Summary
holding that "stale claims are not favored, and relief will not be granted to correct ancient procedural error," court denied Crim. P. 35 relief from robbery conviction
Summary of this case from Robbins v. PeopleOpinion
No. 26409
Decided January 19, 1976.
Crim. P. 35(b) proceeding wherein a providency hearing is in issue. Defendant pled guilty to simple robbery on December 12, 1960 and now seeks to change his plea or to expunge the conviction which occurred nearly fifteen years ago. From a denial of his motion, the defendant appealed.
Affirmed
1. COURTS — United States Supreme Court — Boykin v. Alabama — Guilty Plea — — Not Retroactive. The United States Supreme Court decision of Boykin v. Alabama — pertaining to the need of an affirmative showing that a guilty plea was intelligently and voluntarily given — is not retroactive.
2. CRIMINAL PROCEDURE — Plea of Guilty — Standards in Nineteen Sixty. Under the standards in effect in 1960 when defendant entered his plea of guilty to the charge of simple robbery it was required only that the accused be advised of the consequences of his plea and the crime with which he was charged.
3. Stale Claims — Not Favored. Stale claims are not favored, and relief will not be granted to correct ancient procedural error.
4. Laches — Change of Plea — conviction — Fifteen Years Ago — Relief — Negative. Defendant — who sought to change his plea or to expunge his conviction which occurred nearly fifteen years ago — was guilty of laches and was not entitled to post-conviction relief; actually, no claim is made that defendant is innocent or that any meritorious defense exists to the crime in issue.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Janet Lee Miller, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.
This Crim. P. 35(b) appeal is without merit. Again, a providency hearing is in issue.
[1] The defendant, Clarence Arnold, entered a plea of guilty on December 12, 1960, to a charge of simple robbery. C.R.S. 1953, 40-5-1. He was represented by counsel and a full probation report was made. Thereafter, the defendant was sentenced to the penitentiary and was released. Since that time, he has been convicted of at least three other felonies and now seeks to change his plea or to expunge the conviction which occurred nearly fifteen years ago. He contends that the requirements contained in Crim. P. 11 and the warning detailed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not met when he entered his plea to simple robbery. We have declared on numerous occasions that Boykin v. Alabama, supra, is not retroactive. Furthermore, Crim. P. 11 was not in effect when the defendant originally entered his plea. People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974); Ward v. People, 172 Colo. 244, 472 P.2d 673 (1970).
[2] The standards for conducting a providency hearing at the time the plea was entered were contained in C.R.S. 1953, 39-7-8. Basically, the statute which was then in effect governing providency hearings required only that the accused be advised of the consequences of his plea and the crime with which he was charged. The defendant in this case received the requisite advice and was given a copy of the information, waived the reading of the information, and acknowledged guilt in a statement to the probation department. He now seeks hindsight relief in a Crim. P. 35(b) proceeding.
[3,4] No claim is made that the defendant is innocent or that any meritorious defense exists to the crime in issue. Stale claims are not favored, and relief will not be granted to correct an ancient procedural error. People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974). The defendant is guilty of laches and is not entitled to post-conviction relief. See People v. Bucci, 184 Colo. 367, 520 P.2d 580 (1974). See also Ward v. People, 172 Colo. 244, 472 P.2d 673 (1970), where the facts parallel those in the instant case.
Accordingly, we affirm.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE DAY, and MR. JUSTICE LEE concur.