Court's Duty To Inform And Plea Bargains — C.R.S. 16-7-207

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Current law (December 2004)

16-7-207. Court's duty to inform on first appearance in court and on pleas of guilty.

(1) At the first appearance of the defendant in court or upon arraignment, whichever is first in time, it is the duty of the judge to inform the defendant and make certain that he understands the following:

(a) He need make no statement, and any statement made can and may be used against him.

(b) He has a right to counsel.

(c) If he is an indigent person, he may make application for a court-appointed attorney, and upon payment of the application fee he will be assigned counsel as provided by law or applicable rule of criminal procedure; except that, if the defendant is charged with an offense described in section 16-7-301 (4) (a), and, after conferring with the defendant pursuant to section 16-7-301 (4), the prosecutor files a written statement that incarceration is not being sought as provided in section 16-5-501, counsel will not be provided to the defendant.

(d) Any plea he makes must be voluntary on his part and not the result of undue influence or coercion on the part of anyone.

(e) He has a right to bail, if the offense is bailable, and the amount of bail that has been set by the court.

(f) He has a right to a jury trial.

(g) The nature of the charges against him.

(2) The court shall not accept a plea of guilty or nolo contendere (no contest) without first determining that the defendant is advised of all the matters set forth in subsection (1) of this section and also determining:

(a) 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;

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

(c) That he understands the right to trial by jury;

(d) That he understands the possible penalty or penalties and the possible places of incarceration;

(e) 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 the representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any; and

(f) 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 guilty.

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Source: L. 72 : R&RE, p. 222, § 1. C.R.S. 1963: § 39-7-207. L. 90: (1)(c) amended, p. 1039, § 2, effective July 1. L. 92: (1)(c) amended, p. 465, § 1, effective July 1.

Annotation

Am. Jur.2d. See 21 Am. Jur.2d, Criminal Law, §§ 647-653, 656-662, 666-678, 683-685.

C.J.S. See 22 C.J.S., Criminal Law, §§ 398, 403, 405.

This section and rule 11(b), Crim. P., require that a trial court must make certain determinations before it accepts a plea of guilty or a plea of nolo contendere . People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

In pleading guilty, defendant must be adequately advised of nature and critical elements of offense charged and reading of information may suffice. Wilson v. People, 708 P.2d 792 (Colo. 1985).

If the trial judge doubted the credibility of the charge, even though a factual basis for the guilty plea existed, his duty was to vacate the guilty plea, enter a plea of not guilty, and set the case for trial. People v. Worsley, 191 Colo. 351, 553 P.2d 73 (1976).

No set ritual. The overriding consideration in analyzing a record pertaining to a guilty plea or a plea of nolo contendere is that a set ritual is not required. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

Detailed discussion of possible locales of imprisonment not required. Wilson v. People, 708 P.2d 792 (Colo. 1985).

Or precise language in record. If the record reflects that the trial court had assured itself that defendant's plea was voluntary and intelligently entered with full knowledge of the nature and elements of the offense and of the waiver of his rights as an accused person, then lack of precise language in the record expressing these things is not of itself a valid reason to reverse acceptance of a plea of nolo contendere. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

Record must reflect factual basis for guilty plea and factual basis may be established by record as a whole. Wilson v. People, 708 P.2d 792 (Colo. 1985).

Full compliance would reduce challenges. The failure of a trial judge to make certain that the record expressly reflects full compliance with this section and rule 11, Crim. P., before he accepts a plea of guilty, or a plea of nolo contendere, frequently generates a challenge. Full compliance would certainly diminish challenges and appeals. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

The court is not bound by a recommendation; in its discretion it may refuse to grant the district attorney's sentence concession. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Duty to comply with rule 32(e), Crim. P. The provision in rule 11(b)(5), Crim. P. and subsection (2)(e) of this section, that the court will not be bound by representations made to the defendant "unless the representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report...," does not free the court from complying with rule 32(e), Crim. P., which requires that if the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in rule 11(f), Crim. P., it shall so advise the defendant and then call on the defendant to either affirm or withdraw his plea of guilty or nolo contendere. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Merely informing the defendant that the court will not be bound by any recommendation or representation by anyone concerning sentencing or probation does not obviate the necessity of its complying with rule 32(e), Crim. P. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Authority to vacate guilty plea. Although a trial judge's authority to dismiss a criminal charge on his own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited, a trial court does have the authority to vacate a guilty plea and enter a not guilty plea if the charges were not supported by facts appearing in the record of all court appearances and in the presentencing report. People v. Carino, 193 Colo. 412, 566 P.2d 1061 (1977).

A trial court is not generally required to inform a defendant of the collateral consequences of his guilty plea. People v. Moore, 841 P.2d 320 (Colo. App. 1992); People v. Jones, 957 P.2d 1046 (Colo. App. 1997).

To satisfy due process, a defendant must be informed only of the direct consequences of his guilty plea, which include those which have a definite, immediate, and largely automatic effect on the range of possible punishment. People v. Moore, 841 P.2d 320 (Colo. App. 1992); People v. Jones, 957 P.2d 1046 (Colo. App. 1997).

Accordingly, a guilty plea is not invalid for failure of a trial court to warn a defendant of its possible effect on future criminal liability. People v. Heinz, 589 P.2d 931 (Colo. 1979); People v. Moore, 841 P.2d 320 (Colo. App. 1992); People v. Jones, 957 P.2d 1046 (Colo. App. 1997).


 

Colorado Court Rules

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Chapter 29: Colorado Rules of Criminal Procedure

IV: Arraignment and preparation for trial

Rule 11. Pleas

(a) Generally. A defendant personally or by counsel may plead guilty, not guilty, not guilty by reason of insanity (in which event a not guilty plea may also be entered), or with the consent of the court, nolo contendere.

(b) Pleas of Guilty and Nolo Contendere. The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:

(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.

(c) Misdemeanor Cases. In all misdemeanor cases except class 1, the court may accept, in the absence of the defendant, any plea entered in writing by the defendant or orally made by his counsel.

(d) 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 provided 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.

(e) Defense of Insanity.

(1) The defense of insanity must be pleaded at the time of arraignment, except that the court for good cause shown may permit such plea to be entered at any time before trial. It must be pleaded orally, either by the defendant or by his counsel, in the form, "not guilty by reason of insanity". A defendant who does not thus plead not guilty by reason of insanity shall not be permitted to rely on insanity as a defense as to any accusation of any crime; provided, however, that evidence of mental condition may be offered in a proper case as bearing upon the capacity of the accused to form specific intent essential to the commission of a crime. The plea of not guilty by reason of insanity includes the plea of not guilty.

(2) If counsel for the defendant believes that a plea of not guilty by reason of insanity should be entered on behalf of the defendant, but the defendant refuses to permit the entry of such plea, counsel may so inform the court. The court shall then conduct such investigation as it deems proper, which may include the appointment of psychiatrists or psychologists to assist a psychiatrist to examine the defendant and advise the court. After its investigation the court shall conduct a hearing to determine whether the plea should be entered. If the court finds that the entry of a plea of not guilty by reason of insanity is necessary for a just determination of the charge against the defendant, it shall enter such plea on behalf of the defendant, and the plea so entered shall have the same effect as though it had been voluntarily entered by the defendant himself.

(3) If there has been no grand jury indictment or preliminary hearing prior to the entry of the plea of not guilty by reason of insanity, the court shall hold a preliminary hearing prior to the trial of the insanity issue. If probable cause is not established the case shall be dismissed, but the court may order the district attorney to institute civil commitment proceedings if it appears that the protection of the public or the accused requires it.

(f) Plea Discussions and Plea Agreements.

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. He should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for or refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one of the following depending upon the circumstances of the individual case:

(I) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere;

(II) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant's conduct;

(III) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) The trial judge shall not participate in plea discussions.

(5) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions.

(6) Except as to proceedings resulting from a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his defense counsel and the district attorney engaged in plea discussions or made a plea agreement shall not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceeding.

Annotation

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Analysis

I. General Consideration.

II. Pleas of Guilty and Nolo Contendere.

III. Misdemeanor Cases.

IV. Failure or Refusal to Plead.

V. Defense of Insanity.

VI. Plea Bargaining.

I. General consideration

Am. Jur.2d. See 21 Am. Jur.2d, Criminal Law, §§ 600-603, 605, 610-613, 645, 653, 666-673, 683-687, 694, 697, 698, 726-730, 734, 756.

C.J.S. See 22 C.J.S., Criminal Law, §§ 357, 361, 364, 375, 376, 380, 403, 405, 453.

Law reviews. For article, "Attacking Prior Convictions in Habitual Criminal Cases: Avoiding the Third Strike", see 11 Colo. Law. 1225 (1982).

Prosecutor should discuss pleas with defense counsel. A prosecutor should make known a general policy of willingness to consult with defense counsel concerning disposition of charges by pleas. Dabbs v. People, 175 Colo. 273, 486 P.2d 1053 (1971).

And court should allow changes of, and additions to, pleas. Where good cause is shown, it is incumbent upon the trial court to allow changes of plea or additional pleas to accomplish the fair and just determination of criminal charges. Perez v. People, 176 Colo. 505, 491 P.2d 969 (1971).

It is essential that the record show a plea. Wright v. People, 22 Colo. 143, 43 P. 1021 (1896).

Applied in McClendon v. People, 175 Colo. 451, 488 P.2d 556 (1971); Romero v. District Court, 178 Colo. 200, 496 P.2d 1049 (1972); People v. Baca, 179 Colo. 156, 499 P.2d 317 (1972); Hyde v. Hinton, 180 Colo. 324, 505 P.2d 376 (1973); People v. Kelly, 189 Colo. 31, 536, P.2d 39 (1975); People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975); People v. Breazeale, 190 Colo. 17, 544 P.2d 970 (1975); People v. Arnold, 190 Colo. 193, 544 P.2d 968 (1976); People v. Banks, 190 Colo. 295, 545 P.2d 1356 (1976); People v. Smith, 190 Colo. 449, 548 P.2d 603 (1976); People v. Worsley, 191 Colo. 351, 553 P.2d 73 (1976); People v. Carino, 193 Colo. 412, 566 P.2d 1061 (1977); People v. Cole, 39 Colo. App. 323, 570 P.2d 8 (1977); People v. Smith, 195 Colo. 404, 579 P.2d 1129 (1978); Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978); People v. Palmer, 42 Colo. App. 460, 595 P.2d 1060 (1979); People v. Weber, 199 Colo. 25, 604 P.2d 30 (1979). People v. Baca, 44 Colo. App. 167, 610 P.2d 1083 (1980); People v. Adargo, 622 P.2d 593 (Colo. App. 1980); People v. Horton, 628 P.2d 117 (Colo. App. 1980); People v. Shaver, 630 P.2d 600 (Colo. 1981); State v. Laughlin, 634 P.2d 49 (Colo. 1981); People v. Marquez, 644 P.2d 59 (Colo. App. 1981); People v. Velasquez, 641 P.2d 943 (Colo. 1982); Crocker v. Colorado Dep't of Revenue, 652 P.2d 1067 (Colo. 1982); People v. Vollentine, 643 P.2d 800 (Colo. App. 1982); People v. M.A.W., 651 P.2d 433 (Colo. App. 1982); People v. Ramirez, 652 P.2d 1077 (Colo. App. 1982); People in Interest of J.F.C., 660 P.2d 7 (Colo. App. 1982); Flower v. People, 658 P.2d 266 (Colo. 1983); People v. Akins, 662 P.2d 486 (Colo. 1983).

II. Pleas of guilty and nolo contendere

This rule sets forth required guidelines for the entry of a plea upon arraignment. People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973).

This rule itemizes certain requirements which must be followed by a court before it may accept a plea of guilty or one of nolo contendere. People v. Van Hook, 36 Colo. App. 226, 539 P.2d 507 (1975).

Purpose of section (b). Section (b) contemplates that the transcribed colloquy between the court and the defendant will eliminate the need to resort to a subsequent fact-finding proceeding in order to determine whether a guilty plea was voluntarily and understandingly made. People v. Quintana, 634 P.2d 413 (Colo. 1981).

Judge to determine fulfillment of certain conditions before accepting plea. Section 16-7-207 and section (b) of this rule require that a trial court must make certain determinations before it accepts a plea of guilty or a plea of nolo contendere. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975); People v. Gleason, 180 Colo. 71, 502 P.2d 69 (1972); Laughlin v. State, 44 Colo. App. 341, 618 P.2d 689 (1980), rev'd on other grounds, 634 P.2d 49 (Colo. 1981).

Trial courts must adhere strictly to the requirements of this rule when pleas of guilty are being considered. People v. Sandoval, 188 Colo. 431, 535 P.2d 1120 (1975).

As a valid plea of guilty waives substantially all the fundamental procedural rights afforded an accused in a criminal proceeding, such as his rights to the assistance of counsel, confrontation of witnesses, and trial by jury. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972).

But compliance not shown by use of printed form. Compliance with this rule cannot be demonstrated solely by reliance upon a printed form. People v. Van Hook, 36 Colo. App. 226, 539 P.2d 507 (1975).

And formal ritual is not required by this rule. People v. Duran, 183 Colo. 180, 515 P.2d 1117 (1973); People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973).

Satisfaction of this rule does not require that a prescribed ritual or wording be employed, but rather the substance of the circumstances surrounding the plea should prevail over form. People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974); People v. Cushon, 650 P.2d 527 (Colo. 1982).

The overriding consideration in analyzing a record pertaining to a guilty plea or a plea of nolo contendere is that a set ritual is not required. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

A trial court is not required to follow any particular formula for advising a defendant at a preliminary hearing. People v. Thimmes, 643 P.2d 778 (Colo. App. 1981).

So that reading charge may be sufficient. Where the language of a charge is not highly technical, the reading of the charge is sufficient explanation. People v. Wright, 662 P.2d 489 (Colo. App. 1982), aff'd, 690 P.2d 1257 (Colo. 1984); People v. Muniz, 667 P.2d 1377(Colo. 1983); People v. Cabral, 698 P.2d 234 (Colo. 1985); People v. Wilson, 708 P.2d 792 (Colo. 1985) (term "feloniously" sufficiently informed defendant of mens rea element of the offense of rape); People v. Trujillo, 731 P.2d 649 (Colo. 1986).

Effect of noncompliance with rule. Where rule is not complied with, the defendant's conviction will be reversed and the cause will be remanded to the trial court to set aside the plea and to rearraign the defendant. People v. Golden, 184 Colo. 311, 520 P.2d 127 (1974); People v. Baca, 186 Colo. 95, 525 P.2d 1146 (1974).

Failure of trial court to advise or to make a proper inquiry precludes treating the defendant's plea of guilty as a voluntary and intelligent waiver of his constitutional rights, so defendant may withdraw his plea of guilty and be permitted to plea anew. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972); People v. Gleason, 180 Colo. 71, 502 P.2d 69 (1972).

Failure of the trial court to comply with each requirement of this rule affords defendants the opportunity to later challenge the trial court's refusal to permit a withdrawal of a guilty plea. People v. Sandoval, 188 Colo. 431, 535 P.2d 1120 (1975).

Without showing of compliance, guilty plea not acceptable. Without an affirmative showing of compliance with the mandatory provisions of this rule, a plea of guilty cannot be accepted, and any judgment and sentence which is entered following the plea is void. People v. Randolph, 175 Colo. 454, 488 P.2d 203 (1971). See Martinez v. People, 152 Colo. 521, 382 P.2d 990 (1963); Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971).

Thus, conduct of proceedings to appear in record. The conduct of proceedings under this rule must affirmatively appear in the record, since an appellate court cannot presume a waiver of constitutional rights from a silent record. People v. Brewer, 648 P.2d 167 (Colo. App. 1982).

But lack of precise language not grounds for reversal. If the record reflects that the trial court had assured itself that defendant's plea was voluntary and intelligently entered with full knowledge of the nature and elements of the offense and of the waiver of his rights as an accused person, then lack of precise language in the record expressing these things is not of itself a valid reason to reverse acceptance of a plea of nolo contendere. People v. Lambert, 189 Colo. 264, 539 P.2d 1238 (1975).

Test for proper plea advisement. In deciding if a plea advisement was proper, the dispositive issue is whether the constitutional requirements of voluntariness then in effect were met. People v. Wright, 662 P.2d 489 (Colo. App. 1982), aff'd, 690 P.2d 1257 (Colo. 1984).

Record must show factual basis for plea. A guilty plea cannot be accepted if the record lacks an affirmative showing of a factual basis. People v. Cushon, 631 P.2d 1164 (Colo. App. 1981), rev'd on other grounds, 650 P.2d 527 (Colo. 1982).

As guilty plea cannot stand if it lacks a factual basis and is not voluntary and accurate. People v. Alvarez, 181 Colo. 213, 508 P.2d 1267 (1973); People v. Hutton, 183 Colo. 388, 517 P.2d 392 (1973).

Nor may nolo contendere plea. Nolo contendere plea that is voluntarily and understandingly made, with a factual basis that appears in the record, should be upheld. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973).

Although court not required to ascertain factual basis for nolo contendere plea. There is no requirement that a court ascertain that there is a factual basis for a plea of nolo contendere when such a plea is permitted. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973).

Entering of guilty plea to lesser charge does not automatically waive factual basis requirement of subsection (b)(6). People v. Cushon, 631 P.2d 1164 (Colo. App. 1981), rev'd on other grounds, 650 P.2d 527 (Colo. 1982).

Record must affirmatively show that accused understandingly and voluntarily waived his constitutional rights. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972).

Compliance with this rule requires that there be an adequate basis in the record to support a determination by the court that the defendant understands the nature of the charge to which he is pleading guilty. People v. Montoya, 667 P.2d 1377 (Colo. 1983).

Compliance with this rule creates an adequate record to support a determination by both the arraigning court and a reviewing court of the defendant's understanding of the crime to which a plea is tendered. People v. Leonard, 673 P.2d 37 (Colo. 1983).

Even when the defendant or his attorney waives the formal reading of the information, such waiver does not serve to dispense with the express mandate of this rule that the court not accept the plea of guilty without first determining that the defendant understands the nature of the charge. People v. Montoya, 667 P.2d 1377 (Colo. 1983).

Silent record insufficient. Where there are no facts in the record to establish the defendant's complete understanding of the nature of the offense with which he is charged, then, when the state attempts to prove waiver of such knowledge, it bears a heavy burden, and a silent record will not suffice. People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972).

Application of Boykin v. Alabama. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.2d 274 (1969), holding that waiver of the privilege against self-incrimination, of the right to trial by jury, and of the right to confrontation cannot be presumed by a silent record, is given only prospective application. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973); People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974); People v. Malouff, 721 P.2d 159 (Colo. App. 1986).

Record held to show defendant's knowing and intelligent waiver of rights. See People v. Chavez, 650 P.2d 1310 (Colo. App. 1982); People v. Chavez, 730 P.2d 321 (Colo. 1986).

Trial court's failure to explain elements of second degree burglary was cured by evidence in record showing defendant understood and had knowledge of elements of second degree burglary. Wieder v. People, 722 P.2d 396 (Colo. 1986).

While the court gave a proper advisement under this rule, it did not specifically evaluate the totality of the circumstances surrounding juvenile defendant's waiver of critical constitutional rights. After applying the totality of circumstances standard, defendant did not knowingly and voluntarily waive his constitutional rights when he entered a guilty plea. People v. Simpson, 51 P.3d 1022 (Colo. App. 2001), rev'd on other grounds, 69 P.3d 79 (Colo. 2003).

Guilty plea must be voluntarily and intelligently given. In order for a court to accept a plea of guilty, there must be an affirmative showing that it was given voluntarily and intelligently. Martinez v. Ricketts, 498 F. Supp. 893 (D. Colo. 1980); People v. Drake, 785 P.2d 1257 (1990).

A plea of guilty, to be valid, must be intelligently made. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

For a waiver of such the fundamental rights which results from the acceptance of a guilty plea, a defendant must voluntarily, knowingly, and intentionally relinquish those rights. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972).

A plea of guilty must be entered voluntarily and with full understanding of the essential elements of the offense to withstand constitutional scrutiny. People v. Cisneros, 665 P.2d 145 (Colo. App. 1983).

Defendant who is subject to sentencing act must be informed of the penalties under such act prior to acceptance of guilty plea or else the plea cannot be voluntarily and understandingly entered. People v. Sutka, 713 P.2d 1326 (Colo. App. 1985).

Due process of law mandates that a guilty plea must be voluntary and understandingly made before a valid judgment can be entered thereon. People v. Chavez, 730 P.2d 321 (Colo. 1986).

Test whether plea intelligently and voluntarily made. When determining whether pleas of guilty were intelligently and voluntarily entered, the test to be applied is that a plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes). Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971); Ward v. People, 172 Colo. 244, 472 P.2d 673 (1970); England v. People, 175 Colo. 236, 486 P.2d 1055 (1971); People v. Mason, 176 Colo. 544, 491 P.2d 1383 (1971); People v. Cumby, 178 Colo. 31, 495 P.2d 223 (1972); Bresnahan v. Patterson, 352 F. Supp. 1180 (D. Colo. 1973); People v. Musser, 187 Colo. 198, 529 P.2d 626 (1974).

However, every relevant factor need not be correctly assessed. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. Simms v. People, 175 Colo. 191, 486 P.2d 22 (1971).

Defendant must understand elements of offense and his rights. Rather than any ritualistic formalism, this rule requires only that a defendant be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt after being made aware of his various rights. People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973).

The constitution requires that the defendant be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt when pleading guilty, but a formalistic recitation by the trial judge at a providency hearing is not a constitutional requisite. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973); People v. Duran, 183 Colo. 180, 515 P.2d 1117 (1973); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974).

No guilty plea can be deemed valid unless a defendant understands the nature and elements of the crime with which he stands charged. People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972); People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974); People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974); People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974); People v. Murdock, 187 Colo. 418, 532 P.2d 43 (1975); Harshfield v. People, 697 P.2d 391 (Colo. 1985); People v. Wade, 708 P.2d 1366 (Colo. 1985); People v. Cisneros, 824 P.2d 16 (Colo. App. 1991).

A guilty plea cannot stand as voluntarily and knowingly entered unless the defendant understands the nature of the crime charged, and this requirement is not met unless the critical elements of the crime charged are explained in terms which are understandable to the defendant. People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979).

As well as consequences of guilty plea. Every defendant that stands at the bar of justice charged with a crime must be advised and must know what the possible consequences are of his tendered plea of guilty. People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).

A plea of guilty must be a genuine one by a defendant who is guilty and who understands his situation, his rights, and the consequences of his plea, and is neither deceived nor coerced. Westendorf v. People, 171 Colo. 123, 464 P.2d 866 (1970).

A defendant must be advised of the pertinent fundamental constitutional rights and must understand the consequences of a guilty plea for him to voluntarily and understandingly enter such a plea and waive the right to a jury trial. People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

And trial judge must determine that defendant understands nature of offense with which he stands charged. People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972); People v. Riney, 176 Colo. 221, 489 P.2d 1304 (1971); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974); People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974).

And consequences of act. Prior to the acceptance of a guilty plea the trial court must be assured that the defendant is fully aware of the consequences of his act. People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974).

Court's determination may be implied. Where the trial judge advises the defendant that his plea has to be voluntary and that any promises which have been made are not binding on the court, but judge fails to ask the defendant whether any such promises or coercion were involved in his decision to plead guilty, implicit in the court's acceptance of the guilty plea is its determination that the plea was intelligently and voluntarily entered. People v. Derrerra, 667 P.2d 1363 (Colo. 1983).

Mere assertion of understanding of charge does not satisfy rule. The mere assertion of understanding of a charge by the defendant does not satisfy either the letter or spirit of this rule, but it must be clear, in fact, that the defendant understands the elements of the charge. People v. Sanders, 185 Colo. 356, 524 P.2d 299 (1974).

Court to explain elements of crime and meaning of guilty plea. The requirement of understanding is not met unless critical elements of crime charged are explained in terms understandable to the defendant and unless meaning of guilty plea is explained in relation to each of such elements. People v. Gleason, 180 Colo. 71, 502 P.2d 69 (1972); People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974); People v. Van Hook, 36 Colo. App. 226, 539 P.2d 507 (1975); People v. Steelman, 200 Colo. 177, 613 P.2d 334 (1980); People v. Wieghard, 709 P.2d 81 (Colo. App. 1985); Waits v. People, 724 P.2d 1329 (Colo. 1986).

And reading simply worded information may suffice. By reading an information, which is couched in language which is easily understandable to a person with ordinary intelligence and by inquiring into the defendant's understanding of the charge before a plea of guilty was accepted, the trial judge satisfied the requirements of this rule. People v. Lottie, 183 Colo. 308, 516 P.2d 430 (1973).

In explaining the critical elements of the charge to the defendant, unless the language of the charge is highly technical, no more full explanation of the substantive crime could be given than the charge itself. People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979); People v. Moore, 636 P.2d 1290 (Colo. App. 1981); People v. Wieghard, 709 P.2d 81 (Colo. App. 1985).

Where language was readily understandable by person of average intelligence and defendant affirmatively acknowledged he understood nature of charge, reading of information was sufficient. Wilson v. People, 708 P.2d 792 (Colo. 1985).

The court is not required to advise a non-English speaking defendant that an official interpreter may be utilized for communication with the defendant's attorney. People v. Ochoa-Magana, 36 P.3d 141 (Colo. App. 2001).

If defendant enters guilty plea under mistaken assurance that defendant's immigration status would not be affected by guilty plea, then plea may not have been made knowingly, voluntarily, and intelligently. People v. Nguyen, 80 P.3d 903 (Colo. App. 2003).

Explanation of "unlawful act" more properly described burglary than the trespass with which the defendant was charged but the court concluded that it adequately apprised the defendant of the necessary elements of first degree criminal trespass. People v. Wood, 844 P.2d 1299 (Colo. App. 1992).

Court must also explain attendant waiver of rights. In accordance with this rule, the trial court must make certain, by inquiry of the defendant, that he understands that the guilty plea stands as a waiver of nearly all of his rights as guaranteed by the fifth and sixth amendments to the United States constitution. People v. Sandoval, 188 Colo. 431, 535 P.2d 1120 (1975).

However, trial court is not required to advise defendant, before accepting his guilty plea, of the right to testify on his own behalf. People v. Malouff, 721 P.2d 159 (Colo. App. 1986).

And definite, immediate, and automatic consequences of plea. The judge who accepts a plea of guilty is required to inform the defendant only of those consequences which have a definite, immediate and largely automatic effect on the range of a defendant's punishment. People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979).

Where consequence of guilty plea to a crime of moral turpitude subjected defendant to mandatory deportation proceeding, defendant was denied effective assistance of counsel since counsel was unaware of deportation consequence and therefore defendant was entitled to withdraw plea and plead anew. People v. Pozo, 712 P.2d 1044 (Colo. App. 1985), rev'd on other grounds, 746 P.2d 523 (Colo. 1987).

A mandatory parole term is such a consequence because parole imposes a significant limitation on a defendant's freedom during the term of parole. People v. Tyus, 776 P.2d 1143 (Colo. App. 1989); People v. Sandoval, 809 P.2d 1058 (Colo. App. 1990), overruled in Craig v. People, 986 P.2d 951 (Colo. 1999).

Trial court, therefore, must advise the defendant of mandatory parole even if a plea agreement contemplates a sentence to probation or community corrections. The only exception is if the parties stipulate to a sentence to probation or to community corrections, the judge explicitly accepts and agrees to be bound by the stipulation, and the judge so advises the defendant. Dawson v. People, 30 P.3d 213 (Colo. 2001).

Mandatory sentencing of defendant on parole status under § 18-1-105 is a definite, immediate, and automatic consequence of plea which defendant must understand. People v. Chippewa, 713 P.2d 1311 (Colo. App. 1985).

A proper advisement on the subject of mandatory parole requires that a defendant be informed that he or she is subject to a period of mandatory parole, the maximum possible length of that period, and the fact that mandatory parole is a consequence distinct from imprisonment. People v. Laurson, 70 P.3d 564 (Colo. App. 2002).

The proper inquiry is whether the record as a whole demonstrates that a defendant was given sufficient notice of the issue. When a defendant indicates at the providency hearing that he or she understood the matters contained in a written guilty plea advisement form, the burden of proof is on the defendant to show that the apparent waiver was not effective. People v. Laurson, 70 P.3d 564 (Colo. App. 2002).

Failure to properly advise of the term of mandatory parole is harmless if the length of parole and imprisonment together does not exceed the total term of imprisonment to which the defendant was advised. Craig v. People, 986 P.2d 951 (Colo. 1999) (overruling People v. Sandoval, 809 P.2d 1058 (Colo. App. 1990)).

Thus, it was harmless error where the defendant received an inadequate mandatory advisement but was sentenced to a total sentence of 11 years, plus three years of mandatory parole, when he could have been sentenced to a maximum of 24 years. Dawson v. People, 30 P.3d 213 (Colo. 2001).

No script or formula is required so long as the advisement adequately informs defendant of the mandatory parole requirement. People v. Flagg, 18 P.3d 792 (Colo. App. 2000).

Where defendant was advised that his sentence would include a term of parole in addition to a stipulated maximum term of incarceration, it is not reasonable to hold that the full range of penalties that the defendant risked receiving is limited to the term of incarceration specified in the plea agreement or the Crim. P. 11 advisement. If defendant was advised of mandatory parole but not its duration, his sentence cannot be modified and the only available remedy under the facts is withdrawal of the guilty plea. Clark v. People, 7 P.3d 163 (Colo. 2000).

An agreement that is silent as to parole should not be construed as containing a promise to eliminate or reduce the mandatory period of parole. A plea agreement to reduce or modify the statutorily mandated period of parole calls for an illegal sentence. Craig v. People, 986 P.2d 951 (Colo. 1999) (overruling People v. Sandoval, 809 P.2d 1058 (Colo. App. 1990)).

Defendant's understanding of the mandatory parole requirement and the lack of indication in the record that the parties' negotiations included the issue of mandatory parole supported trial court's conclusion that the parties' agreement to a "ten year cap" pertained only to the imprisonment component and did not include the five-year mandatory parole period. People v. Wright, 53 P.3d

730 (Colo. App. 2002).

A mittimus that does not specify the mandatory parole period should be read as including the appropriate mandatory parole period and must be corrected. Craig v. People, 986 P.2d 951 (Colo. 1999) (overruling People v. Sandoval, 809 P.2d 1058 (Colo. App. 1990)).

A trial court is not generally required to inform a defendant of the collateral consequences of his guilty plea. People v. Moore, 841 P.2d 320 (Colo. App. 1992).

To satisfy due process, a defendant must be informed only of the direct consequences of his guilty plea, which include those which have a definite, immediate, and largely automatic effect on the range of possible punishment. People v. Moore, 841 P.2d 320 (Colo. App. 1992).

Accordingly, a guilty plea is not invalid for failure of a trial court to warn a defendant of its possible effect on future criminal liability. People v. Heinz, 589 P.2d 931 (Colo. 1979); People v. Moore, 841 P.2d 320 (Colo. App. 1992).

Although the defendant's sentence to imprisonment and mandatory parole was not inevitable at the time of his pleas and, in fact, could not have been lawfully imposed prior to his subsequent breach of the terms of his deferred sentencing agreement, it was a direct consequence of his plea to burglary and, therefore, the defendant should have been advised of the mandatory parole. People v. Marez, 39 P.3d 1190 (Colo. 2002).

Defendant cannot be lawfully sentenced for a crime to which he has pled guilty to a term longer than that of which he was advised when it was still within his power to reject the plea. People v. Marez, 39 P.3d 1190 (Colo. 2002).

Case must be remanded to allow defendant the opportunity to affirm or withdraw his guilty plea where the trial court's rejection of the sentence recommendation contained in the plea agreement calls into question the voluntariness of that plea and the defendant had no opportunity to affirm or withdraw that plea . People v. Walker, 46 P.3d 495 (Colo. App. 2002).

Possibility that required counseling cannot be completed if the defendant does not admit guilt and that probation may therefore be revoked is a collateral consequence of a guilty plea. Person who entered an Alford plea and could not complete required counseling because of failure to admit guilt could have his or her probation revoked. People v. Birdsong, 958 P.2d 1124 (Colo. 1998).

Due process requires compliance only with the mandatory provisions of this rule which inform an accused of the constitutional protection and the critical elements of the charge he faces, and not the factual basis of the plea or the possible defenses to the charge. People v. Moore, 841 P.2d 320 (Colo. App. 1992).

However, the appropriate remedy is not to allow withdrawal of the plea, but reduce the sentence to the maximum that the defendant could receive under the plea agreement. People v. Sandoval, 809 P.2d 1058 (Colo. App. 1990).

And waiver of previously raised defenses. Where the defendant previously filed a notice of alibi defense, the trial court, in accepting a later guilty plea, should have assiduously adhered to the requirements of this rule and should have even made a more detailed inquiry of the defendant to make certain that he was fully aware that by pleading guilty, he was, in effect, making a judicial statement that he was guilty of the offense charged and that his alibi defense was in fact baseless. People v. Sandoval, 188 Colo. 431, 535 P.2d 1120 (1975), overruled in Craig v. People, 986 P.2d 951 (Colo. 1999).

But judge not required to point out available affirmative defenses. Absent from the provisions of section (b) is any requirement that the trial judge in accepting a guilty plea explain to the defendant possible affirmative defenses to the crime charged; the rationale is that such advice is properly the role of counsel. People v. Gorniak, 197 Colo. 289, 593 P.2d 349 (1979); People v. Nieto, 715 P.2d 1262 (Colo. App. 1985).

And need not be informed of possible future operation of habitual criminal statutes. It is not required that an adult, before he enters an otherwise uncoerced guilty plea, be informed of the operation of the habitual criminal statutes in the event he should in the future be convicted of illegal acts. People v. District Court, 191 Colo. 298, 552 P.2d 297 (1976).

Trial court's oversight may be cured. An oversight on the part of the trial court in a providency hearing may be cured if the record, as a whole, discloses evidence of understanding and knowledge. People v. Moore, 636 P.2d 1290 (Colo. App. 1981).

The degree of explanation that a court is required to provide a defendant at a providency hearing is dependent upon the nature and complexity of the crime. People v. Muniz, 667 P.2d 1377 (Colo. 1983); Ramirez v. People, 682 P.2d 1181 (Colo. 1984); People v. Cabral, 698 P.2d 234 (Colo. 1985); People v. District Court, Arapahoe County, 868 P.2d 400 (Colo. 1994).

And mere reading of a charge may be sufficient if the charge itself is readily understandable to persons of ordinary intelligence. People v. Muniz, 667 P.2d 1377 (Colo. 1983); People v. Cabral, 698 P.2d 234 (Colo. 1985).

By reading the charges, which were couched in language easily understandable to a person of ordinary intelligence, by briefly explaining the mens rea necessary, and by inquiring into the defendant's understanding of the charges, the trial judge adequately advised the defendant and provided a fully sufficient basis for the court's determination that the pleas were freely, voluntarily, and intelligently given. People v. District Court, Arapahoe County, 868 P.2d 400 (Colo. 1994).

Defining "attempt" as conduct constituting a substantial step toward the commission of the crime is sufficient for the purpose of providing a defendant with the necessary understanding of the crime charged. People v. District Court, Arapahoe County, 868 P.2d 400 (Colo. 1994).

A defendant need not be advised of the right to appeal before a guilty plea may be said to be knowingly and voluntarily given. People v. District Court, Arapahoe County, 868 P.2d 400 (Colo. 1994).

Court need not advise defendant of the prosecution's burden to prove his guilt beyond a reasonable doubt as long as defendant is advised that the prosecution has the burden of proof. People v. Wells, 734 P.2d 655 (Colo. App. 1986).

Guilty plea of defendant who was not aware of possibility of consecutive sentencing when he entered plea is constitutionally deficient. People v. Peters, 738 P.2d 395 (Colo. App. 1987).

Defendant adequately advised regarding the special offender sentence enhancer where the sentences defendant received were within the range of sentences he or she was advised of and were on the low end of the range required by the special offender statute. Thus, defendant was not prejudiced by the erroneous advisements, and the fact that they understated the maximum allowable sentence did not undermine the validity of his or her guilty plea. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).

Failure to advise defendant of a mandatory parole obligation did not invalidate his guilty plea since defendant was correctly advised that he could be incarcerated for a term of from six months to four years and defendant's sentence of one year plus one year parole fell below the four-year maximum. People v. Coleman, 844 P.2d 1215 (Colo. App. 1992).

To understand the "possible penalty or penalties", the court must advise the defendant of mandatory parole for all class 2 through class 6 felony convictions that involve a sentence of imprisonment. Young v. People, 30 P.3d 202 (Colo. 2001).

Record of providency hearing helpful in satisfying rule. A record of a providency hearing demonstrating compliance with this rule should be deemed supportive of the conclusion that the defendant did enter his or her guilty plea voluntarily and understandingly. People v. Wade, 708 P.2d 1366 (Colo. 1985).

The proper basis for analyzing the constitutional validity of a guilty plea should include not only the statements made during the providency hearing but also those statements made by both defendant and defendant's attorney in the petition to plead guilty. People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

Evidence in record that defendant understood nature and elements of crime. See People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973); People v. Waits, 695 P.2d 1176 (Colo. App. 1984), aff'd in part, rev'd in part on other grounds, 724 P.2d 1329 (Colo. 1986).

Validity of guilty plea should not be based solely on the colloquy during the providency hearing. The proper basis for determining the validity of a guilty plea should include not only the statements made during a providency hearing but also the statements made by the defendant and the defendant's attorney in the petition to plead guilty. People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

Upon entry of a guilty plea, suppression issues become moot. People v. Waits, 695 P.2d 1176 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 724 P.2d 1329 (Colo. 1986).

Trial court to determine defendant's capacity to plead, where appropriate. If there is any question, the trial court has the duty to determine the defendant's mental capacity to understand the nature and effect of such a plea before accepting it. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

Where the trial court was aware of the possible mental infirmities of the defendant, it should have made sure he clearly, voluntarily, and knowingly entered his guilty plea. People v. Brown, 187 Colo. 244, 529 P.2d 1338 (1974).

And if a defendant is insane, plea of guilty should be stricken, and the sentence vacated. Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968); Simms v. People, 175 Colo. 191, 486 P.2d 22 (1971); Moneyhun v. People, 175 Colo. 220, 486 P.2d 434 (1971).

As guilty plea not acceptable from legally insane. As a plea of guilty cannot be accepted where the evidence before the judge suggests that the accused may be legally insane, until his sanity is finally determined; if the plea is accepted prior to such a determination, the judgment is potentially void, depending on whether the accused had the capacity to enter a plea. Martinez v. Tinsley, 241 F. Supp. 730 (D. Colo. 1965).

Sixteen-year old competent to enter guilty plea. Although a trial court should act with great caution in accepting a guilty plea from a 16-year old, such a defendant is competent. Bresnahan v. Patterson, 352 F. Supp. 1180 (D. Colo. 1973).

Although restraints may be one circumstance that affects defendant's decision to plead guilty, the constitutionality of a defendant's restraints at the time of entry of his pleas is not relevant to determine whether he entered the plea voluntarily. People v. Kyler, 991 P.2d 810 (Colo. 2000).

When bargain upon which plea based not honored. If plea of guilty results from plea bargaining and bargain is not honored, the judgment must be vacated. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).

Effect of invalid plea upon bargain. When an invalid guilty plea is a result of plea bargaining, vacation of the plea results in an abrogation of the bargain, and there is no impediment to the reinstatement of the charges dismissed as a result of the bargain. People v. Mason, 176 Colo. 544, 491 P.2d 1383 (1971); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974).

Plea bargaining per se does not invalidate a guilty plea. Maes v. People, 164 Colo. 481, 435 P.2d 893 (1968); Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967); Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967); Brewer v. People, 168 Colo. 505, 452 P.2d 370 (1969).

Purpose of subsection (b)(5). Subsection (b)(5) of this rule is specifically designed to insure that a criminal defendant voluntarily pleads to a charge unfettered by promises of a light sentence or of probation, and is in addition to the inquiry concerning coercion or threats. People v. Golden, 184 Colo. 311, 520 P.2d 127 (1974).

Subsection (b)(5) applies to representations and promises by defendant's own counsel. People v. Golden, 184 Colo. 311, 520 P.2d 127 (1974).

Pleas of guilty induced by threats or promises are not valid . Normand v. People, 165 Colo. 509, 440 P.2d 282 (1968).

As such pleas involuntary. A plea of guilty is clearly involuntary if it is induced by threats or by a promise of lenient sentence. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).

And involuntary guilty plea violates due process. A guilty plea which is not entered voluntarily and knowingly is obtained in violation of due process guarantees. People v. Moore, 636 P.2d 1290 (Colo. App. 1981).

Defendant's burden to set aside plea. Upon postconviction procedures to set aside an involuntary plea, it becomes the burden of the defendant to establish that the plea was entered because of coercion. Normand v. People, 165 Colo. 509, 440 P.2d 282 (1968).

With evidence to overcome presumption of valid plea. The burden is upon the defendant to produce sufficient evidence to overcome the presumption of validity and regularity surrounding entry of his plea of guilty. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

And every reasonable presumption against waiver must be indulged. People v. Harrington, 179 Colo. 312, 500 P.2d 360 (1972).

Withdrawal of guilty plea generally should not be denied. The withdrawal of a plea of guilty should not be denied in any case where it is the least evident that the ends of justice would be subserved by permitting not guilty to be pleaded in its place. Burman v. People, 172 Colo. 247, 472 P.2d 121 (1970).

Denial of motion to withdraw guilty pleas was not an abuse of discretion by the trial court where the pleas were entered in accordance with due process of law and this rule. People v. Chavez, 730 P.2d 321 (Colo. 1986).

Defendant was properly advised of his right to a jury trial and knowingly and voluntarily waived that right where the record shows that he executed a five-page "Petition to Enter Plea of Guilty", the trial court held a providency hearing and ascertained that the defendant had read and discussed the petition with his attorney and understood the petition, and the petition was signed by the defense attorney who certified that he had fully discussed the matter with the defendant, the attorney considered the defendant to be competent to understand the effect of the guilty plea, and the attorney recommended the court accept the plea. People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

Requirement that defendant understand the possible penalty when pleading guilty met where defendant signed a "Petition to Enter Plea of Guilty" that recited the possible years of incarceration in both the presumptive and extraordinary ranges in addition to the possible fines to which the defendant would be subject, the possibility of consecutive sentencing, mandatory sentencing in the aggravated range, the factors precluding grant of probation, and incarceration as a condition of probation, the plea was entered with an express stipulation that defendant receive a three-year sentence, the trial court at the providency hearing advised the defendant of the stipulation and further advised him that, if at the sentencing hearing, the court rejected the stipulation, defendant would be allowed to withdraw the plea, and defendant responded that he understood. People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

Denial of motion to withdraw guilty plea was not an abuse of discretion where the court held a fact hearing before denying defendant's motion, the judge had also conducted the advisement, the court found that defendant's plea had been voluntarily entered, and justice would not be subverted by denying defendant's request . People v. Weed, 830 P.2d 1095 (Colo. App. 1991).

Valid guilty plea requires that defendant understand the possible penalty or penalties which could be imposed. People v. Chavez, 902 P.2d 891 (Colo. App. 1995).

Subsection (b)(4) requires that defendant be advised, prior to the entry of a guilty plea, of the maximum possible sentence to which that plea will subject him or her, including the maximum that may result if the sentences are ordered to be served consecutively. People v. Peters, 738 P.2d 395 (Colo. App. 1987); People v. Phillips, 964 P.2d 628 (Colo. App. 1998).

Court not required to advise defendant of the possibility of consecutive sentences that might result from crimes not yet committed or sentences or charges not pending. People v. Phillips, 964 P.2d 628 (Colo. App. 1998).

Fact that defense counsel may not have advised client of maximum penalty defendant might be sentenced to does not form the basis for vacating a guilty plea where court gave defendant a complete advisement with respect to the possible penalties, including presumptive and aggravated range penalties for each conviction and the difference between concurrent and consecutive sentences. People v. Chavez, 902 P.2d 891 (Colo. App. 1995).

And showing of reason for plea change within discretion of court. Whether a showing of "fair and just reason" for a change of plea was made is a matter within the discretion of the trial court, and the Colorado supreme court will intervene only if the court has abused its discretion. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).

In determining whether defendant received a proper advisement under the rule, the court looks to whether the record as a whole shows defendant received sufficient information as to be fairly placed on notice of the matter in question. Young v. People, 30 P.3d 202 (Colo. 2001).

If an advisement indicates an affirmative waiver, the defendant has the burden to prove, by a preponderance of the evidence, the ineffectiveness of his apparent waiver. Young v. People, 30 P.3d 202 (Colo. 2001).

Burden on defendant. The burden of demonstrating a "fair and just reason" for a change of plea rests on the defendant. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).

If the advisement is infirm, the court determines if it can correct the error. If the error cannot be corrected, the defendant can withdraw his plea. Young v. People, 30 P.3d 202 (Colo. 2001).

The trial court is not bound by the plea agreement, and has an independent duty to examine the appropriate sentence prior to issuance of that sentence. On review, the court looks at the maximum statutory exposure recited by the trial court or included in the documentation. Young v. People, 30 P.3d 202 (Colo. 2001).

Except when the trial court explicitly states at the providency hearing that it will accept and agree to be bound by the plea agreement, and so advises the defendant. Young v. People, 30 P.3d 202 (Colo. 2001).

Who must show that denial would subvert justice. To warrant a change of plea before entry of a sentence, there must be some showing that denial of the request will subvert justice. People v. Gutierrez, 622 P.2d 547 (Colo. 1981).

Gutierrez distinguished where the defendant acknowledged his own guilt rather than an independent trier of fact that determined defendant's guilt based on sworn trial testimony. People v. Schneider, 25 P.3d 755 (Colo. 2001).

Use of statements made in conjunction with withdrawn or rejected guilty plea. A defendant who challenges the voluntariness or reliability of statements made in the course of tendering a guilty plea which is subsequently withdrawn or rejected and is later sought to be used against him at trial for impeachment purposes is entitled to a hearing which provides the safeguards set forth in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964), before those statements may be used against him. People v. Cole, 195 Colo. 483, 584 P.2d 71 (1978).

The prosecution has the right to cure a deficient record by offering evidence at a Rule 35(c) hearing which establishes that the defendant's plea was constitutionally obtained. People v. Lesh, 668 P.2d 1362 (Colo. 1983).

Jurisdictional defects not waived by plea. Jurisdictional defects, such as insufficiency of a charging instrument, are not waived by a plea of nolo contendere. People v. Roberts, 668 P.2d 977 (Colo. App. 1983).

Limitation on use of plea accepted in violation of rule. Conviction based on plea accepted in violation of this rule cannot be used in a later proceeding to support the imposition of statutory liabilities. People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979).

A plea accepted in violation of this rule may not be used to support a conviction for purposes of the habitual traffic offender statute. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

Substantial compliance with subsection (b)(7). District attorney's oral consent to entry of a guilty plea, made on the record at the providency hearing, substantially complies with the requirements of subsection (b)(7). People v. Mascarenas, 643 P.2d 786 (Colo. App. 1981).

Evidence that requirements of rules not complied with. See People v. Van Hook, 36 Colo. App. 226, 539 P.2d 507 (1975).

III. Misdemeanor cases.

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More simplified procedures can properly be used for minor offenses than those required to be followed in receiving a plea of guilty in serious criminal cases. Cave v. Colorado Dept. of Rev., 31 Colo. App. 185, 501 P.2d 479 (1972).

Procedure for plea to misdemeanor or traffic offense. Before accepting a plea of guilty or nolo contendere to a misdemeanor or traffic offense, the trial court must be satisfied that the defendant's decision to acknowledge guilt has been made knowingly and understandingly. People v. Lesh, 668 P.2d 1362 (Colo. 1983).

IV. Failure or refusal to plead.

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When court may enter plea. Where a trial court denies a motion to dismiss for failure to rearraign on an amended information because the amendment is not one of substance, when counsel calls the court's attention to the amended information during the course of the trial, the court may follow the provisions of Crim. P. 11(d) and enter a plea of not guilty, allowing the trial to proceed. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972).

V. Defense of insanity

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Fact that defendant is insane does not conclusively render him incompetent to proceed or enter a plea of guilty. People v. Blehm, 791 P.2d 1177 (Colo. App. 1989), aff'd in part and rev'd in part, 817 P.2d 988 (Colo. 1991).

Plea of not guilty by reason of insanity includes a not guilty plea. Sanchez v. District Court, 200 Colo. 33, 612 P.2d 519 (1980).

Section (e) is to be liberally construed in favor of defendants. Martinez v. People, 179 Colo. 197, 499 P.2d 611 (1972); Ellis v. District Court, 189 Colo. 123, 538 P.2d 107 (1975); Labor v. Gibson, 195 Colo. 416, 578 P.2d 1059 (1978).

Common-law bar on pleading and trial of mentally ill. It has long been the rule of the common law that a person cannot be required to plead to an indictment or be tried for a crime while he is so mentally disordered as to be incapable of making a rational defense, and he cannot be adjudged to punishment or executed while he is so disordered as to be incapable of stating any reasons that may exist why judgment should not be pronounced or executed. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

Plea at arraignment or before trial upon good cause showing. Section (e) sets forth in unequivocal terms that the insanity defense must be interposed at the time of arraignment, except when the court, for good cause shown, permits the plea to be interposed prior to trial. Ellis v. District Court, 189 Colo. 123, 538 P.2d 107 (1975).

Determination of good cause in discretion of trial court. Whether good cause is shown to permit a plea of insanity rests within discretion of trial court. Taylor v. District Court, 182 Colo. 406, 514 P.2d 309 (1973).

Not disturbed on appeal absent clear abuse. The question of good cause is one addressed to the sound discretion of the trial judge and, absent a clear abuse of discretion, the trial judge's ruling will not be disturbed on appeal. Martinez v. People, 179 Colo. 197, 499 P.2d 611 (1972); Taylor v. District Court, 182 Colo. 406, 514 P.2d 309 (1973); Garza v. People, 200 Colo. 62, 612 P.2d 85 (1980).

Showing required to prove good cause. Good cause in section (e) of this rule is shown when it is demonstrated that fairness and justice are best subserved by permitting the additional plea. Ellis v. District Court, 189 Colo. 123, 538 P.2d 107 (1975).

Good cause in section (e) of this rule is satisfied if the accused establishes that the plea was not entered at the time of arraignment due to mistake, ignorance, or inadvertence. Ellis v. District Court, 189 Colo. 123, 538 P.2d 107 (1975).

Good cause not established. See Garza v. People, 200 Colo. 62, 612 P.2d 85 (1980).

Abuse of discretion in not allowing insanity plea. Taylor v. District Court, 182 Colo. 406, 514 P.2d 309 (1973); Ellis v. District Court, 189 Colo. 123, 538 P.2d 107 (1975).

Right to have jury solve dispute as to sanity. Where there is a disputed question as to the defendant's sanity, he is entitled to have a jury pass on it. Abad v. People, 168 Colo. 202, 450 P.2d 327 (1969).

Choice of entering plea is defendant's. The tactical choice of whether to enter a plea of not guilty by reason of insanity by a defendant found "mentally competent" is left to the defendant and his counsel. People v. Lopez, 640 P.2d 275 (Colo. App. 1982).

And court not authorized to enter insanity plea unless defendant requests. Neither section (e) nor § 16-8-103, gives a trial court the authority to enter a plea of not guilty by reason of insanity when it has not been requested by the defendant or his counsel. Labor v. Gibson, 195 Colo. 416, 578 P.2d 1059 (1978); People v. Lopez, 640 P.2d 275 (Colo. App. 1982).

Insanity inquiry at any time during trial. If a court, at any of the stages of a trial, has a reasonable doubt whether a defendant is mentally disordered, it should suspend the criminal proceedings and hold an inquiry on the matter. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

Otherwise due process is violated. It is fundamental that a proceeding against an insane person in a criminal matter is a violation of his rights under the due process clause of the fourteenth amendment. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).

VI. Plea bargaining

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Law reviews. For article, "Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process," see 66 Den. U. L. Rev. 243 (1989).

Plea agreements, or plea bargainings, are approved. Dabbs v. People, 175 Colo. 273, 486 P.2d 1053 (1971); People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

But it may not be utilized to subvert truth or as means of forcing plea to an uncommitted crime. People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

Plea bargain may not be hidden and must be brought to the surface for scrutiny. DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972).

And defense lawyer must first obtain permission and the consent of his client before plea bargaining. Dabbs v. People, 175 Colo. 273, 486 P.2d 1053 (1971).

Coercion. Negotiation regarding charges against a loved one does not necessarily render a plea bargain the product of coercion, because such a plea can be voluntary. People v. Duran, 179 Colo. 129, 498 P.2d 937 (1972).

Judge not to participate in bargaining. Participation by trial judge in the plea bargaining process must be condemned. People v. Clark, 183 Colo. 201, 515 P.2d 1242 (1973).

When rejecting a plea agreement, a trial court must demonstrate on the record that it has actually exercised its discretion. A court's failure to make such showing is an abuse of discretion. People v. Copenhaver, 21 P.3d 413 (Colo. App. 2000).

Court has discretion to reject a plea agreement, separately from the merits, on the basis that the parties tendered it in an untimely fashion. The trial court must provide adequate notice to the parties of the plea bargain cutoff date and must permit an exception to the rule for good cause. If a court rejects a plea for failure to conform to plea deadline, court need not necessarily consider the terms of the plea agreement proffered by the parties. People v. Jasper, 17 P.3d 807 (Colo. 2001).

Court is not bound by a recommendation; in its discretion it may refuse to grant the district attorney's sentence concession. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Smith, 827 P.2d 577 (Colo. App. 1991).

A prosecutor can only make sentence recommendations, not promises, and sentencing determinations remain within the discretion of the trial court regardless of plea agreements between the prosecution and the defense. People v. Smith, 827 P.2d 577 (Colo. App. 1991).

Subsection (f)(2)(I) clearly contemplates that a defendant should be permitted to withdraw his guilty plea where the trial court chooses not to follow the prosecutor's sentence recommendation, regardless of whether the prosecution has promised that the court will follow the recommendation. People v. Wright, 194 Colo. 448. 573 P.2d 551 (1978); People v. Smith, 827 P.2d 577 (Colo. App. 1991).

But court must comply with Rule 32(e). The provision in subsection (b)(5) of this rule and § 16-7-207 (2)(e), that the court will not be bound by representations made to the defendant "unless [the] representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report...," does not free the court from complying with Crim. P. 32(e), which states, that if the court decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge must so advise the defendant and call upon the defendant to affirm or withdraw his plea of guilty or nolo contendere. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Application of C.R.E. 410, when read in light of this rule and § 16-7-303, requires the exclusion of evidence of statements made by defendant during plea bargaining process only in regard to plea discussions with the attorney for the government. People v. Rollins, 759 P.2d 816 (Colo. App. 1988).

Sentence recommendation is a sentence concession whether or not the court approves or concurs. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Offers of identical concessions for similarly situated defendants not required. Section 16-7-301 (3) and subsection (f)(3) of this rule do not require that similarly situated defendants must be offered identical concessions. People v. Lewis, 671 P.2d 985 (Colo. App. 1983).

District attorneys have the power to refuse to recommend sentence or probation. People v. Wright, 38 Colo. App. 271, 559 P.2d 249 (1976), aff'd, 194 Colo. 448, 573 P.2d 551 (1978).

Failure to object at time of acceptance of bargain bars later appeal of sentence. Where the trial court repeatedly reminded the defendant of what the sentence would be when it advised him at the time of the acceptance of his plea of guilty, pursuant to this rule, and where at no time did the defendant or his counsel protest the sentence nor raise an objection that the trial court was not properly exercising its discretion in imposing the sentence, the defendant could not, after benefiting from the plea bargain, claim on appeal that he has been unjustly sentenced. People v. Cunningham, 200 Colo. 303, 614 P.2d 886 (1980).

The proper standard for evaluating whether a prosecution remains bound by its obligations under a plea agreement is whether a defendant has materially and substantially breached his obligation to perform under the plea agreement. People v. McCormick, 859 P.2d 946 (Colo. 1993).

A plea agreement is more than merely a contract between two parties and must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due. People v. McCormick, 856 P.2d 846 (Colo. 1993).

Partial performance not enough. A defendant who materially and substantially breaches a plea agreement cannot enforce the agreement, regardless of whether the defendant has partially performed some of his obligations under it. People v. McCormick, 859 P.2d 846 (Colo. 1993).

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