction was his fifth felony. Dawson requested that the court sentence him to community corrections instead of DOC because he needed treatment for his crack cocaine addiction. The court sentenced Dawson to eight years in a community corrections program and stated that the sentence would be converted to eight years at DOC if he did not comply with and complete the program.
Within days of entering community corrections, Dawson walked away from the program. As a result, the trial court transferred Dawson's sentence from eight years in community corrections to eight years in DOC "plus any term of parole authorized by Section 17-22.5-303." In addition, the state charged Dawson with escape, a class 3 felony, in violation of sections 18-8-208(2), 6 C.R.S. (2000) and 17-27-108, 6 C.R.S. (1993 Cum. Supp.).
On January 17, 1995, Dawson pled guilty to an added second count, attempted escape, a class 4 felony, pursuant to section 18-8-208.1, 6 C.R.S. (2000). In exchange for his plea, the state dismissed the charge of escape. At the providency hearing the court advised Dawson that the sentence for a class 4 felony ranged from two to six years and could be increased up to twelve years under aggravating circumstances. The court also advised Dawson that the escape statute required his sentence for an escape charge to be served consecutive to any sentence he was already serving.
On that same day, the trial court sentenced Dawson to three years of incarceration at DOC consecutive to the eight-year sentence imposed earlier. Although the trial judge did not orally discuss mandatory parole, the mittimus indicated that Dawson would serve three years of mandatory parole.
Dawson later filed a Crim. P. 35(c) motion alleging that he did not knowingly and voluntarily enter into the guilty pleas because he received an inadequate mandatory parole advisement. The district court denied the motion. Dawson appealed the ruling, alleging that the district court's failure to advise him of the three-year mandatory parole period rendered his guilty plea involuntary. He requested that the court reduce each sentence by three years to correct the error.
The court of appeals affirmed the sentences, holding that although the district court erred in both cases by failing to advise Dawson adequately regarding the mandatory parole period in each case, the error was rendered harmless because the total years of imprisonment and mandatory parole fell below the twelve-year maximum sentence he could have received on each count. People v. Dawson, No. 98CA0433, slip op. at 7. The court of appeals also denied relief on Dawson's claim that his plea agreement in the first case included a "stipulated" sentence cap of four years. Id. at 3. Lastly, the court of appeals noted that Dawson had never sought to withdraw his plea, but had rather requested only sentence reformation. In the absence of a request to withdraw the plea, such remedy would not be available. Dawson did not seek certiorari on that issue.
II.
Today, in Young v. People, No. 00SC240, slip op. at 7, we reiterated that Crim. P. 11 requires that a trial court advise the defendant of the "possible penalty or penalties" attendant upon a plea of guilty. Because mandatory parole is a direct and automatic consequence of a sentence to DOC, and a sentence to DOC is a possible penalty for a felony conviction, the trial court must advise the defendant of mandatory parole. Id. This is true even if the plea agreement contemplates a sentence to probation or community corrections. Id. at 13. The only exception to this requirement is if the parties stipulate to a sentence to probation or to community corrections and the judge "explicitly states at the providency hearing that it will accept and agree to be bound by the plea agreement, and so advises the defendant." Id. at 11.
If a defendant receives an improper advisement, it is error, but may be harmless. Id. at 8. "[H]armless error results when the term of imprisonment, combined with the mandatory period of parole, falls within the range of sentence that the defendant was at risk of receiving."Craig v. People, 986 P.2d 951, 964 (Colo. 1999).
III.
In Case No. 94CR1824, the trial judge advised Dawson that he faced up to twelve years of incarceration in DOC, followed by a period of parole. Although the parties tendered a sentencing recommendation, the trial judge did not agree to be bound by the agreement and specifically reserved the right to sentence him "however I think is right." The defendant requested at the sentencing hearing that the court impose a community corrections sentence, and acknowledged that such sentence would need to be "lengthy." The judge did sentence Dawson to eight years in community corrections, and advised him that failure to comply with community corrections placement requirements would result in a DOC sentence of eight years. Even though the judge advised Dawson that he faced mandatory parole, she did not advise him of the length of the parole. Therefore, his advisement was deficient, and the sentence he was advised that he risked receiving was twelve years.
At the second providency hearing, at which Dawson pled guilty to attempted escape, the trial judge advised him that he faced up to twelve years of incarceration, to be served consecutively to his sentence in case No. 94CR1824. Because the judge failed to advise Dawson that a class 4 felony requires a mandatory parole period of three years, Dawson received a deficient Crim. P. 11 advisement.
The parties did not stipulate to a sentence in the second case.
We now turn to whether the trial courts' errors were harmless. We conclude that they were. In the first case, the trial court advised Dawson that he faced a maximum penalty of twelve years. In the second case, the trial judge advised Dawson that he faced another, consecutive maximum of twelve years. Thus, Dawson was at risk of a sentence of twenty-four years between the two cases. Ultimately he received a total sentence of eleven years, plus three years of mandatory parole.
Even though the sentences were consecutive, the period of parole is concurrent. See § 18-1-105(V)(E), 6 C.R.S. (2000).
The period of incarceration plus the term of mandatory parole fits within the maximum sentence that the courts advised Dawson he risked receiving.
IV.
In conclusion, we find that Dawson suffered no prejudice from the inadequate Crim. P. 11 advisements. Therefore, we affirm the court of appeals decision in denying Dawson's request for relief under Crim. P. Rule 35(c).
JUSTICE MARTINEZ dissents, and JUSTICE BENDER joins in the dissent.
JUSTICE RICE and JUSTICE COATS do not participate.