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Colorado Criminal Law – The Nature and Law of Plea Agreements – Colorado Plea Bargains And The Procedures That Attend A Plea Hearing

Introduction – One of the most confusing and frightening aspects of a criminal case is the formal – ritualistic proceeding for the acceptance of a plea agreement by a judge. Sometimes called a providency hearing – the purpose of the “plea advisement” hearing is to make certain the Defendant understands the crime to which s/he is pleading guilty, the nature of the plea agreement and the consequences of the plea agreement. Colotado Criminal Defense Lawyer – H. Michael Steinberg

Plea agreements are an essential part of the judicial process and occur in the majority of cases presented to the Court. Without plea agreements the criminal justice system would come to a halt.

Colorado recognizes the need for allowing plea agreements an d provided statutory authority for the utilization of plea agreements in the judicial process.

A defendant is entitled to plead guilty, not guilty, not guilty by reason of insanity, or, with the consent of the court, nolo contendere.

Advisements before the plea agreement:

Colorado requires that a defendant receive an advisement of rights as set forth in Colorado Rule of Criminal Procedure Rule 5 and 11 before the Court can accept a guilty plea.

A guilty plea is considered to be a judicial admission of the offense to which a defendant pled, a judicial admission to all of the elements of that charge, and is considered to be a waiver of substantial constitutional rights.

However, prior to a conviction entering, the Court must secure from a defendant a knowing, voluntary, and intelligent plea of guilty and the record must establish the Court’s findings that the plea meets constitutional standards.

Importance and Purpose of Plea Agreement Advisements

Rule 11 essentially provides a list of topics that the Court is required to address when advising a defendant who is entering a guilty plea.

The Court must comply with the requirements of Rules 5 and 11 before any plea of guilty or nolo contendere can be accepted.

If the Court provides an inadequate or improper advisement, the voluntary and intelligent nature of a defendant’s plea is called into question.

The Judge must advise a defendant of the fundamental constitutional rights a defendant is afforded if he goes to trial, the effect of the waiver of those constitutional rights, the nature of the crime to which a defendant is pleading, and an explanation of the elements of the crime that would have to be proven at trial before he can “take” a plea.

The Role Of Written Advisements Of Constitutional Rights At The Advisement Hearing

A printed form or plea paperwork cannot take the place of the verbal exchange that is required by the Rule or act as a substitute to the findings that the Court must make before the acceptance of the plea. While the Court can use written advisements for assistance, the Court must have the defendant acknowledge on the record that he understood and read the paperwork and that the defendant’s signature is on the document.

The Requirement for Translators

For defendants who are utilizing the services of a translator or defendants who are unable to read, the Court should inquire that the document was read or translated and read to them, and that they understood the document. The document must then become part of the record and referenced as such during the advisement proceedings.

Specific Findings Must Be Made Before A Plea Can Be Accepted

Since the Court is required pursuant to Rule 11(b) and C.R.S. §16-7-207 to make specific findings before the acceptance of a plea of guilty or nolo contendere plea, it is important for the Court to conduct an adequate advisement with the defendant such that the Court has sufficient information in the record to support the findings that are made.

What Are The Types of Pleas

Standard Pleas

A “Standard” plea is one which a defendant admits a factual basis for the plea and acknowledges his guilt. These are the majority of the types of pleas that are accepted by the Court.

No Contest (Nolo Contendere) Crim. P. 11(a).

A defendant may enter a plea of nolo contendere. However, the court must consent to the entry of a nolo contendere plea. In addition to the requirements pursuant to Rule 5 and 11 as well as the relevant statutes, the Court is required to notify a defendant of the consequences of entering a nolo contendere plea.

A nolo contendere plea equates to a “guilty” plea, but its use is limited to criminal proceedings. This particular type of conviction cannot be used later as an admission of facts in a civil proceeding involving the same act.

However, for sentencing purposes there is no distinction between a guilty plea and a nolo contendere plea. A plea of nolo contendere may be used as a conviction for the purposes of a habitual criminal proceeding.

In addition to the other required advisements, the Court should advise a defendant who intends to plea nolo contendere that:

“A no contest plea constitutes a conviction of the charge. Generally no use of this plea can be made in a civil proceeding. However, you the defendant should be fully aware that the penalties and punishment, as far as conviction, are the same as a guilty plea. This will be a conviction on your criminal record.”

The So Called “Alford Plea”

An Alford plea is a conviction. The entry of an Alford plea by a defendant is no different than a conviction obtained from a standard plea, a jury verdict finding guilt, or a plea of nolo contendere. While an Alford plea allows a defendant to protest his innocence to one or more elements of the charge, the plea is still considered a conviction and the defendant is agreeing to the imposition of the judgment of conviction and penalty for the crime.

The Court, however, is not required to advise a defendant that failure to comply with conditions of the sentence that would require an admission of guilt could lead to future revocation proceedings.

If a defendant is entering an Alford plea, the Court must advise the defendant of the effect of the Alford plea and that it is the equivalent to a guilty plea and will be treated as a conviction.

The defendant must also understand that while he is denying guilt to one or more elements of the crime, the defendant must agree or state that there is a strong likelihood that the defendant will be convicted if he went to trial and, in light of that, expresses a desire to accept the plea agreement provided to him by the prosecution.

Domestic Violence Concerns

Alford pleas in cases involving an underlying factual basis of domestic violence prove to be a quagmire for the Court. At the time of the plea the Court may refuse to accept an Alford plea for the following reasons:

Domestic violence offenders may have a difficult time completing treatment requirements when they enter into an Alford plea because in their minds they have not admitted to the crime. Alford pleas in domestic violence cases may also indicate to the Judge that there is minimization by the offender of his behavior or lack of acceptance for his criminal conduct.

A Court is never required to accept an Alford plea and the Court can require the parties to indicate to the Court why the Court should accept the Alford plea.

Preliminary Proceedings Advisements (Rule 5)

Crim. P. 5(2) The Court must provide a defendant with:

An explanation of the offense,

The possible penalties,

and

The consequences of the plea before the Court can accept a plea.

There are slight differences between the felony and misdemeanor advisements.

Felony Preliminary Advisements:

At the first appearance of the defendant in court, it is the duty of the court to inform the defendant and make certain that the defendant understands the following:

(I) That the defendant need make no statement and any statement made can and may be used against the defendant;

(II) The right to counsel;

(III) If indigent, the defendant has the right to request the appointment of counsel or consult with the public defender before any further proceedings are held;

(IV) Any plea the defendant makes must be voluntary and not the result of undue influence or coercion;

(V) The right to bail, if the offense is bailable, and the amount of bail that has been set by the court;

Crim. P. 5(c)(2). Misdemeanor and Petty Offense Advisements:

A defendant must be advised of (I) through (VII) as provided in the rule for Felony Proceedings above.

The only difference in misdemeanor cases is that a defendant must be advised that an application for the appointment of court appointed counsel cannot be made until after the prosecuting attorney has spoken to the defendant.

Advisements at Time of Plea Entry – The Role of Rule 11

While C.R. Crim. P. 5 (above) requires that the Court notify the defendant of his basic rights at the initiation of criminal proceedings, the Court is required to advise a defendant of these rights again before the entry of a plea. As with preliminary advisements, the rules for felony and misdemeanor offenses are slightly different.

Felony Cases:

(1) That the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;

(2) That the plea is voluntary on defendant’s part and is not the result of undue influence or coercion on the part of anyone;

(3) That he understands the right to trial by jury and that he waives his right to trial by jury on all issues;

(4) That he understands the possible penalty or penalties;

(5) That the defendant understands that the court will not be 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;

(6) That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads;

(7) That in class 1 felonies, or where the plea of guilty is to a lesser included offense, a written consent shall have been filed with the court by the district attorney.

Misdemeanor Cases, (except class 1)

The only change from felonies above is that the court may accept, in the absence of the defendant, any plea entered in writing by the defendant or orally made by his counsel.

Failure or Refusal to Plead:

If a Defendant refuses to plead, or if the court refuses to accept a plea of guilty, or a plea of nolo contendere, or if a corporation fails to appear, the court shall enter a plea of not guilty.

If for any reason the arraignment here provide for has not been had, the case shall for all purposes be considered as one in which a plea of not guilty has been entered.

Nature of the Charges and Essential Elements

When the Court advises of the charge to which the defendant is pleading to, so long as the language of the charge is not highly technical, the reading of the charge may be sufficient for notice and explanation.

Essentially, the Court should make sure that all critical elements of a crime are explained to a defendant in terms that are understandable. The Court should also verify that the attorney has discussed all elements of the crime with the defendant and that the defendant understands those elements and needs no further explanation or assistance from the Court.

A defendant must be advised by the Court on the relevant mental state definitions and elemental definitions associated with the crime to which the defendant is pleading.

The record must show that the defendant understands the critical elements necessary for the crime to be proven at trial beyond a reasonable doubt.

During the advisement, or at some point prior to the entry of the plea, all elements of the crime must be explained to a defendant including elements that have commonly understood terms. For example, the commonly accepted meaning of the word “theft” needs to be explained to the defendant.

Merely asking a defendant if he understands what the element means is insufficient and does not relieve the Court of its duty to advise and explain the elements of the crime. What is important is that if there has been a full advisement by the attorney and even a limited advisement by the Court, the Court must have the defendant indicate clearly on the record that the defendant:

Understands the elements of the crime;

That he is aware of the elements of the crime; and

That the defendant’s attorney explained them to him.

However, after inquiry by the Court, if a defendant indicates that all of the elements of the crime have been explained to him by his counsel and that he understood the elements, and that the elements had been fully explained to him, a defendant will fail on a request to later vacate the plea.

Voluntariness of the Plea

Before the Court can find a defendant guilty, the Court must make a finding that the plea is being entered into voluntarily. A voluntary plea must be a product of a free and rational choice when viewed in light of the alternative course of action available to a defendant.

The voluntariness of a plea focuses on a defendant’s state of mind at the time of the entry of the plea.

a) Under the Influence:

Defendants who are under the influence of drugs, alcohol, or medication can still have the mental capacity to enter into a plea voluntarily. If a defendant acknowledges that he is under the influence of any drugs, alcohol, or medication, the Court should inquire of the defendant the state of mind of the Defendant before continuing with an advisement.

The determination of a defendant being competent to continue with the advisement and entry of the plea will depend on questions or further inquiry by the Court. When a Court inquires of a defendant about any drug, medication, or alcohol intoxication at the time of the advisement, the Court can rely on the defendant’s manner, demeanor, and/or affect as well how the defendant is responding to the questions asked by the Court.

Competence to enter a plea is a question of fact and if the record supports the Court’s findings a defendant will fail on a request to withdraw his plea. In Wood, for example, at a post-conviction proceeding, the defendant claimed he was under the influence of alcohol and antabuse 48 hours before entry of plea. The guilty plea stood because the record of proceedings and answers to the Court’s questions at the Rule 11 advisement refuted the defendant’s contention.

b) Mental or Intellectual Disability:

Defendants who exhibit mental health concerns and/or intellectual disability can also enter into a plea voluntarily but may require a more in-depth advisement by the Court.

c) Threats:

A plea that is induced by threat, coercion, or promises is not a voluntary plea and is not valid.

However, pleas of guilty that are conditioned on the fact that if a defendant does not plead guilty that the district attorney will file additional charges does not, in and of itself, make a plea involuntary.

Additionally, even if a defendant is unhappy with the plea agreement or unhappy with the sentence given by the Court, the plea is not involuntary.

Court’s Determination of Voluntariness Of The Plea

The Court can base its decision on voluntariness on not only the defendant’s answer to the questions during the advisement but also the Court’s observation of the defendant during the proceedings. If the Court does rely on such observations or other indicators the Court will usually put those on the record and / or maintain notes of those observations in the court file.

A reviewing court cannot later presume voluntariness of a plea from a silent record, but evidence can be admitted at a later hearing. Of course, years can pass before a defendant challenges the advisement and notations in the record and/or the Court file will be sometimes used by the Court to recall the information.

When making a determination on the voluntariness of the plea the Court will consider all attendant circumstances of the defendant.

Circumstances such as the defendant being in physical restraints at the time of the plea, a defendant pleads to a charge involving a loved one, or a defendant enters a plea against an attorney’s advice will not automatically render a plea involuntary. Even alcohol intoxication does not render a plea involuntary.

Right to Trial by Jury

A defendant has the constitutional right to a jury trial. The court must advise the Defendant that with the entry of a plea of guilty the Defendant is waiving his right to have a trial by a jury.

However, the extent of the inquiry is that the Defendant recognizes that by entering a plea of guilty he is waiving his right to have a jury trial.

The Courts have not imposed any further requirements on the Court.

Possible Penalties

The Court must advise the Defendant of the possible penalties for the crime to which the defendant is pleading.

The possible penalties of the crime are considered a “direct consequence” of a defendant’s plea and failure to adequately and properly advise a defendant will result in the defendant being allowed to withdraw his plea at any time in the future.

Even if the defendant is receiving a community based sentence (probation, deferred sentence, community corrections, etc.) as stipulated by the parties, the Court must advise a defendant of the possible prison sentence;

The trial court must advise about mandatory parole when defendant is pleading guilty and is to receive a deferred sentence even though imprisonment and parole is are not inevitable at the time of the plea.

In addition to the possible penalties of sentence, the Court must also advise of other direct consequences of one’s plea.

Direct” consequences of a defendant’s plea are considered to be effects of the plea that are definite, immediate, and automatic.

Mandatory parole is considered a direct consequence and the Court must advise a defendant that there is, in addition to the department of correction sentence, a mandatory period of parole.

Aggravating Factors:

Colorado has designated some mandatory sentencing factors that give rise to possible penalties outside of the presumptive range. The Court is required to advise a defendant of those mandatory aggravating circumstances.

Failure to notify a defendant of the aggravating sentencing range due to a parole status aggravator will lead to the withdrawal of the plea by the defendant as it is not a knowing, voluntary, and intelligent plea.

Mandatory Consecutive Sentencing:

If there is the possibility that the defendant is looking at consecutive sentencing, either discretionary consecutive sentencing or mandatory consecutive sentencing, the Court should advise the defendant of the possibility of consecutive sentencing.

Failure to notify the defendant of the possibility consecutive sentencing may invalidate a plea or limit the Court’s options at sentencing.

Sentence Ranges

Colorado has provided for a specific sentencing scheme for crimes. There are particular aggravators that can affect the range of the sentence allowed by the Court or provide limited sentencing options allowed by the Court.

Extraordinary Risk Crimes include:

Aggravated Robbery

Child Abuse

Distribution, Sale, Dispensing, or possession of a controlled substance with the intent to sell, distribute, manufacture or dispense (not mere possession)

Any crime of violence

Any of the following crimes if (1) the defendant used, possessed and threatened the use of a deadly weapon; or (2) caused serious bodily injury or death to any other person except another participant:

i. Any crime against an at-risk adult or at-risk juvenile

ii. Murder

iii. First or second degree assault

iv. Kidnapping

v. A sexual offense included in part four of article 3 of the criminal code:

1. sexual assault, 2. unlawful sexual conduct, 3. sexual assault on a child, 4. sexual      assault on a child by one in a position of trust, 5. internet sexual exploitation of a child,   6. sexual assault on a client by a psychotherapist, 7. Felony invasion of privacy for sexual gratification (effective July 1, 2012),

vi. Aggravated robbery

vii. First degree Arson

viii. First degree burglary

ix. Escape

x. Criminal Extortion

Stalking

Sale of materials to manufacture controlled substances.

Statutory Aggravators C.R.S. § 18-1.3- 401(8)(a), (9).

Colorado statutes provide for circumstances that increase the range of possible penalties if a defendant is sentenced to a Community Corrections program or the Department of Corrections. Depending on which subsection applies to the case before the Court, the minimum and maximum sentence within the presumptive ranges change. The language in the statute indicates that the sentence is mandatory when there is an aggravator present.

Neither the Court, prosecutor, nor the defendant can waive the presence of a statutory aggravator even if the waiver is for the benefit of the defendant.

For Example:

Defendant was not entitled to plea agreement that would result in an illegal sentence; and Public policy dictated that a defendant should not benefit from an illegal sentence.

If the Court is aware of the possible circumstances of a statutory aggravator, it is the Court’s duty to properly advise the defendant of the increased sentencing range.

If a statutory aggravator in C.R.S. §18-1.3-401(8)(a) exists, the Court must sentence the defendant to at least the mid-point of the presumptive range but not more than twice the maximum number of years in the presumptive range.

The following aggravators require this increased range of sentencing:

1. The defendant is convicted of a crime of violence

2. The defendant was on parole for another felony at the time of the commission of the felony for which he is current before the court

3. The defendant was on probation or was on bond pending sentencing on a probation revocation for another felony at the time of the commission of the felony for which he is currently before the court

4. The defendant was under confinement, in prison or in any correctional institution as a convicted felon, or on escape status from any correctional institution for another felony at the time of the commission of the felony for which he is currently before the court

5. At the time of the commission of the felony, the defendant was on appeal bond following his conviction for a previous felony

6. At the time of the commission of a felony, the defendant was on probation for or on bond while pending sentencing for a probation revocation for a delinquent act that would have constituted a felony if committed by an adult

If statutory aggravators exist pursuant to C.R.S. 18-1.3-401(9), the Court must advise the defendant that the possible penalties include a sentence of imprisonment of not less than the minimum in the presumptive range to not more than twice the maximum in the presumptive range.

Sentence Aggravators:

1. At the time of the commission of the felony, the defendant was charged with or on bond for a felony in a previous case and the defendant has been convicted of any felony in the previous case.

2. At the time of the commission of the felony, the defendant was charged with or on bond for a delinquent act that would have constituted a felony if committed by an adult.

3. At the time of the commission of the felony, the defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony;

4. The defendant was under a deferred sentence for another felony at the time of the commission of the felony for which he is current before the court;

5. At the time of the commission of the offense, the defendant was on bond for a juvenile direct file for having plead guilty to a lesser delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult;

6. At the time of the commission of the offense, the defendant was under a deferred judgment and sentence for a delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult;

7. At the time of the commission of the felony, the defendant was on parole for having been adjudicated a delinquent child for an offense which would constitute a felony if committed by an adult;

C.R.S. §18-1.3-501 sets for the possible penalties for misdemeanor and petty offenses.

As with felony crimes, the legislature designated some misdemeanor crimes as extraordinary risk crimes which increase the possible sentence. C.R.S. § 18-1.3-501 (3)(a) provides the list of extraordinary risk crimes and that the maximum sentence for each shall be increased by a period of six months. The following crimes are considered extraordinary risk crimes:

Third Degree Assault

Sexual Assault

Sexual Assault in the Second Degree

Unlawful Sexual Contact

Sexual Assault in the Third Degree

Child Abuse

Second or subsequent violations of a protection order; and

Failure to register as a sex offender

Third Degree Assault When Victim Was Pregnant:

Additionally, C.R.S. §18-1.3-501(6) provides for a mandatory jail sentence for a defendant who has been convicted of third degree assault and the victim was pregnant at the time of the offense.

The conditions required for that finding is that the victim was pregnant and the defendant knew

or reasonably should have known that the victim was pregnant at the time of the offense. The Court is required to make the finding on the record that the two conditions precedent have been met. The mandatory jail sentence is for at least six months but cannot exceed the maximum penalty for the crime within the class of misdemeanor penalty range. The Court cannot suspend any portion of that sentence.

Penalties Not Requiring Disclosure

Nature of Defenses

While Rule 11 requires the Court, in general, to advise a defendant of the rights he is waiving, the elements of the offense, and the nature of the offense, and the possible penalties, the Court is not required to explain to a defendant all of the possible affirmative defenses he is waiving when the defendant enters a plea of guilty.

However, if a defendant has filed a notice of defense and/or the Court is aware of an affirmative defense, the Court should inquire of the Defendant his understanding that by entering a plea is a judicial statement and acknowledgment of and that he is also waiving that defense.

Immigration Consequences

Immigration and deportation issues are often a concern for the Court.

Although Rule 11 does not require the Court to advise a defendant of potential immigration and deportation consequences, those consequences are considered to be collateral matters.

However, if a defendant who is unaware of the possible immigration and deportation consequences of a plea can file a motion to withdraw the plea and prevail if there is a finding of a fair and just reason to allow for the withdrawal of the plea.

The Immigration and Nationality Act sets forth the procedure and definitions of crimes that could lead to deportation and removal proceedings of an alien regardless of whether the defendant is an illegal alien or an alien resident.

Any alien who is convicted of a “crime of moral turpitude” within five years after the date of admission or within 10 years after the alien obtains lawful permanent resident status and the “crime of moral turpitude” has a possible sentence of one year or longer that may be imposed is subject to removal. There are a number of definitions and federal cases that determine what constitutes a “crime of moral turpitude.”

A conviction under the Act only requires a formal finding of guilty by a judge or a jury and there has been some form of punishment administered by the Court. Even if the sentence issued by the Court is suspended or imprisonment is not ordered, an alien defendant is still considered “convicted.” Deferred sentences are considered “convictions” under the Act.

The Act has its own definition of “domestic violence” but generally crimes involving domestic violence, stalking, violation of protection orders, or crimes committed against children will subject an alien defendant to removal proceedings.

Although the Court is not legally required to inquire about the defendant’s immigration status, the Court should nevertheless make that inquiry and, if immigration issues might be implicated, inform the defendant that entering a plea could affect their legal status in the United States and might subject the defendant to deportation. The Court, after a recent decision of the United States Supreme Court – should also ask defendant’s counsel, if he has one, if counsel has discussed the possible immigration consequences of the plea with the defendant.

Collateral Consequences

There are some legal issues that are not considered to be a direct consequence of a plea but rather are designated as collateral consequences. A Court is not required to advise a defendant of collateral consequences of his plea.

For example the Court is not required to advise a defendant:

That he is subject to sex offender registration requirements if he pleads to a crime for which is a sex offense or the underlying factual basis is a sexual offense.

Of additional types of post-conviction supervision while on parole;

That the defendant could be reincarcerated if there is a violation of the conditions of mandatory parole;

Of the type of prison classification;

Of eligibility for parole;

That voting rights will be affected while imprisoned; or

That failure to admit offense for purposes of treatment when Defendant entered an Alford plea could lead to revocation proceedings.

Domestic Violence Designation

The Court is not required to advise the defendant of the implications of a “domestic violence” designation as required by C.R.S. §16-21-103. The Court is not required to advise the defendant that the domestic violence designation may subject them to increased possible penalties in the future since the conviction may be used in future proceedings.

Representations

The Court should ask a defendant whether any promises or considerations have been made to him that have not been outlined by the attorneys on the record or in the written plea agreement.

The Court should advise the Defendant that any representations that have been made to him that have not been expressed in court on the record and/or in a written plea agreement are not binding on the court.

Factual Basis for the Plea

Before accepting the plea, the defendant has to provide a factual basis for the plea or waive the establishment of a factual basis.

“The court must determine ‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.”

When a post-conviction court looks at the claim by a defendant that there was no factual basis for the plea, the Court will review the record of the proceedings, the pre-sentence investigation report, information gathered from other hearings, and other documentation submitted to the Court to find that the defendant was advised of the elements of the crime to which he pled. If the trial Court relies on any documents at the time of the plea and/or sentencing those are usually specifically incorporated into the record by reference by the judge.

Misdemeanor cases can be handled by the Court in a more simplified manner than the proceedings for felony pleas.

However, the Court still must have sufficient information to make the findings that the defendant can provide a factual basis for the plea, acknowledges guilt, and has entered the plea knowingly and voluntarily.

In domestic violence cases:

It may be important for the court to hear a defendant’s factual basis for the plea.

Depending on how the defendant provides the information for the factual basis for the plea may affect the Court’s decision on whether to accept the plea or reject the plea. Additionally, the factual basis may be indicative of how well or how poorly a defendant may do in domestic violence treatment.

 Right to Counsel

Alternatively, a defendant also has the right to self-representation. The Colorado Constitution reaffirms a defendant’s right to self- representation stating that “[T]he accused shall have the right to appear and defend in person.”

Self-representation is a conditional right:

While a defendant in a criminal case has the right to represent himself and proceed without the assistance of counsel, this right is conditioned on the requirement that the defendant have “an intelligent understanding of the consequences of so doing.”

The Court, however, should use caution when obtaining a waiver of counsel from a pro se defendant as the record must reflect that a defendant knowingly and voluntarily waived his constitutional right to counsel.

Usually, the Court will address this issue when an indigent defendant does not want to be presented by court-appointed counsel. A defendant can waive his right to counsel with either an express waiver or an implied waiver. When a pro se defendant is entering a plea the Court has to make sure that there are adequate findings on the record that support the reasons why the defendant is proceeding without an attorney.

The test for an implied waiver of the right to counsel:

In order for a court to conclude that an accused has impliedly waived counsel, the record as a whole, including the reasons proffered by the defendant for not having counsel, must show that the defendant knowingly and willingly undertook a course of conduct that evinces an unequivocal intent to relinquish or abandon his right to legal representation.

The rule requires that the court inquire of a defendant the reason for dissatisfaction with the court appointed attorney.

The basis for the dissatisfaction must be a well founded concern on the part of the defendant that his court appointed attorney cannot or will not represent him.

The Court must carefully inquire into the reasons for the defendant’s request either for a new attorney or proceeding pro se. If the Court determines that the complaint by the defendant is unfounded or the request for new counsel is unwarranted, the Court can notify the defendant that there are two choices:

Continue being represented by his court-appointed counsel,

or

Appear pro se.

Once a defendant has made a voluntary decision to appear pro se, the Court must assure itself that the defendant is making a knowing and intelligent waiver and that “he knows what he is doing and his choice is made with eyes wide open.”

The record must show that the Defendant’s “unequivocal intent to relinquish or abandon his right to legal representation.”

The Colorado Supreme Court adopted a list of questions from that the Court should ask the Defendant before allowing a defendant to appear pro se.

While the Court is not required to follow the list of questions, the Colorado Supreme Court indicated that failure of the trial court to follow it would be “an exception which should rarely be invoked.

The adopted questions for the Court to ask a defendant who is proceeding pro se are:

1. Do you understand that you have the right to be represented by counsel throughout these proceedings?

2. Do you understand that if you cannot afford an attorney that one will be provided to you free of charge?

3. Do you understand I will appoint counsel if you want an attorney to represent you?

4. Do you understand that the charge against you is [CHARGE(S)], and it carries a penalty of [POSSIBLE PENALTY]?

5. Do you have any legal training?

6. How far have you gone in school?

7. Are you under the influence or any drug, medication, or alcohol that would affect your understanding of these proceedings?

8. Do you wish to consult with the public defender before you make a decision to waive counsel and represent yourself?

9. Do you understand criminal law is a complicated area, and that an attorney trained in this field could be of great help in preparing and representing your defense?

10. Do you understand that you have a right to remain silent and that anything you say can be used against you in court?

11. Would you request the court appoint counsel to advise you?

12. You should understand you have a right to represent yourself, but by doing so, you take a great risk of not properly presenting your case.

13. Do you understand you have a right to confront the witnesses against you and cross-examine them?

14. Do you understand that you have a right to have witnesses you choose compelled to appear and testify on your behalf?

Mental Illness:

It is important to note that while a defendant has the right to represent himself, the Court should consider factors involving a defendant’s mental health.

Meeting the Waiver Requirements:

A defendant who requests new counsel does not necessarily meet the requirements for an implied waiver of the right to counsel. The Court must determine if the request for new counsel is unreasonable or without good cause.

Good cause can be a conflict of interest, a complete breakdown of communication between the defendant and his attorney, or an irreconcilable conflict.

If the Court makes a determination that a defendant is making an unreasonable request or the request is without good cause, the Court can make a defendant choose between his two options: counsel or waiver of counsel.

If a defendant later challenges the validity of the waiver of a fundamental constitutional right, such as the right to counsel, the prosecution will be required to establish a prima facie case that the waiver was effective. Once the prosecution has established a prima facie case, the defendant can present evidence from which it could be reasonably inferred that the waiver was not voluntary, knowing, and intentional.

The Court will make the appropriate inquiries and findings on the record for the waiver of the right to counsel to withstand a post-conviction challenge.

Findings

At the end of the advisement, the Court must make specific findings on the record regarding the plea. The Court must making a finding on the record that:

1. The Defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;

2. That the plea is voluntary on the defendant’s part and is not the result of undue influence or coercion on the part of anyone;

3. That he understands his rights and the effect the guilty plea has on his rights;

4. That he understands the possible penalties that he faces;

5. That the Court will not be bound by an representations made to the Defendant except those are in the formal plea agreement or discussed in Court; and

6. That there is a factual basis for the plea.

Bail After Conviction C.R.S. § 16-4-201(1)(c).

When a defendant enters a plea of guilty, the original bond cannot be continued without a written consent of surety.

However, not all offenses allow for a defendant to remain in the community on bond. The list of crimes where bail is not allowed includes, but is not limited to, crimes of violence, child abuse, and felony crimes committed when the offender used a firearm.

Rejection of Plea Agreement

When a defendant enters a plea that results in a finding of guilt, the Court is under no obligation to accept the plea. A court, after consideration and exercise of sound judicial judgment, may notify the parties that the Court is rejecting the agreement.

The Court is given latitude to accept or reject a plea agreement presented by the parties.

There are many factors that the Court can consider including:

The offender’s prior criminal history;

Recommendations in the pre-sentence investigation report;

Recommendations made by treatment providers;

Statements made by family members and victims; and

The nature of the crime that was committed.

While the Court does have discretion to reject a plea agreement, the Court must make a record as to why the plea agreement was rejected. That finding should demonstrate that the Court used its own independent judgment in light of the Court’s obligation to fairness and sound administration of justice, and the Court must articulate its reasons for rejection of the plea agreement.

If the Court does reject the plea agreement or a defendant withdraws his plea, the Court should reinstate all charges.

A defendant, however, is not required to withdraw the plea. The defendant can choose to go forward with the sentencing knowing that the Court is not bound by the plea agreement or the defendant is allowed to withdraw his plea.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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