Champion v. People

236 P.2d 127, 124 Colo. 253

• Court: Supreme Court of Colorado
• Decided: September 17, 1951
• Docket: 16546
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the court.

Plaintiff in error, to whom we hereinafter refer as defendant, was named defendant in an information filed July 7, 1949, in the district court of Gilpin county, Colorado. The information contained two counts. Omitting formal parts thereof, it was charged in the first count that on July 4, 1949, defendant “did unlawfully, wilfully, and feloniously make an assault in. and upon one Edgar Heselbarth, Jr., with intent to disfigure and disable a member of the body of Edgar Heselbarth, Jr., to-wit: an eye of Edgar Heselbarth, Jr. * * * In the second count it was charged, in substance, that at the same time and place defendant committed an assault and battery upon the said Edgar Heselbarth, Jr.

July 9, 1949, defendant was arraigned. The record shows that each count of the information was read to him in open court and that he entered a plea of guilty to each of them. The court, having ascertained that the age of defendant was twenty-four years, informed him to the effect that under the first count of the information he could be sentenced to a term of not less than one, or more than fourteen, years in the penitentiary, and under the second count he could be sentenced to a term not exceeding one year in the county jail. The court then stated, “Now, having advised you of the consequences of your pleas of guilty, do you still desire to plead guilty to both counts”? The defendant answered in the affirmative and the pleas of guilty were permitted to stand. The court thereupon heard the evidence which was offered by the Deputy District Attorney, to which reference will hereinafter be made. Defendant made application for probation, and a special probation officer was appointed and made his report. Probation was granted to the defendant on July 14, 1949.

In April, 1950, counsel for defendant filed a “Motion to Vacate Judgment and Conviction and for Leave to Withdraw Pleas of Guilty.” The grounds of said motion, in substance, were that the defendant had not been served with a copy of the information at or prior to the time of arraignment; that the nature of the charges filed against him was not explained to him; that he entered pleas of guilty to both counts of said information without comprehending or understanding the significance of the entry by him of said guilty pleas; that he was not represented by counsel and was not offered an opportunity to be represented by counsel of his own choice or counsel appointed by the court; that he was not adequately cautioned and advised by the court concerning his constitutional and statutory rights as a defendant in a criminal case; that prior to the arraignment of defendant the Deputy District Attorney, who filed said charge, had advised him not to employ counsel and that he would be granted probation if he entered pleas of guilty to both counts of said information; that defendant did not realize that he was accused of a felony charge, did not comprehend the seriousness of the charges, and was not advised thereof by the Deputy District Attorney; and that he was completely unfamiliar with the technical legal implications of a plea of guilty to the charges preferred against him.

It further was alleged that the Deputy District Attorney, prior to said arraignment, advised the mother of said defendant not to employ an attorney for him, and that said Deputy District Attorney stated to her that he would take care of the matter and that defendant would be granted probation and would be released from custody in the immediate future; that defendant did not understand the legal effect of being placed on probation and was under the impression that the approval of his application for probation would wipe out the alleged offenses and was tantamount to a dismissal of said charges; and that it was not until after the probation hearings that he “began to realize the significance of the situation”; that the defendant was in fact innocent of the charges and had a meritorious defense to each count of said information and desired to avail himself of his “constitutional and statutory rights to a trial by jury.” The said motion was supported by the affidavits of defendant and his mother. A hearing was held on May 3, 1950, upon this motion and the testimony of defendant and his mother, together with that of the Deputy District Attorney who handled the case for the people, was taken. Defendant’s testimony and that of his mother fully supported the facts alleged in the motion. The court denied the motion and defendant brings the case here for review.

The trial court had not lost jurisdiction to entertain the motion, for the reason .that no sentence had been imposed and jurisdiction of the court continued throughout the period of probation. The testimony, heard by the trial court when the pleas of guilty were accepted, was not given by the person alleged to have been the victim of the alleged assault, but was supplied by a witness who admittedly was present at only a portion of the altercation between defendant and his alleged victim. The witness himself became involved in the fight and admitted knocking defendant down. The testimony of this third party tends to show that there was a fight between defendant and Edgar Heselbarth, Jr., growing out of a minor automobile accident at 11:30 P.M. on July 4, in Central City, Colorado, in a dark alley off Eureka street. Heselbarth suffered a serious injury to one of his eyes as a result of a blow struck by defendant. The Attorney General, in his answer brief, after quoting in full all the evidence that was offered following the pleas of guilty, states: “In the instant case, there seems to be a complete absence of evidence in the record to sustain the first count.” The conclusion of the Attorney General is that the evidence which was received by the trial court negatived the existence of specific intent} proof of which was necessary and essential to establish the guilt of defendant upon the charge contained in the first count of the information.

At the time the pleas of guilty were accepted, and before any application for probation was filed, the Deputy District Attorney called the sheriff of Gilpin county as a witness. He knew nothing whatever about the transaction upon which the information was based and testified that he had known the defendant “ever since he was a little kid.” He said defendant had no criminal record and that “he has never had any trouble in this county and he has a very good navy record.” He also stated that defendant was three years in the navy and concluded his testimony with the statement, “He has always been a very nice boy around here and has never had any trouble before.” We direct attention to this testimony for the reason that it throws light upon the question as to whether defendant entered guilty pleas under the belief that the Deputy District Attorney had promised probation and was bringing forward this testimony in fulfillment thereof. It appears from the record that defendant is a married man and is the father of two children whose ages were six months and nineteen months respectively at the time of the hearing on the motion to vacate the pleas of guilty. The Deputy District Attorney testified at the hearing on the motion that he had talked with defendant while he was in jail, and that the conversation related to the nature of his plea and probation. He said he told defendant that, “It was the practice of the Courts in most cases, where there was no record, to grant probation, but as to his, I didn’t know until the Court got to it. Under the circumstances, he had a good chance, that was the nature of that conversation.” On cross-examination he stated: “The only thing I tried to do was help him as any human being would. I did my duty as I saw it.” His closing statement in answer to. the question as to whether he advised defendant “as District Attorney or as a friend” was answered, “I advised him only as far as I saw fit to help.” However well intentioned the interest of the prosecutor might have been, it is clear that the defendant was influenced to enter pleas of guilty as a means of avoiding expense and further trouble, in reliance upon the impression unquestionably created in his mind that the prosecutor would see to it that he got probation.

Questions to be Determined.

First: Was the order of the trial court denying the motion of defendant to withdraw his pleas of guilty, a final order which is subject to review by this court?

This question is answered in the affirmative. The denial of defendant’s motion operated with finality to fix his status as a person duly convicted of a felony. The fact that he had been admitted to probation and that the trial court retained jurisdiction of the cause in connection therewith, and the further fact that .no sentence has been imposed upon the convictions under the pleas of guilty, do not deprive defendant of the right to seek review of the court’s action in denying his motion to vacate the pleas of guilty.

Second: Did the trial court abuse its discretion in denying the motion to vacate judgment and conviction and for leave to withdraw pleas of guilty?

This question is answered in the affirmative. Generally, it is well settled that a motion by a defendant to withdraw a plea of guilty is addressed to the sound discretion of the trial court. Abshier v. People, 87 Colo. 507, 289 Pac. 1081. In 14 American Jurisprudence, page 961, section 287, we find the following statement: “As in other cases of discretionary power, no general rule can be laid down as to when a defendant will be permitted to withdraw his plea. The decision in each case must depend to a great extent on the particular attendant circumstances. Generally, however, it may be said that the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty. Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury.”

The following appears in 22 C.J.S., page 642, section 421: “Accused should be permitted to withdraw a plea of guilty which is contrary to the truth, * * *. Also, the court should permit the withdrawal of the plea where it appears that there is doubt of the guilt of accused; * * *.” In the case of Gearhart v. People, 113 Colo. 9, 154 P. (2d) 47, we quoted with approval from Abshier v. People, supra, as follows: “The discretion thus reposed in the court ‘should be exercised liberally in favor of life and liberty,’ but ‘where it is plain that substantial justice will not be promoted, or the substantial rights of defendant prejudiced, the application for leave to withdraw the plea should be denied.’ ”

The Attorney General concedes that the evidence received following the pleas of guilty was insufficient to establish guilt on the charge of assault with i~tent to commit mayhem, and suggests that the conviction upon that count be vacated, and that said count be dismissed. We agree that the evidence adduced was insufficient to establish guilt of the charge, but dismissal thereof does not follow. The only purpose of taking evidence following entry of a plea of guilty is to show the “aggravation and mitigation of the offense” as required by the provisions of section 482, chapter 48, ’35 C.S.A. It is not necessary that all essentials of an offense shall be established by evidence following a plea of guilty, because the purpose of the inquiry is to reveal “aggravation” or “mitigation” of the offense for the guidance of the court in the imposition of sentence. Following the entry of a plea of guilty, the evidence proper for the consideration of the court is not limited to that which would be admissible upon a trial following a plea of not guilty. Smith v. People, 32 Colo. 251, 75 Pac. 914. So in this case, other evidence not offered concerning aggravation or mitigation, may be available upon a trial of the question of guilt which was deemed unnecessary by reason of the pleas of guilty.

However, the state of the evidence as presented is a matter for consideration for the reason that it is wholly consistent with the position of the defendant as disclosed by the motion to vacate the guilty pleas, and is a circumstance of considerable weight in determining whether the trial court abused its discretion in refusing to set aside the pleas of guilty. Even upon the count charging the offense of assault and battery the evidence before the court might have failed to establish guilt in the minds of reasonable men.

Under all these circumstances the accused should be allowed to withdraw the pleas of guilty. In La Fave v. State, 233 Wis. 432, 289 N.W. 670, there was an application to withdraw a guilty plea to a charge of arson under circumstances similar to those in the case at bar. The court said: “Upon the whole situation we consider that the court should have granted the motion under review and that, even though the granting of motions to withdraw a plea of guilty is discretionary, it was an abuse of discretion not to vacate the judgment imposed in the instant case and permit the withdrawal of the plea and representation by counsel.”

We do not place emphasis upon any single circumstance present' in this case as being sufficient in and of itself to warrant our ruling that the trial court abused its discretion in the premises. The combination of all the attendant facts and circumstances, considered in the light of the principles of law above stated, lead unmistakably to the conclusion that the pleas of guilty should be permitted. to be withdrawn and pleas of not guilty entered as to each count of the information. White v. People, 79 Colo. 261, 245 Pac. 349.

The judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Mr. Chief Justice Jackson concurs in the result. Mr. Justice Holland specially concurs. Mr. Justice Clark dissents. Mr. Justice Alter did not participate.