Opinion
No. 26099
Decided January 6, 1975.
Defendant, with advice of counsel and after consultation with his family, entered a plea of guilty to voluntary manslaughter and thereafter, before imposition of sentence, sought to withdraw his guilty plea, contending coercion and that he had a meritorious defense. Trial judge denied defendant's motion to withdraw his plea and he appealed.
Affirmed
1. CRIMINAL PROCEDURE — Plea of Guilty — Voluntary Manslaughter — Coercion — Counsel — Family — Assertion — Lack of Merit. Where record reflects that defendant's first trial ended in hung jury with vote of 11 to 1 for conviction of second-degree murder, that defense counsel recommended that defendant accept prosecution's offer to accept plea of guilty to voluntary manslaughter after stating that conviction of crime of murder was a virtual certainty in that two new witnesses had been located by prosecution, and where, after consulting with his mother and brother, defendant advised court that it was his own decision that a plea of guilty be entered to crime of voluntary manslaughter, held, under these circumstances, defendant cannot validly assert that he was coerced into agreeing to enter a plea of guilty to voluntary manslaughter.
2. ATTORNEY AND CLIENT — Duty of Defense Counsel — Candor — Estimate — Probable Outcome. In a criminal case, it is defense counsel's duty to inform his client with complete candor and to offer his best estimate of the probable outcome of the case.
3. CRIMINAL PROCEDURE — Plea of Guilty — Manslaughter — Coercion — Negative. Where defendant knew the risks of trial, surveyed the evidence, and made a free and voluntary choice, and where the providency hearing which the trial judge conducted was full and complete, the district attorney abided by his plea agreement, and defendant did not show that he was in fact coerced into pleading guilty to voluntary manslaughter or that his plea was not his free and voluntary act, held, under these circumstances, defendant's assertion — that defense counsel, with the assistance of his family, coerced him into agreeing to enter a plea of guilty to voluntary manslaughter — is without merit; record does not establish that any manifest injustice occurred.
4. Guilty Plea — Withdrawn — Absolute Right — Negative. Defendant does not have an absolute right to withdraw his guilty plea at any time before the court imposes sentence.
5. Plea of Guilty — Withdrawal — Rules. Under Crim P. 32 (3), a motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended.
6. Plea of Guilty — Withdrawal — Discretion — Trial Judge. A defendant's motion to withdraw a plea of guilty is addressed to the sound discretion of the trial judge and his decision will not be overturned in the absence of a clear abuse of discretion.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Patricia W. Robb, Assistant, for plaintiff-appellee.
Daniel E. Muse, for defendant-appellant.
Sidney A. Riley, with the advice of counsel and after consultation with his family, entered a plea of guilty to voluntary manslaughter. C.R.S. 1963, 40-2-5. Thereafter, before sentence was imposed, he sought to withdraw his guilty plea, contending that he was coerced into entering the plea and that he had a meritorious defense. The trial judge denied Riley's motion to withdraw his plea. Riley appealed. We affirm.
Riley was initially charged with murder. C.R.S. 1963, 40-2-3. He entered a plea of not guilty and went to trial. The first trial ended with a hung jury. Plea negotiations were entered into with the defendant's consent prior to the second trial. Just prior to the date set for his second trial, an agreement was reached, and the district attorney filed an amended information which included a second count of voluntary manslaughter. A full providency hearing was held at which Riley plead guilty to voluntary manslaughter. At the probation hearing prior to the imposition of sentence, Riley sought to withdraw his plea of guilty.
I.
Coercion
[1] Riley asserts that defense counsel, with the assistance of Riley's family, coerced him into agreeing to enter a plea of guilty to voluntary manslaughter. He admits that his defense counsel tried the case which ended with a hung jury and a vote of 11 to 1 for conviction of second-degree murder. He also acknowledges that he was advised by defense counsel that two new witnesses were located by the prosecution which, in the opinion of defense counsel, made a conviction of the crime of murder a virtual certainty. Accordingly, defense counsel recommended that the defendant accept the prosecution's offer to accept a plea of guilty to voluntary manslaughter. before the agreement was finalized, the defendant consulted with his mother and his brother, and at the providence hearing, Riley advised the court that it was his own decision that a plea of guilty be entered to the crime of voluntary manslaughter.
[2] Riley, however, contends that his defense counsel went beyond the limits of fair persuasion in his efforts to cause Riley to plead guilty to voluntary manslaughter. We think not. It was defense Counsel's duty to inform his client with complete candor and to offer his best estimate of the probable outcome of the case. ABA Standards Relating to the Defense Function § 5.1. The record reflects that defense counsel did not go beyond the limits of fair persuasion, did not overstate the risks, or exercise undue influence on the defendant. ABA Standards Relating to The Defense Function § 5.1(b).
[3] The facts in this case parallel in many respects those in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,, 27 L.Ed.2d 162 (1970), where a guilty plea was allowed to stand over the defendant's protestation of innocence and allegation of coercion. Here, the defendant knew the risks of trial, surveyed the evidence, and made a free and voluntary choice. The providency hearing which the trial judge conducted was full and complete. The district attorney abided by his plea agreement, and the defendant did not show that he was in fact coerced into pleading guilty to voluntary manslaughter or that his plea was not his free and voluntary act. In short, the record does not establish that any manifest injustice occurred. Note, 40 N.Y.U. L. Rev. 759 (1965); Dukes v. Warden of Connecticut State Prison, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972); ABA Standards Relating to Pleas of Guilty §§ 1.4, 1.5, 1.6, 3.2.
II.
Change of Plea
[4,5] The record does not show that the trial judge abused his discretion by denying Riley's motion to withdraw his plea. Riley contends that he has an absolute right to withdraw his guilty plea at any time before the court imposes sentence, which is not limited by the grounds which he assets as a basis for withdrawing his plea. If we were to uphold Riley's contention, we would be forced to overrule sound case law. Our present procedure is sound. Crim. P. 32(e) provides:
"A motion to withdraw a plea of guilty . . . may be made only before sentence is imposed or imposition of sentence is suspended."
[6] In Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967), we construed Crim. P. 32(e) and held that a defendant's motion to withdraw a plea of guilty continues to be addressed to the sound discretion of the trial judge and that the trial judge's decision will not be overturned in the absence of a clear abuse of discretion. See Maes v. People, 155 Colo. 570, 396 P.2d 457 (1964).
Accordingly, the judgment of the trial court is affirmed.
MR. JUSTICE GROVES does not participate.