Summary
deeming harmless trial court's failure to advise as to the correct and complete penalty because sentence finally imposed was in conformity with original, albeit defective, advisement
Summary of this case from Craig v. PeopleOpinion
No. 24938
Decided July 17, 1972. Rehearing denied August 8, 1972.
Crim. P. 35 proceeding wherein defendant seeks a determination that he is entitled to withdraw his plea of nolo contendere, and enter a plea of not guilty. District court denied defendant's motion alleging error in accepting his plea of nolo contendere and he appealed.
Affirmed
1. CRIMINAL PROCEDURE — Plea — Nolo Contendere — Sentence — Failure to Advise — Reformatory — Correction — Harmless Error. Where court, at time defendant tendered his plea of nolo contendere, advised him that penalty for accessory after fact charge was two year jail maximum but did not advise him that the could be sentenced to state reformatory, and where defendant filed motion claiming court erred in failing to advise him as to possibility of being sentenced to reformatory as well as to county jail, whereupon court which sentenced him to reformatory vacated sentence and re-sentenced him to eleven months in county jail, held, under the circumstances, the error was harmless; after the court corrected it, the sentence conformed to the advisement given.
Appeal from the District Court of Jefferson County, Honorable George G. Priest, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Eugene C. Cavaliere, Assistant, for plaintiff-appellee.
Harry K. Nier, Jr., for defendant-appellant.
This is a Crim. P. 35 proceeding.
The defendant was charged originally with attempted second-degree burglary, a felony. Later, a misdemeanor charge of accessory after the fact to attempted second-degree burglary was filed against him. He offered a plea of nolo contendere to the misdemeanor charge. This was accepted, and the charge of attempted burglary was dismissed.
[1] At the time the defendant tendered his plea, the court advised him that the penalty for the accessory after the fact charge was a maximum of two years in jail. The court did not advise him that, in lieu of a jail sentence to the Colorado State Reformatory. C.R.S. 1963, 39-10-1(2). Subsequently, after the court had considered a pre-sentenced report, it sentenced him to an indeterminate term in the Colorado State Reformatory. Defendant thereafter filed the motion here under consideration, claiming only that it was error to fail to advise him of the possibility of being sentenced to the reformatory, as well as to the county jail. The court immediately vacated the sentence and re-sentenced him to eleven months in the county jail. He is here seeking a determination that he is entitled to withdraw his plea of nolo contendere and enter a plea of not guilty. We affirm.
The following cases have been called to our attention: People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972); People v. Mason, 176 Colo. 544, 491 P.2d 1383 (1971); People v. Riney, 176 Colo. 221, 489 P.2d 1304 (1971); People v. Randolph, 175 Colo. 454, 488 P.2d 203 (1971); Westendorf v. People, 171 Colo. 123, 464 P.2d 866 (1970); and Martinez v. People, 152 Colo. 521, 382 P.2d 990 (1963). In each of those cases there was a failure to explain the nature and elements of the offense charged prior to acceptance of the plea, and in some there were other failures of compliance with Crim P. 11(c). None of these decisions involved solely a failure to advise as to the correct and complete penalty.
We hold that the error was harmless. After the court corrected it, the sentence conformed to the advisement given. Defendant's total sentence, including about a month that he spent in the reformatory, was approximately one-half the possible maximum sentence.
Judgment affirmed.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE KELLEY and MR. JUSTICE LEE concur.