Certiorari to the Court of Appeals. Court of Appeals Case No. 09CA1949.
Section 16-11-206, C.R.S. (2013), requires a court to advise a probationer, at or before a hearing on a revocation complaint, of the possible penalties he may face. Here, the supreme court considers whether to satisfy due process, Crim. P. 11(b) independently requires such an advisement. The record demonstrates that the defendant waived his statutory right under section 16-11-206 to a penalty advisement. The court concludes that even if the defendant had not waived his statutory right to an advisement, the requirement of section 16-11-206 was met here because the defendant was previously advised on several occasions of the potential penalties he faced. The court further holds that section 16-11-206 does not incorporate Crim. P. 11(b) or otherwise embody a constitutional right to be advised of the possible penalties when a defendant admits to a violation of a deferred judgment agreement. Thus, where, as here, a defendant waives his statutory right under section 16-11-206 to a penalty advisement at a revocation hearing, neither Crim. P. 11(b) nor constitutional due process independently requires such an advisement. Accordingly, the supreme court affirms the court of appeals' decision upholding the trial court's denial of postconviction relief.
Attorneys for Petitioner: Douglas Wilson, Public Defender, Rebecca R. Freyre, Denver, CO.
Attorneys for Respondent: John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, CO.
[¶1] Section 16-11-206, C.R.S. (2013), requires a court to advise a probationer, at or before the commencement of a hearing on a revocation complaint, of the possible penalties
he may face. In this case, we consider whether, to satisfy due process, Crim. P. 11(b)(4) independently requires a court to advise a probationer of the possible penalties he faces when he admits to a violation of a deferred judgment agreement. Here, the record reflects that the defendant waived his statutory right to an advisement at his revocation hearing. The record also reflects that, prior to his revocation hearing, the defendant was advised on several occasions of the potential penalties he faced if his deferred judgment was revoked. Thus, we conclude that even if the defendant had not waived his statutory right to an advisement under section 16-11-206, the requirement of that statute was met in this case. We further hold that section 16-11-206 does not incorporate Crim. P. 11(b) or otherwise embody a constitutional due process right to a penalty advisement that cannot be waived by counsel. Thus, where, as here, a defendant waives his statutory right under section 16-11-206 to a penalty advisement at a revocation hearing, neither Crim P. 11(b) nor constitutional due process independently require such an advisement. Accordingly, we affirm the court of appeals' decision upholding the trial court's denial of postconviction relief.
I. Facts and Procedural History
[¶2] In 2003, Petitioner, Dallas Jeffrey Finney (" Finney" ), was charged with two counts of sexual assault-helpless victim and two counts of sexual assault-victim incapable. Beginning in July 2004, Finney entered into a series of plea agreements before the final agreement was accepted by the trial court in February 2005. During this time, five different trial court judges reviewed the agreements, and at several junctures, Finney was advised of the potential penalties he faced.
[¶3] In July 2004, Finney entered into his first plea agreement, agreeing to plead guilty to one count of class four felony sexual assault. Under the agreement, the judgment and sentence would be deferred for four years, and Finney would be placed on supervised probation. Finney signed a written plea advisement which stated that the potential penalties for the offense were " 2 years to life imprisonment . . . with mandatory 3 years parole." In addition to the written advisement, the trial court verbally informed Finney of the potential life imprisonment penalty and questioned Finney to ensure that he had read and understood the advisement. After reviewing the probation department's presentence report, the trial court ultimately rejected the plea agreement.
[¶4] In November 2004, Finney entered into a second plea agreement, which required him to plead guilty to one count of class four felony sexual assault and one count of class three misdemeanor harassment. The second plea agreement provided that the judgment and sentence would be deferred on the felony, but that the misdemeanor would remain on Finney's record. The trial court again advised Finney of the possible penalties, which it described as a maximum of " life imprisonment in the State Department of Corrections and a fine from two to $500,000, plus three years of mandatory parole." When asked by the trial court if he wished to plead guilty " [k]nowing the possible penalties and places of confinement," Finney responded, " yes." Later in the hearing, however, when the court asked Finney if he wished to make a statement in mitigation of his offense, Finney insisted that he was " not a sexual offender" and that he " didn't do this." In light of these statements, the trial court vacated Finney's plea, stating that it would not accept a guilty plea from a defendant who maintained his innocence.
[¶5] In February 2005, Finney entered into a third plea agreement which provided that Finney would plead guilty to one count of class four felony sexual assault and one count
of class one misdemeanor third degree assault. Under this agreement, the judgment and sentence would be deferred on the felony, but, among other conditions, Finney would be subject to intensive supervised probation, would be required to serve up to ninety days in jail, and would have to submit to sex offender testing and treatment. Once again, the trial court advised Finney that the penalty for the class four felony was two years to life imprisonment, plus three years of mandatory parole that " could be extended beyond that."  And, once again, Finney acknowledged to the court that he understood that " those penalties would not apply unless [he] violated" the terms of the deferred judgment agreement. In response to questions from the court, Finney stated that he had read the written agreement; his counsel had explained it to him; he understood the alternatives he had to entering into the agreement; he had received no additional promises or commitments that were not in the agreement; he was satisfied with his plea counsel's representation; he had not been coerced to accept the agreement; and the decision to accept the plea agreement was his alone. The trial court then accepted Finney's guilty plea.
[¶6] In June 2008, the prosecution filed a complaint to revoke Finney's deferred judgment agreement, alleging that Finney violated the conditions of the agreement because he was terminated from the sex offender treatment program. In two separate appearances in August 2008, Finney, ...