Summary
In People v. Cisneros, 665 P.2d 145 (Colo.App. 1983), we held that reading the information was insufficient because it contained no reference to the "mental state of knowing conduct required for conviction of second degree burglary under § 18-4-203, C.R.S. 1973 (1978 Repl. Vol. 8)."
Summary of this case from People v. WilsonOpinion
No. 81CA0367 No. 81CA0752
Decided February 17, 1983. Rehearing Denied March 24, 1983. Certiorari Denied Cisneros June 20, 1983 (83SC142). Certiorari Granted People June 20, 1983 (83SC156). Certiorari Dismissed as Improvidently Granted November 26, 1984 (83SC156).
Appeal from the District Court of El Paso County Honorable William E. Rhodes, Judge
J.D. MacFarlane, Attorney General, Richard Hennessey, Deputy Attorney General, Mary Mullarkey, Special Assistant Attorney General, Nathan B. Coats, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Michael Heher, Deputy State Public Defender, for defendant-appellant.
Division III.
Defendant, Johnny Estevan Cisneros, appeals his jury conviction of second degree burglary and of habitual criminal pursuant to the habitual criminal act, § 16-13-101 et. seq., C.R.S. 1973 (1978 Repl. Vol. 8) (1982 Cum. Supp.). We affirm in part and reverse in part.
The record discloses the following facts. During the night of April 20, 1980, the residents of a Colorado Springs home discovered defendant hiding under a bed in an unoccupied bedroom. Police officers were summoned, and an information alleging second degree burglary was filed against him. The information also requested sentencing pursuant to the habitual criminal act because of alleged felony convictions of defendant in 1973 and 1976. The 1976 conviction resulted from a plea of guilty to the offense of second degree burglary.
Prior to trial, defendant moved to dismiss the habitual criminal act counts, asserting that because the trial court conducting the providency hearing failed to comply with the then applicable provisions of Crim. P. 11, his 1976 guilty plea was not entered knowingly and voluntarily. The trial court denied this motion, stating that at the time of the 1976 hearing, "the defendant knew precisely what he was doing. . . ."
Trial to a jury commenced January 7, 1981. On January 9, 1981, the jury foreman informed the trial court that "the jury is at a complete impasse on attempting to reach a verdict." A mistrial was declared, and a new trial commenced March 2, 1981.
Defendant again unsuccessfully requested dismissal of the habitual criminal act counts. He was convicted of second degree burglary, and was found to be subject to the provisions of the habitual criminal act.
I. DECLARATION OF MISTRIAL
Defendant contends that the trial court erred in granting a mistrial in January 1981 and that his retrial constituted double jeopardy. We disagree.
When a criminal trial is terminated by a trial court because the jury cannot reach a verdict, reprosecution of an accused is not barred by the doctrine of double jeopardy. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981). Absent an abuse of discretion, the discharge of a jury and a declaration of mistrial for inability to reach a unanimous verdict does not constitute error. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). The trial court here questioned the jury foreman regarding the progress of the jury's deliberations, and, based on these inquiries and upon comments by both counsel, concluded that a declaration of mistrial was a manifest necessity. The record reveals that the trial court did not abuse its discretion in reaching this conclusion; hence, defendant's retrial did not subject him to double jeopardy. Barriner v. District Court, supra.
II. INSTRUCTIONS
Defendant also contends that the jury instructions respecting specific intent and describing the elements of theft were improper. Defendant did not object to these instructions at trial, did not offer alternative instructions at trial, and did not include these asserted errors in his motion for new trial and judgment of acquittal. Hence, absent plain error, any defect in the instructions must be deemed harmless. Crim. P. 52; People v. Mattas, 645 P.2d 254 (Colo. 1982).
The trial court's instruction defining specific intent was substantially similar to an instruction on this issue approved by our Supreme Court in People v. Mack, 638 P.2d 257 (Colo. 1981). The trial court's theft instruction contained the words of the relevant statute and thus adequately apprised the jury of the requisite mens rea. People v. Gresham, 647 P.2d 243 (Colo.App. 1981). Hence, these instructions did not constitute plain error.
III. HABITUAL CRIMINAL SENTENCE
Defendant finally contends that he was not adequately advised pursuant to Crim. P. 11 when he entered a plea of guilty to the offense of second degree burglary in 1976; that this plea was not knowingly entered; and that, therefore, that conviction may not be used as a basis for his sentence enhancement under the habitual criminal act. We agree.
A prior conviction obtained in violation of a constitutional right cannot be used to enhance punishment under the habitual criminal act. Watkins v. People, 655 P.2d 834 (Colo. 1982). A plea of guilty must be entered voluntarily and with full understanding of the essential elements of the offense to withstand constitutional scrutiny. Crim. P. 11; Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Watkins v. People, supra; People v. Roybal, 617 P.2d 800 (Colo. 1980).
Crim. P. 11 sets forth procedures designed to assure that constitutional requirements are satisfied before a plea of guilty is accepted. People v. Roybal, supra. Crim. P. 11(b) states in pertinent part that "the court shall not accept a plea of guilty . . . without . . . determining
. . . that the defendant understands the nature of the charge and the elements of the offense to which he is pleading. . . ." (emphasis added) Thus, in determining whether a tendered plea of guilty is made voluntarily and with the requisite knowledge of the normative standards allegedly violated, the trial court must explain the critical elements of the offense charged, as defined by the General Assembly, to the defendant "in terms which are understandable to the defendant. . . ." People v. Cumby, 178 Colo. 31, 495 P.2d 223 (1972). The record of the providency hearing must also reveal that the defendant in fact understood the elements of the offense. People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972).
The record of the 1976 providency hearing reveals the following pertinent colloquy between the trial court and defendant respecting the elements of the offense of second degree burglary:
THE COURT: It says here that on the 1st day of June of this year, . . . you unlawfully and feloniously entered a building, . . . and that you intended to commit the crime of theft from that building.
Do you understand you're saying, "Yes, I did that."?
THE DEFENDANT: Yes.
THE COURT: Did you in fact do that?
THE DEFENDANT: Yes."
. . . .
THE COURT: . . . Did you have permission to enter in the back window?
THE DEFENDANT: No.
THE COURT: And you knew that you were committing a crime when you did that, is that right?
THE DEFENDANT: Yes.
THE COURT: Did you intend to steal those purses? Did you intend to steal something when you got in?
THE DEFENDANT: Yes.
THE COURT: You intended to steal whatever you'd find, I assume; is that correct?
THE DEFENDANT: I was just there going to get some money.
While these discussions adequately established a factual basis for the alleged offense, at no time did the trial court either describe the elements of second degree burglary or ascertain whether defendant understood those elements. We recognize that in some circumstances the reading of the charge alone may satisfy the requirements of Crim. P. 11. People v. Moore, 636 P.2d 1290 (Colo.App. 1981). However, the mere reading of a charge contained in an information is not sufficient if the language of the information fails to refer to essential elements of the alleged offense. See Watkins v. People, supra.
Here, the information did not refer to the mental state of knowing conduct required for conviction of second degree burglary under § 18-4-203, C.R.S. 1973 (1978 Repl. Vol. 8). Nor did the trial court describe the statutory requirement that the entry be obtained without authorization. Defendant's answers to the trial court's inquiries do not establish that he knew and understood the essential elements of that offense. Hence, it cannot be concluded that defendant's plea of guilty in 1976 was entered knowingly and voluntarily, Watkins v. People, supra, and the trial court erred in considering such conviction for purposes of sentencing under the provisions of the habitual criminal act.
The judgment of conviction of second degree burglary is affirmed. The judgment declaring defendant an habitual criminal is reversed, and the cause is remanded to the trial court with directions to vacate the sentence imposed and to impose a new sentence consonant with this decision.
JUDGE TURSI specially concurs.
JUDGE BERMAN dissents.