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The People
of the State of Colorado, Plaintiff-Appellee, v.
Jeremiah
J. Moriarity, Defendant-Appellant.
No. 98CA1463
COURT
OF APPEALS OF COLORADO, DIVISION ONE
March
16, 2000, Decided
PRIOR HISTORY: Appeal
from the District Court of the City and County of Denver.
Honorable Larry J. Naves,
Judge. No. 96CR648.
DISPOSITION: ORDER AFFIRMED
AND CAUSE REMANDED WITH DIRECTIONS
COUNSEL: Ken Salazar,
Attorney General, Steven C. Posner,
Special Assistant
Attorney General, Denver,
Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado
State Public Defender, Kathleen Lord, Deputy State
Public Defender, Denver,
Colorado, for Defendant-Appellant.
JUDGES: Opinion by JUDGE
NIETO. Metzger and Ruland, JJ., concur.
OPINIONBY: NIETO
OPINION:
Opinion by JUDGE NIETO
Defendant, Jeremiah
J. Moriarity, appeals the trial court's order denying
his
Crim. P. 35(c) motion
for post-conviction relief. We affirm, but remand for
correction of the mittimus.
In February 1996,
defendant pled guilty to one count of first degree assault
-- heat of passion, a
class-five felony, and was sentenced to the Department of
Corrections (DOC) for
three years, the maximum in the presumptive range.
Although it is not reflected
on the mittimus, defendant must also serve an
additional two-year period
of mandatory parole. Section 18-1-105(1)(a)(V)(A),
C.R.S. 1999.
Defendant filed a
Crim. P. 35(c) motion for post-conviction relief. His
motion was denied without
a hearing, and this appeal followed.
Defendant asserts that
the sentence imposed in this case violates his
understanding of the
plea agreement. He asserts that his plea agreement should
be construed as limiting
his possible sentence to the presumptive range because
neither he nor the prosecutor
contemplated a sentence in the aggravated range
due to the absence of
any aggravating circumstances in the case. Based on the
assumption of this argument,
he then claims that his term of imprisonment plus
the period of mandatory
parole must be limited to the maximum in the presumptive
range because he was
not properly advised of the mandatory parole requirement.
We are not persuaded
by either part of his argument.
I.
The proper interpretation
of a plea agreement is a question of law. St.
James v. People, 948
P.2d 1028 (Colo. 1997). It is based not on the subjective
understanding of the
defendant, but rather on the meaning a reasonable person
would have attached to
it under the circumstances. Thus, in the absence of
language by the parties
indicating they have actually agreed to
eliminate or circumvent
the mandatory parole requirement, we will construe
the plea agreement to
provide for a legal sentence. Craig v. People, 986 P.2d
951 (Colo. 1999); Benavidez
v. People, 986 P.2d 943 (Colo. 1999). Here,
defendant's plea agreement
contained no sentence concessions by the prosecutor.
Sentencing was entered
without any constraint on the discretion of the trial
court.
A.
Turning first to
the plea agreement, the record shows the following.
Defendant entered his
plea in open court, and it was accompanied by a written
plea agreement. The agreement
stated the charge defendant would plead guilty to,
and noted that the parties
had not agreed to any sentence concessions. Counsel
for defendant also recited
this same agreement at the beginning of
the providency hearing.
The plea agreement makes no mention of mandatory parole.
Defendant does not dispute
these facts, but argues that the plea agreement must
be read as limiting sentencing
to the presumptive range because there were
no aggravating circumstances
present in the case. We reject this argument.
Section 18-1-105(6),
C.R.S. 1999, permits the sentencing court to
impose a sentence twice
as long as the maximum in the presumptive range
(aggravated range) if
the court finds extraordinary aggravating circumstances.
Such circumstances can
be the mandatory aggravating factors listed at @
18-1-105(9)(a), C.R.S.
1999; the sentencing enhancing factors listed at @
18-1-105(9.5), C.R.S.
1999; or discretionary factors found by the court pursuant
to @ 18-1-105(9)(c),
C.R.S. 1999. Therefore, unless the sentencing court's
discretion is constrained
by the plea agreement, a defendant is at risk of
receiving a sentence
in the aggravated range if the court accepts his or her
plea.
Defendant argues
that the absence of aggravating circumstances should
permit
him to assume that his
plea agreement was limited to a sentence in
the presumptive range.
Here, as in most cases, the court ordered a pre-sentence
investigation report
and considered it along with the statements of counsel and
the defendant's allocution,
at the sentencing hearing held more than a month
after the plea of guilty.
At the time the plea was entered, no one could know if
the court would find
discretionary aggravating circumstances based on the
information that would
be presented at the time of the sentencing
hearing. In light of
the mandatory and discretionary aggravating provisions in
the sentencing statutes,
it was unreasonable for defendant to assume he could
not be sentenced in the
aggravated range. Therefore, we conclude that a plea
agreement that does not
constrain the sentencing court's discretion cannot be
construed to limit the
possible sentence to the presumptive range.
B.
Second, we find the
court's advisement regarding mandatory parole sufficient.
We review the record
as a whole to determine if the defendant was given
sufficient information
to be fairly put on notice of the fact that a sentence
includes a term of mandatory
parole. Craig v. People, supra; People v. District
Court, 868 P.2d 400 (Colo.
1994).
An advisement regarding mandatory parole need indicate
only that a mandatory
parole term occurs after,
in addition to, or distinct from any period of
imprisonment, and includes
the length of parole. Craig v. People, supra;
Benavidez v. People,
supra (an advisement of the possible penalties that
includes a period of
mandatory parole is sufficient).
Here,
defendant signed a written plea advisement form, and
his
initials appeared next
to the paragraph that included the statement, "I know
that I would be required
to serve up to five years on parole after serving
a sentence." We note
that this is very similar to the written advisement the
supreme court held sufficient
in Craig. At the providency hearing, the court
asked defendant if he
read and understood the written advisement, and defendant
stated, "Yes, Sir."
Also at the providency
hearing, the court explained the possible penalties
defendant faced. The
transcript reflects the following:
THE COURT: Okay. A minimum
of one year to maximum of three years to the
Department of Corrections.
If the court were to find extraordinary aggravation,
the court could sentence
you as much as six years to the Department of
Corrections. If the Court
were to find extraordinary mitigating circumstances,
the Court can sentence
you as little as six months to the Department of
Corrections, plus there
is a two-year period of mandatory parole.
Defendant argues that
the language in the oral advisement informed defendant
that the parole requirement
would only be applied to an extraordinary mitigated
range sentence. We disagree.
The oral advisement must be considered with
the other parts of the
record. When the written and oral advisements are
considered together with
defense counsel's certification that she had discussed
the penalties with defendant
and that defendant understood the penalties, we
conclude that the record
as a whole reveals that defendant was advised that he
would have to serve a
mandatory period of parole after serving a sentence to the
Department of Corrections.
II.
We also reject defendant's
argument that the two year mandatory period of
parole cannot now be
added to the sentence without violating his double jeopardy
rights. The constitutional
prohibition against double jeopardy protects against
multiple punishments
for the same offense. See Deutschendorf v. People, 920 P.2d
53 (Colo. 1996). Mandatory
parole, however, is a required part of
defendant's sentence
and is not a second punishment for the same offense.
People v. Barth, 981
P.2d 1102 (Colo. App. 1999); People v. Mayes, 981 P.2d 1106
(Colo. App. 1999). As
a matter of law, mandatory parole was part of
defendant's sentence
from the time it was first imposed. "[A] mittimus
that is silent as to
whether the mandatory period of parole is imposed should
be
read to include the imposition
of this requirement." Craig v. People, supra, 986
P.2d at 966.
III.
Defendant contends
that the trial court erred in denying his Crim. P. 35(c)
motion without appointing
counsel and holding a hearing. He asserts that he is
entitled to a hearing
to establish his understanding of the plea agreement. We
disagree.
A trial court may
deny a motion for post-conviction relief without an
evidentiary hearing and
may decline to appoint counsel if the motion, the files,
and the record establish
that the defendant is not entitled to relief as
a matter of law. Duran
v. Price, 868 P.2d 375 (Colo. 1994); People v.
Hartkemeyer, 843 P.2d
92 (Colo. App. 1992). In this case the trial court's file
contained a written statement
of the plea agreement. As stated above, that
agreement cannot be construed
to conform to the meaning defendant seeks to
impose on it. The file
also contains a written advisement and a written
statement of counsel
confirming that the defendant understood the charge and
the possible penalties.
These documents, taken together, were sufficient
for the trial court to
determine without a hearing that defendant was not
entitled to the relief
he was seeking.
The order is affirmed.
However, because the mittimus does not reflect the
statutorily required
period of mandatory parole, we remand to the trial court
with directions to correct
the mittimus to indicate that defendant is subject to
a two-year period of
mandatory parole.
JUDGE METZGER and JUDGE
RULAND concur.
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