People v. Allen

310 P.3d 83, 2010 WL 4782249, 2010 Colo. App. LEXIS 1743
CourtColorado Court of Appeals
DecidedNovember 24, 2010
DocketNo. 08CA2098
StatusPublished
Cited by5 cases

This text of 310 P.3d 83 (People v. Allen) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Allen, 310 P.3d 83, 2010 WL 4782249, 2010 Colo. App. LEXIS 1743 (Colo. Ct. App. 2010).

Opinion

Opinion by

Judge HAWTHORNE.

Defendant, Brandon David Allen, appeals the district court's orders denying his motions to withdraw his guilty plea and continue his sentencing. He also appeals the court's sentencing order finding him to be a sexually violent predator (SVP). We affirm.

I. Factual Background

According to the arrest warrant affidavit and defendant's presentence investigation report, the victim was awakened by a man wearing a mask and gloves standing next to her bed. He pulled the sheet off of her and removed her underwear. He moved her to the bed's edge, placed a pillow over her face, squeezed her neck, slapped her, and said, "You're not going to tell are you? If you do, I will come and kill you!" Defendant sexually assaulted the victim for several hours. When she asked why he picked her house, defendant responded that he liked to break into houses "because of the rush." He told her that this was his "first time for a sexual assault" and repeatedly said, "I'm sorry." The victim reported that defendant, her neighbor, fit the intruder's description. Testing revealed that sperm cells recovered from the victim matched defendant's DNA profile.

Defendant was charged with two counts of sexual assault, one count of second degree burglary, second degree assault, menacing, and crime of violence.

Defendant pled guilty to first degree sexual assault-crime of violence, second degree burglary, and second degree assault. The plea agreement included a stipulated Department of Corrections (DOC) sentence with a minimum range of fifteen to twenty-five years and a maximum term of imprisonment for the rest of his natural life, plus mandatory parole.

Prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea, alleging that plea counsel had lied to him about the sentence he would receive. Plea counsel subsequently withdrew, citing irreconcilable differences. New counsel filed a Crim. P. 32(d) motion to withdraw defendant's guilty plea, alleging that he was not advised of the plea's consequences. Following a hearing, the court denied the motion. The court also denied defendant's subsequent motion requesting his sentencing be continued and a competency evaluation be conducted to investigate whether Lariam, a malaria drug he took while serving in the army, affected his mental state.

The court sentenced defendant to twenty years to life for first degree sexual assault to run consecutively to two concurrent five-year terms for second degree burglary and second degree assault. Contrary to the sexual assault risk assessment screening instrument [85]*85(RAST) and the evaluator's recommendation, the court found defendant to be an SVP. The court subsequently made further factual findings supporting its SVP determination.

In this appeal, defendant contends that the court erred in (1) denying his motion to withdraw his plea; (2) denying his motion to investigate a possible defense; and (3) finding him to be an SVP. We reject each of these arguments in turn and conclude as a matter of first impression that a district court may, with record support, find a defendant to be an SVP where the RASI and evaluator make a contrary recommendation.

II. Plea Withdrawal

Defendant contends the district court abused its discretion in denying his motion to withdraw his guilty plea. We are not persuaded. '

A defendant bears the burden of establishing a fair and just reason for withdrawing his or her guilty plea before sentencing. People v. Chippewa, 751 P.2d 607, 609 (Colo.1988). We review a trial court's denial of a Rule 32(d) motion to withdraw a guilty plea for abuse of discretion. Id. To show an abuse of discretion, a defendant must establish that the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Finley, 141 P.3d 911, 913 (Colo.App.2006).

A. Sentence Misapprehension

Defendant argues that his alleged sentence misapprehension constituted a fair and just reason for withdrawing his guilty plea. We disagree.

The sentencing agreement provided, "The Defendant agrees that the Court will sentence him to a stipulated term of imprisonment with a minimum range between 15 years and 25 years to be served at the Department of Corrections, and a maximum term of imprisonment of up to the rest of his natural life, plus a period of mandatory parole." It further stated that defendant agreed to be sentenced to a range of ten to twenty-five years on the sexual assault charge, up to the rest of defendant's natural life, plus a mandatory parole period.

As relevant here, the plea agreement further provided:

I understand the judge will not be bound by any promises or representations made to me concerning penalties to be imposed or the granting or denial of probation, no matter who made them, unless written down as part of this agreement. The Defendant, Defense Counsel, and the District Attorney all agree that there are no representations which have been made to induce the Defendant to plead guilty other than what is actually stated in this agreement.

Additionally, during the plea hearing, the court stated, "As to the sexual assault, it would be a range of ten years to 25 years to life; is that correct?" Plea counsel agreed, and defendant did not disagree. The court proceeded, "Mr. Allen, is that your understanding of what is happening here today?" He replied, "Yes, sir." Defendant also responded affirmatively to the court's questions about whether he had had sufficient time to discuss the agreement with his attorney and review the paperwork and had had all of his questions answered. Defendant further indicated that he did not have any questions about the possible sentence. The court addressed the agreement's stipulated sentence:

THE COURT:; We recognize that in this agreement, it is a range of ten years to 25 years, up to the rest of your natural life, plus the mandatory period of parole. Do you understand that, sir?
DEFENDANT: Yes, sir.

The court conducted a two-day hearing concerning defendant's alleged sentence misapprehension. Defendant testified that defense counsel told him that he had negotiated a plea of six to eight years and that his sentence "wasn't like anything to life" because he figured counsel had "the indeterminate taken care of." He further asserted that he did not read the plea agreement before signing it.

Plea counsel testified that he traveled to the jail before the plea hearing to explain the agreement's terms to defendant. He stated that he spoke with defendant at length about what it meant to be sentenced to fifteen to twenty-five years to life and that defendant

[86]*86repeatedly said that he thought he would probably serve twenty years. Plea counsel maintained that he never told defendant that he would receive only six to eight years or that he would serve a determinate sentence.

In denying defendant's motion to withdraw his guilty plea, the district court found that:

« Defendant was competent to proceed with the plea agreement;
Plea counsel's testimony was credible, and he did not make any sentencing related promises to defendant;

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Cite This Page — Counsel Stack

Bluebook (online)
310 P.3d 83, 2010 WL 4782249, 2010 Colo. App. LEXIS 1743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-allen-coloctapp-2010.