Opinion
No. 25685
Decided January 22, 1973.
Defendant was convicted of sales of narcotic drug. From denial of his postconviction motion without evidentiary hearing seeking to set aside sentences and to permit him to withdraw his plea of guilty, defendant brought original proceeding seeking to compel trial court to hold an evidentiary hearing. Rule to show cause issued.
Rule Discharged
1. DRUGS AND DRUGGISTS — Providency Hearing — Court — Advise — Sentences — Range — Evidentiary Hearing — Not Required. Where record in providency hearing showed that trial court advised petitioner that he could be sentenced to a term of 2 to 15 years on each of two counts charging sales of a narcotic drug and where record of sentencing hearing showed that sentences imposed were within that range and trial court did not treat either as a second offense, held, under such circumstances, an evidentiary hearing was not required; especially, where record on its face showed that providency hearing was a proper one in light of the sentences meted out.
2. CRIMINAL PROCEDURE — Evidentiary Hearing — Negative — Report — Hearing — — Statement in Mitigation. Where record revealed that presentence report was prepared and in hands of court at time of hearing at which petitioner was permitted to make statement in mitigation of offense, held, under such circumstances, petitioner was not entitled to an evidentiary hearing; and his contention — that sentencing court failed to take testimony in aggravation and mitigation before imposing sentence as required by statute — — was without merit.
Original Proceeding
Earl Albert Hyde, Pro Se.
Robert L. Russel, District Attorney, John T. Riggs, Deputy, for respondent.
Petitioner, Earl Albert Hyde, plead guilty to both counts of an information charging sales of a narcotic drug. Thereafter, he was sentenced to terms of 6 to 12 years in the penitentiary on each count, the sentences to run concurrently. After serving approximately one year of his sentence, petitioner filed a motion in the trial court under Crim. P. 35(b) seeking to set aside the sentences and to permit him to withdraw his plea of guilty.
He contends that (1) the sentencing court failed to properly inform him of the possible penalties for the crimes to which he entered a guilty plea as required by Crim. P. 11, and (2) the sentencing court failed to take testimony in aggravation and mitigation before imposing sentence as required by C.R.S. 1963, 39-7-9.
The trial court denied this motion without an evidentiary hearing. Hyde thereupon brought an original proceeding here seeking to compel the trial court to hold an evidentiary hearing. We issued a rule to show cause. Upon examination of the record of the providency hearing and the sentencing hearing and the Answer and the briefs on file, we now discharge the rule.
I.
Initially petitioner contends that he was misinformed as to possible consequences of his guilty pleas. C.R.S. 1963, 48-5-20, the section under which penalties for sale of narcotic drugs are delineated reads in pertinent part:
"* * * Whoever violates section 48-5-2. . . shall be guilty of a felony and, on conviction, be fined not more than ten thousand dollars and imprisoned in the state penitentiary not less than two nor more than fifteen years for a first offense; for a second offense such person shall, on conviction, be fined not more than ten thousand dollars and imprisoned in the state penitentiary not less than five nor more than twenty years. . . ."
The record in the providency hearing shows that the trial court advised Hyde that he could be sentenced to a term of 2 to 15 years on each count. The record of the sentencing hearing shows that the sentences imposed were within that range. The trial court specifically stated in his order denying relief to Hyde that since the pleas to both charges were entered on the same day and were for similar offenses, he did not treat either as a second offense. Rather than being harmed by the judge's action here, Hyde was actually benefitted. The record on its face shows the providency hearing was a proper one in light of the sentences meted out. Under such circumstances, an evidentiary hearing was not required. Crim. P. 35(b); Dabbs v. People, 175 Colo. 273, 486 P.2d 1053.
II.
Secondly, petitioner contends that he was entitled to an evidentiary hearing as to whether the sentencing court failed to comply with C.R.S. 1963, 39-7-8. The record reveals that a pre-sentence report was prepared and was in the hands of the court at the time of the hearing. Discussion ensued between counsel and the court concerning this report in the presence of Hyde. Hyde was then permitted to make a statement to the court in mitigation of the offense and he did so. The contention of the petitioner is clearly without merit on the face of the record itself and requires no evidentiary hearing. Dabbs v. People, supra.
The rule is discharged.