Wieder v. People

722 P.2d 396, 1986 Colo. LEXIS 584

• Court: Supreme Court of Colorado
• Decided: June 23, 1986
• Docket: 84SC324
• Status: Published

Opinions

VOLLACK, Justice.

The defendant, Edward A. Wieder, appeals his conviction for second degree assault under section 18-3-2Q3(l)(f), 8 C.R.S. (1978 and 1985 Supp.),¹ and he appeals the use of his prior conviction as a partial basis for his habitual criminal conviction, claiming that he had been inadequately advised of the elements of the crime of second degree burglary, the object crime of the conspiracy of which he was charged. We affirm the judgment as to the second degree assault charge, and we affirm the trial court’s use of the prior conviction as a partial basis for the habitual criminal conviction.

I.

Wieder was found on the floor of a car that had struck a power pole. After assistance arrived, Wieder attempted to assault a paramedic. Police officers Macias and Washburn then pulled Wieder out of the automobile. Because Wieder was struggling, the officers pulled Wieder’s arms behind his back and placed handcuffs on his wrists. They placed him under arrest for driving under the influence. The officers led Wieder to a police car, and as they attempted to place him in the patrol car, he head-butted Officer Macias and kneed Officer Washburn in the groin. The officers then called a paddy wagon to take the defendant to the station house.

Wieder was convicted of second degree assault in violation of section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), which makes unlawful an assault against a peace officer while “lawfully confined or in custody.” The defendant was also convicted of two counts of being a habitual criminal and was sentenced to twenty-five years. In People v. Wieder, 693 P.2d 1006 (Colo. App.1984), the court of appeals affirmed Wieder’s conviction.

II.

Wieder first claims that the second degree assault statute, section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), is limited to conduct arising in a detention or correctional facility context and does not apply to a field arrest situation. We disagree.

Recently, in People v. Armstrong, 720 P.2d 165 (Colo.1986), we held that the plain language of section 18-3-203(l)(f) not only applied to conduct arising in a detention or correctional facility context, but also applied to conduct arising from a field arrest situation. Wieder does not dispute the plain language of section 18-3-203(l)(f). Rather, he claims the purposes stated in the governor’s proclamation call for an extraordinary session of the General Assembly limit the application of the amended words, “in custody,” only to detention facility situations. The applicable purpose for which the governor convened the General Assembly was:

... To consider the enactment of legislation amending sections 18-3-202 and 18-3-203, Colorado Revised Statutes 1973, concerning assault upon a person employed by or under contract with a detention facility.

Exec. Order, 1976 Colo. Sess. Laws 1 (First Extraordinary Session).

Article IV, section 9, of the Colorado Constitution provides:

The governor may, on extraordinary occasions convene the general assembly, by proclamation, stating therein the purpose for which it is to assemble; but at such special session no business shall be transacted other than that specially named in the proclamation.

Article V, section 7., of the Colorado Constitution provides in part:

The general assembly shall meet at other times when convened in special session by the governor pursuant to section 9 of article IV of this constitution ... to consider only those subjects specified in such request.

While the governor’s proclamation call may state the purpose for which the General Assembly is convened or may limit its consideration to a specific area of a general subject, the General Assembly is not limited to a narrow, technical interpretation of the subject matter comprised, in the governor’s call. However, a speculative, indirect, and tangential relationship between legislation and the call item on which it is based will be insufficient. People v. Larkin, 183 Colo. 363, 517 P.2d 389 (1973). To determine whether legislation enacted pursuant to the call of the governor passes constitutional muster, we have adopted a “rational nexus” test, wherein the challenged legislation must bear a rational nexus to an item specified in the governor’s call. Empire Savings Building and Loan Association v. Otero Savings and Loan Association, 640 P.2d 1151 (Colo.1982).

Here, we believe there is a rational nexus between tibe protection of police officers and fire fighters from assault while in the field and the governor’s call to protect persons from assault who are employed by or under contract with a detention facility. We hold that section 18-3-203(l)(f) applies not only to detention facilities, but also to field arrests.

III.

Wieder next claims that section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), violates the equal protection guarantees contained in article II, section 25, of the Colorado Constitution, because his conduct was substantially identical to that proscribed by section 18-8-103(l)(a), 8 C.R.S. (1978) (resisting arrest), and section 18-3-203(l)(c), 8 C.R.S. (1978). Wieder did not raise this equal protection argument in terms of section 18-3-203(l)(c) either during trial or in his motion for new trial or during his appeal to the court of appeals. We decline to address that portion of Wieder’s contention.

As to Wieder’s contention that section 18-3-203(l)(f) (second degree assault) and section 18-8-103(l)(a), 8 C.R.S. (1978) (resisting arrest), proscribe substantially identical conduct in violation of the equal protection guarantees, our recent decision in People v. Armstrong, 720 P.2d 165 (Colo. 1986), is controlling. In Armstrong, we held that when the second degree assault statute, section 18 — 3—203(l)(f), is properly construed, it is fully consistent with constitutional guarantees of equal protection. It is a question for the trier of fact, based upon the totality of the circumstances, to determine after the evidence has been presented at trial whether Wieder may be guilty of second degree assault. This issue turns on the point at which Wieder was arrested and the point at which he was “in custody.” We observed that the definition of “custody” necessarily differs from that of arrest for purposes of section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.), when the person subject to an arrest resists that arrest. Furthermore, we stated that in this situation, to effect an arrest, the peace officer must apply a level of physical control over the person resisting arrest so as to reasonably ensure that the person does not leave. Once the arrest has been effected, the person is in custody for purposes of section 18-3-203(l)(f).

Here, the record shows that an arrest had clearly been effected prior to the time that Wieder assaulted Officers Macias and Washburn. Under the test announced in Armstrong, the conduct was clearly different. Because the evidence is clear as to this critical point, we hold that Wieder was properly charged and convicted under section 18-3-203(l)(f), 8 C.R.S. (1978 and 1985 Supp.).

We affirm the verdict and judgment as to the second degree assault charge.

IV.

Wieder contends that his 1976 guilty plea to conspiracy to commit burglary was rendered involuntary by the trial court’s failure to explain the elements of burglary to him. The record at the providency hearing shows that the trial court accepted Wieder’s plea of guilty to the charge of conspiracy to commit burglary after it read the charge to him and questioned him to ascertain whether the plea was voluntary. The court explained the requirement that the People prove the elements of the conspiracy charge at trial:

Now, Mr. Weider [sic], if you were to go to trial on the charge of Conspiracy to Commit Second Degree Burglary, a Class 5 Felony, there are material elements of the charge that the District Attorney would have to prove beyond a reasonable doubt, and they are that on December 20th, 1975, that you, along with some other person or with Dave Johnson or some other person not known to the District Attorney — that you entered into an agreement, either by — through your actions or by word of mouth, to commit the crime of Second Degree Burglary, and that this was done with the specific intent and that you did agree to aid the other person in the planning and commission or attempted commission of the said crime and that some one of the conspirators did some kind of an act, an overt act, in pursuance of the conspiracy.

The defendant does not contest the adequacy of the above explanation which advised him of the nature of the conspiracy charge to which he was pleading guilty. Rather, he claims that the trial court’s failure to explain to him the elements of the underlying crime of second degree burglary rendered his plea involuntary. In Watkins v. People, 655 P.2d 834 (Colo.1983), we held that the charge of conspiracy was sufficiently complex to require some explanation of its elements to the defendant. We also observed in Watkins that the “conspiracy has legal significance only with respect to some other crime which is the object of the conspiracy.” 655 P.2d at 838. The Watkins trial court did not explain either the elements of the charge of conspiracy or the elements of the underlying object crime.

“Where some explanation is given by the court in accepting the plea, its adequacy is dependent upon the nature and complexity of the crime.” Wright v. People, 690 P.2d 1257 (Colo.1984); People v. Muniz, 667 P.2d 1377 (Colo.1983). Unlike Watkins, where neither the elements of conspiracy nor the elements of its underlying object crime were explained to the defendant, the court did explain to Wieder the elements of conspiracy. While the trial court did not explain the elements of the underlying object crime of second degree burglary, we do not believe under the factual circumstances of this case that the crime of second degree burglary was so complex or dependent upon legalisms not known to Wieder that a fuller explanation was necessary during the Crim.P. 11 advisement. At the time of Wieder’s guilty plea to conspiracy to commit burglary, Crim.P. 11 did not require that the trial court advise the defendant of each element of a crime charged. Rather it required the court to determine whether the defendant understood the nature of the charge and the elements of the offense to which he pled guilty. In 1974 Wieder had been convicted of first and second degree burglary. At the time he pled guilty to conspiracy to commit second degree burglary, he was no novice to the elements of second degree burglary. The defendant also waived a factual basis on his guilty plea to conspiracy to commit second degree burglary. A plea bargain was the basis for the Crim.P. 11 advisement to the crime, and it included a provision for dismissing a second degree burglary charge. Under these circumstances, we believe the trial court’s failure to explain the elements of second degree burglary was cured by evidence in the record showing that Wieder understood and had knowledge of the elements of second degree burglary. People v. Moore, 636 P.2d 1290 (Colo.1981). Wieder never contended that he did not in fact understand the elements of the crime of second degree burglary. In People v. Edwards, 186 Colo. 129, 526 P.2d 144 (1974), we held that where there was never any indication that the defendant did not understand the elements of the offense, the guilty plea should not be vacated.

We affirm the trial court’s application of Wieder’s earlier guilty plea to conspiracy to commit second degree burglary as a partial basis for Wieder’s habitual criminal conviction.

LOHR, J., concurs in part and dissents in part. QUINN, C.J., joins in the partial concurrence and dissent. DUBOFSKY, J., does not participate.

1 . The applicable portion of the second degree assault statute states:

While lawfully confined or in custody, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties or while lawfully confined or in custody as a result of being charged with or convicted of a crime, he violently applies physical force against a person engaged in the performance of his duties while employed by or under contract with a detention facility, as defined in section 18-8-203(3), and the person committing the offense knows or reasonably should know that the victim is a peace officer or fireman engaged in the performance of his duties or a person engaged in the performance of his duties while employed by or under contract with a detention facility. A sentence imposed pursuant to this paragraph (f) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, furlough, or any other similar authorized supervision or unsupervised absence from a detention facility, as defined in section 18-8-203(3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.

Section 18-3-203(1)©, 8 C.R.S. (1978 and 1985 Supp.) (emphasis added).