Swift v. People

488 P.2d 80, 174 Colo. 259

Opinions

Opinion by

J. Robert Miller, District Judge.

Footnotes

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The plaintiff in error, herein referred to as the defendant, was convicted of assault with intent to murder. The same jury in a separate proceeding determined that he had previously been convicted of a felony on three different occasions. The court sentenced him to life imprisonment as an habitual criminal under C.R.S. 1963, 39-13-1. The conviction and sentencing were previously affirmed in Swift v. People, 171 Colo. 178, 465 P.2d 391 (1970).

In the interim, the United States Supreme Court decided Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), in which it was held that if a defendant was not represented by counsel at a previous trial in which he was convicted of a felony, such conviction could not be used in sentencing him under an habitual criminal statute.

The defendant then filed a motion in the trial court under Crim. P. 35(b) to have his sentence vacated on the grounds that he had not been represented by counsel at his previous trials and convictions, as required by Burgett, supra. After two hearings, the trial court reaffirmed its original sentence of life imprisonment, finding that the defendant had been represented at each previous trial. We affirm.

In Burgett, the Supreme Court had no occasion to discuss procedures to be followed when a defendant questions the constitutional validity of a prior conviction offered in evidence by the prosecution. But in United States v. Martinez, 413 F.2d 61, the Court held that the rationale of Burgett requires the district court to conduct a hearing to ascertain the constitutional validity of such prior convictions. United States v. Thoresen, 428 F.2d 654.

Defendant contends that he was entitled to a jury determination of the issue of whether he was represented by counsel in the trials on his previous convictions.

Under the Habitual Criminal Act, it is the jury’s function to' determine whether the defendant has been previously convicted. Routa v. People, 117 Colo. 564, 192 P.2d 436 (1948). Whether such previous convictions were constitutionally procured involves a question of law for the court. In addition, under Crim. P. 35(b), the trial court determines all issues of fact and law.

One of the previous convictions upon which the habitual criminal conviction was predicated had taken place in New Mexico. It was in that proceeding that the defendant contends that he was without counsel. It appears from the record, however, that he was represented by counsel at all stages except sentencing. It may be that his constitutional rights were violated by reason of the absence of counsel at sentencing, as it appears from the record that he thought erroneously that the maximum sentence under the law was smaller than that which he had received. But any violation would relate only to that sentence and his remedy would therefore lie in New Mexico. Under C.R.S. 1963, 39-13-1 et seq. the punishment as an habitual criminal is based upon prior convictions, and the amount or validity of sentence under a valid conviction is immaterial.

Judgment affirmed.

Mr. Justice Hodges, Mr. Justice Groves and Mr. Justice Lee concur.

District Judge sitting under assignment by the Chief Justice under provisions of article VI, section 5(3) of the constitution of Colorado.