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Entering A Guilty Plea In Colorado

by Colorado Criminal Defense Lawyer – Attorney – H. Michael Steinberg 

Entering A Guilty Plea In Colorado is relatively straightforward – easy to understand and should be well studied by every Colorado criminal defendant who is considering accepting a plea bargain.

Entering A Guilty Plea In Colorado

Entering A Guilty Plea In Colorado

I Am About to Plead Guilty – What Will Happen In Court? The Procedures That You Must Understand Before You Plead Guilty

To fully understand the plea agreement process – you must understand:

(1)  the types of pleas are typically accepted by the court

(2)  the advisement procedures that the judge will follow in accepting or rejecting your plea of guilty

(3) how and why the judge follows procedures in the judge’s determination of whether the plea agreement will be accepted or rejected –

and finally –

(4) the advisement – sometimes called the Rule 11 advisement – which involves the types of questions that the judge will ask you in connection with accepting or rejecting a plea agreement.

What Are Then – The Different Types of Guilty Pleas?

Colorado criminal law recognizes four specific types of pleas and rejects one. (this article does not address not guilty by reason of insanity). 

They four pleas are:

          • a plea of not guilty
          • a straight guilty plea
          • an Alford plea
          • a plea of nolo contendere

                                   …are all at least within the law and potentially accepted

          • a conditional plea

                                    …is always rejected…. and is illegal.

 

Each plea has a different impact on your case. Notably many, if not most, judges in Colorado state court, will not accept Alford or Nolo Contendere pleas.

Colorado Criminal Law About Entering A Guilty Plea – The Plea of Not Guilty

The right to plead not guilty legally protected by a defendant’s Fifth and Sixth Amendments rights against self-incrimination, to a trial by jury, and to confront his accusers.

A plea of not guilty also invokes the presumption of innocence and mandates that the state prove all elements of the crime charged beyond a reasonable doubt.

If a defendant REFUSES TO ENTER ANY PLEA – a judge must enter a plea of not guilty on behalf his or her behalf. This also occurs if a judge refuses to accept a plea agreement.

Entering A Guilty Plea In Colorado – The “Straight” Guilty Plea

What has been called by those in the system as a “straight plea” is an unconditional confession of guilt that is no different from a complete confession that ends with a conviction. This plea waives any  privilege against self- incrimination, the right to trial by jury, the right to confront one’s  accusers, all non jurisdictional defects in the proceedings, and the defendant is also prohibited from  asserting constitutional challenges to any of the pretrial proceedings. Essentially – it ends the burden on the state to prove the crime.

This plea waives all potential claims against the government except raising constitutional claims related to the jurisdiction of the court – that is – the power of the government to bring the charges against him. A defendant may later argue that the charges failed to state a real offense, that the statute under which the case was brought was unconstitutional, or that the prosecution is barred by double jeopardy.

Impact Of a Straight Plea In A Civil Case

While a pleads guilty binds the defendant who pleads – it can impact no other defendant in the case. It is also admissible against the defendant who entered it in a civil case and may prevent him from controverting facts that are the same he admitted in the criminal case.

Entering A Guilty Plea In Colorado – Court’s May Reject Certain Forms of Pleas – The Alford Plea

Any judge has the right – the discretion to accept or reject a plea of guilty.

Colorado Crim  P. 11 – below – sets forth detailed procedures that must be followed by the judge.

An Alford plea is a plea named after the United States Supreme Court decision of North Carolina v. Alford.. It is  a plea of guilty where the accused continues to maintain his innocence but a guilty plea is allowed to be entered for him….. As noted above, most Colorado state prosecutors will not plea bargain to an Alford plea and if they do most judges will not accept them.

If an Alford plea is proposed by the defendant – and the DA agrees – and the judge is considering it  – he or she will most often NOT ACCEPT an Alford plea without a very strong factual showing of guilt. 

While the defendant makes no admission of guilt, the final impact of an Alford plea is the same as a straight plea and – in criminal court – and carries the same consequences. Entry of the plea must follow the same advisement as a “straight guilty plea.” What is different is when the plea is actually entered – the defendant says ” I am entering this plea pursuant to North Carolina versus Alford.”

The reason Alford pleas are not favored by Colorado judges is because the defendant is trying to “haveit both ways” – he is seeking to benefit from the plea but not accepting complete responsibility for the charged or plea bargained offense.

While they are rare – they most often occur when a defendant – after a thorough investigation – is convinced that the DA’s evidence is overwhelming.

Entering A Guilty Plea In Colorado – Court’s May Reject Certain Forms of Pleas -The Nolo Contendere Plea

Nolo contendere is Latin for “I will not contest it.” like the Alford Plea – it is almost always opposed by DA’s except in the most unusual cases or circumstances.

The Benefit Of The Nolo Plea

A “nolo” plea has the same effect as a straight guilty plea in almost every way. However, in some cases – not addressed here, a nolo plea may not be used against the defendant as an admission of guilt in a later civil suit for the same act. Therefore a defendant is not “estopped” – PREVENTED  from later denying the specific facts that underlay the criminal case.

The idea is to protect a criminally accused from subsequent and somewhat “automatic” civil liability for the same or a related civil wrong.

A nolo plea is an admission of guilt for purposes of the criminal case and the convicted person  is subject to the same penalty that is imposed on a plea of guilty.

A judge will not accept a nolo plea unless the judge finds that it is in the “public interest.” The judge will look at the nature and severity of the offense, the defendant’s character, the impact on the crime on the victim, the deterrent effect of the plea agreement, the prior criminal history of the defendant, and the potential for saving the time and expense of a trial.

Entering A Guilty Plea In Colorado – The So Called “Conditional Plea” Of Guilty

There is a simple rule of law in Colorado – conditional pleas – which by definition reserve the right to appeal an unsuccessful motion to suppress evidence and also result in a guilty plea ….are not authorized under Colorado law.

Entering The Plea

Colorado Rule of Criminal Procedure – Rule 11 sets forth the procedural and substantive requirements to be followed by the judge to ensure that the plea is “knowingly, intelligently, and voluntarily” made, and that there is a “factual basis for the plea. “

Rule 11 is addresses to three core concerns of the judge in permitting the entry of the plea:

 

          • the plea must be free from coercion;
          • the defendant must understand the nature of the charges against him;
          • and the defendant must understand the consequences of his plea. 

Here is a reprint of the entire Crim. P. Rule 11 statute for your review:

Rule 11. Pleas.

(a) Generally.  A defendant personally or by counsel may plead guilty, not guilty, not guilty by reason of insanity (in which event a not guilty plea may also be entered), or with the consent of the court, nolo contendere.

(b) Pleas of Guilty and Nolo Contendere.  The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:

(1) That the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;

(2) That the plea is voluntary on defendant’s part and is not the result of undue influence or coercion on the part of anyone;

(3) That he understands the right to trial by jury and that he waives his right to trial by jury on all issues;

(4) That he understands the possible penalty or penalties;

(5) That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the pre-sentence report, if any;

(6) That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads;

The Sixth Amendment Governs The Entry of the Plea

The Sixth Amendment is satisfied when the trial court informs the defendant of the nature of the charges against him, of his right to be counseled regarding his plea, and the range of allowable punishments attendant upon the entry of a guilty plea.

A factual basis must be entered on the record or waived – but a full evidentiary hearing is not necessary to establish a factual basis. Believe it or not – since all defenses are waived to take a plea offer – a guilty plea does not have to be supported by legally admissible evidence. 

Judge May Defer To Sentencing – That Is – Wait To Decide Whether To Accept The Plea Agreement

Under Rule 11, the court may either immediately accept a guilty plea and enter the conviction or defer a decision on accepting a plea agreement until a later – sentencing – date. There is no requirement that a judge accept the plea agreement immediately upon entry of the plea.

If the court decides to later reject a plea agreement, he may withdraw his plea as a matter of right. But a defendant cannot – under most instances  – withdraw his guilty plea after it has been accepted by the court. However – before sentencing occurs – he CAN withdraw his plea ” upon a showing of a fair and just reason” under Colorado Law (See LINK Withdrawing A Plea)

Understanding The Legal Grounds For The Plea Bargaining Process

The following law provides a legal basis for plea bargaining in Colorado – note that judges may NOT participate:

Colorado Rule of Criminal Procedure – Rule 11 (f) Plea Discussions and Plea Agreements

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. He should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for or refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one of the following depending upon the circumstances of the individual case:

(I) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere;

(II) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant’s conduct;

(III) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) The trial judge shall not participate in plea discussions.

(5) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions.

(6) Except as to proceedings resulting from a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his defense counsel and the district attorney engaged in plea discussions or made a plea agreement shall not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceeding.

Colorado Plea Bargaining And Plea Agreements

A judge is never required to accept a proposed plea agreement presented to him.  But as all in the system well know – it is the rare case where a judge will reject ab agreement of the parties. The fact that 95% plus of all Colorado criminal cases end in guilty pleas, this authority to prohibit a specific plea agreement is not exercised often.

As noted in the law above – judges may not participate in any plea discussions with a view toward reaching an agreement. The basic reasons for this is to prevent the potential for coercing the defendant to accept the plea agreement, to protect the integrity of the criminal justice system, and to preserve appearance of impartiality of the judge.

A Judge Who Balks At Accepting A Plea Agreement

When a judge starts to balk – or voices objections – or questions a plea agreement – an experienced criminal defense lawyer must carefully argue for the reasons to support the acceptance of the agreement if he – or she is convinced of course – it is in the best interests of the client. It may be necessary for Colorado criminal defense lawyer to argue the factual basis for the plea to supplement, the factual basis provided by the prosecutor.

Please call our law firm if you have questions about ..

Entering A Guilty Plea In Colorado

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277. 

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

Territory:

The Colorado Steinberg Criminal Defense Law Firm serves clients charged with criminal offenses in the Denver Metro Region and throughout Colorado, including Adams County, Arapahoe County, Boulder County, Broomfield County, Denver County, Douglas County, Jefferson County, Larimer County, El Paso County, Pueblo County, Weld County and Grand County; and communities such as ; Centennial, Denver, Boulder, Aurora, Lakewood, Littleton, Westminster, Thornton, Northglenn, Brighton, Greenwood Village, DTC, Denver Tech Center, Highlands Ranch, Castle Rock, Lone Tree, Englewood, Golden, Grand Junction and all across the Front Range.

If you have questions about Entering A Guilty Plea In Colorado in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards Entering A Guilty Plea In Colorado.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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