CO Code § 16-7-206 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 7 - Separate Trial - Arraignment - Plea Agreements - Deferred Prosecution and Deferred Sentencing|Part 2 - Arraignment|§ 16-7-206. Guilty Pleas - Procedure and Effect

  Every person charged with an offense shall be permitted to tender a plea of guilty to that offense if the following conditions have been satisfied:   The court shall have advised the defendant that if the plea is accepted the defendant shall be determined to have waived his right to trial by jury on all issues including the determination of the penalty to be assessed, and the court shall also have advised the defendant as to the maximum and minimum penalties that the court may impose.    In class 1 felonies or where the plea of guilty is to a lesser included offense, a written consent has been filed with the court by the district attorney.    In all felony, level 1 drug misdemeanor, and class 1 misdemeanor cases, the defendant shall be represented by counsel or waive his right thereto in open court, and the guilty plea shall be tendered in open court by the defendant in the presence of counsel, if any.       The refusal or consent of the district attorney or the court to accept a plea of guilty to the charge shall not be a basis for assignment of error, and such refusal or acceptance by the district attorney or court is final.    The acceptance by the court of a plea of guilty acts as a waiver by the defendant of the right to trial by jury on all issues including the determination of the penalty to be assessed, and the acceptance of such plea also acts as a conviction for the offense.     History. Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-206 . L. 2013: (1)(c) amended,(SB 13-250), ch. 333, p. 1930, § 43, effective October 1.    ANNOTATION   Law reviews. For article, “Recent Judicial Modification of Habitual Criminal Act”, see 23 Dicta 84 (1946). For article, “Procedure on Plea of Guilty”, see 27 Dicta 364 (1950). For article, “Plea of Guilty as an Admission”, see 33 Dicta 188 (1956). For article, “One Year Review of Criminal Law”, see 34 Dicta 98 (1957). For note, “One Year Review of Constitutional Law”, see 41 Den. L. Ctr. J. 77 (1964). For note, “One Year Review of Colorado Law -- 1964”, see 42 Den. L. Ctr. J. 140 (1965).   Annotator's note. Since § 16-7-206 is similar to repealed § 40-1-302 , C.R.S. 1963, § 39-7-8 , C.R.S. 1963, § 39-7-8 , CRS 53, and CSA, C. 48, § 482, relevant cases construing those provisions have been included in the annotations to this section.   This section is mandatory. The provisions of this section dealing with arraignment, advice of counsel, and warning as to consequences of the guilty plea are mandatory and a prerequisite under due process. Vanderhoof v. People, 152 Colo. 147 , 380 P.2d 903 (1963).   This section deals with certain procedures that are to be followed by trial courts where the accused enters a plea of guilty. Burbach v. Tinsley, 143 Colo. 449 , 354 P.2d 170 (1960).   It satisfies requirements of due process. Compliance with this section, provisions for the appointment of counsel for indigent defendants, and §§ 16 and 25 of art. II, Colo. Const., satisfies the due process requirement of the fourteenth amendment to the United States Constitution.Santo v. Santo, 120 Colo. 13 , 206 P.2d 341 (1949).   And failure to comply would render sentence void. If a prisoner pleading guilty is entitled to preliminary safeguards, including warning as to the consequences of the plea, and is not told that he may be imprisoned for life, the life sentence would be void. Vanderhoof v. People, 152 Colo. 147 , 380 P.2d 903 (1963).   Court may refuse to accept guilty plea. In some circumstances a trial court, in the protection of an accused, might well refuse to accept a tendered plea of guilty, while in other circumstances protection of the interests of the people might demand similar action. Matz v. People, 133 Colo. 45 , 291 P.2d 1059 (1956).   Defendants are in jeopardy upon acceptance of guilty plea. Where defendants plead guilty to a charge of robbery, which pleas are accepted, and evidence produced for the purpose of enlightening a court prior to sentence is found to be insufficient to sustain the charge, whereupon the court orders the information dismissed and the defendants discharged, whether such orders are right or wrong, the defendants are in jeopardy. Markiewicz v. Black, 138 Colo. 128 , 330 P.2d 539 (1958).   Constitutional requirements for valid plea of guilty. The constitution requires that the defendant be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt when pleading guilty. People v. Canino, 181 Colo. 207 , 508 P.2d 1273 (1973).   Rather than ritualistic compliance, the constitution requires only that a defendant pleading guilty be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt. People v. Duran, 183 Colo. 180 , 515 P.2d 1117 (1973).   A plea of guilty should not be set aside if a factual basis exists for the plea and if the defendant has knowledge of the elements of the crime and enters the plea voluntarily. People v. Hutton, 183 Colo. 388 , 517 P.2d 392 (1973).   A defendant must be made aware of the elements of the crime with which he is charged before a guilty plea may be accepted. People v. Musser, 187 Colo. 198 , 529 P.2d 626 (1974).   A plea of guilty, to be valid, must be intelligently made. If there is any question, the trial court has the duty to determine the defendant's mental capacity to understand the nature and effect of such a plea before accepting it. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   For a waiver of a fundamental right to be valid, the defendant must voluntarily, knowingly, and intentionally relinquish that right. People v. Harrington, 179 Colo. 312 , 500 P.2d 360 (1972).   A guilty plea cannot stand if it lacks a factual basis and is not voluntary and accurate. People v. Alvarez, 181 Colo. 213 , 508 P.2d 1267 (1973).   Plea of guilty is clearly involuntary if it is induced by threats or by a promise of lenient sentence. People v. McClellan, 183 Colo. 176 , 515 P.2d 1127 (1973).   If a plea of guilty results from plea bargaining and the bargain is not honored, the judgment must be vacated. People v. McClellan, 183 Colo. 176 , 515 P.2d 1127 (1973).   A plea of guilty by one who is insane is a nullity. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   Prior to Boykin v. Alabama (395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)) there was no prescribed ritual to be performed to satisfy the court that the defendant understood the nature of the charge when pleading guilty. People v. Moore, 185 Colo. 54 , 521 P.2d 768 (1974).   Since Boykin v. Alabama, courts must put finding of voluntariness on record. People v. Gutierrez, 182 Colo. 55 , 511 P.2d 20 (1973).   A valid plea of guilty waives substantially all the fundamental procedural rights afforded the accused in a criminal proceeding such as his rights to the assistance of counsel, confrontation of witnesses, and trial by jury. People v. Harrington, 179 Colo. 312 , 500 P.2d 360 (1972).   A guilty plea does not waive a valid double jeopardy claim of being punished twice for the same offense. People v. Gardner, 250 P.3d 1262 (Colo. App. 2010).   A guilty plea waives an as-applied equal protection claim to the constitutionality of a statute. People v. Gardner, 250 P.3d 1262 (Colo. App. 2010).   Waiver must affirmatively appear. Every reasonable presumption against waiver must be indulged, and the record must affirmatively show that the accused understandingly and voluntarily waived the constitutional right which is in issue by a plea of guilty. People v. Harrington, 179 Colo. 312 , 500 P.2d 360 (1972).   And burden on accused to attack such waiver. If there is some showing of an affirmative waiver, the burden of proof rests with the defendant to show by a preponderance of the evidence that his apparent waiver was not effective. People v. Harrington, 179 Colo. 312 , 500 P.2d 360 (1972).   Plea of guilty entered by counsel valid. If an indicted person is actually present in open court with his attorney who is competent to represent him and does so under circumstances which fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces when the attorney enters a plea of guilty for him, should have exactly the same force and effect as though he had spoken himself in the words of the attorney. Marler v. People, 139 Colo. 23 , 336 P.2d 101 (1959).   Uncertainty as to whether evidence was sufficiently direct to warrant death penalty does not mean guilty plea was unintelligently made and invalid and attorneys had a reasonable foundation for advising that the death penalty was a real possibility prompting petitioner's guilty plea. Scheer v. Patterson, 429 F.2d 907 (10th Cir. 1970), cert. denied, 400 U.S. 996, 91 S. Ct. 471, 27 L. Ed. 2d 445 (1971).   Evidentiary hearing on failure to advise possible penalties not required. Where trial court in providency hearing advises petitioner of possible sentence term, and sentences imposed were within that range, and trial court did not treat either offense as a second offense, evidentiary hearing on petitioner's contention that sentencing court failed to properly inform him of the possible penalties for crimes to which he entered guilty plea is not required. Hyde v. Hinton, 180 Colo. 324 , 505 P.2d 376 (1973).   Formalistic recitation by the trial judge at a providency hearing is not a constitutional requisite. People v. Canino, 181 Colo. 207 , 508 P.2d 1273 (1973).   Right of defendant held sufficiently protected. The right of defendant to be advised concerning the consequences of his pleas of guilty which pleas resulted in a life sentence under the habitual criminal statute, held sufficiently protected. Glass v. People, 127 Colo. 210 , 255 P.2d 738 (1953).   Failure to determine plea was made intelligently denied due process. In a criminal case where a defendant was unable at the time of his guilty plea to remember the details of the offense and where since its commission he has been subconsciously unable to remember these details until a relatively recent date, the failure of the judge at the trial to consider whether accused was insane at the time and could thus enter a plea of guilty intelligently constituted a violation of procedural, if not substantive, due process. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   A guilty plea under subsection (3) constitutes a conviction, even if subsequently dismissed under a deferred judgment, for purposes of determining whether the case can be sealed pursuant to § 24-72-308 . M.T. v. People, 275 P.3d 661 (Colo. App. 2010), aff'd, 2012 CO 11, 269 P.3d 1219.   Conviction by guilty plea may be used for impeachment purposes. Acceptance by a court of a guilty plea, pursuant to subsection (3), may be equated to a jury verdict which has been sustained following a motion for a new trial, and, even if the defendant is never sentenced following that guilty plea, that conviction may be used for impeachment purposes should the defendant testify at a later trial. People v. Baca, 44 Colo. App. 167, 610 P.2d 1083 (1980).   Plea to misdemeanor or traffic offense. Before accepting a plea of guilty or nolo contendere to a misdemeanor or traffic offense, the trial court must be satisfied that the defendant's decision to acknowledge guilt has been made knowingly and understandingly. People v. Lesh, 668 P.2d 1362 (Colo. 1983).   Guilty plea entered voluntarily. People v. Musser, 187 Colo. 198 , 529 P.2d 626 (1974).   Although a guilty plea under subsection (3) acts as a conviction, the conviction process is incomplete until the entry of a judgment of conviction under Crim. P. 32(c). People v. Wiedemer, 899 P.2d 283 (Colo. App. 1994).   Conditional guilty pleas are not authorized in Colorado by statute or court rule. People v. Neuhaus, 240 P.3d 391 (Colo. App. 2009), aff'd, 2012 CO 65, 289 P.3d 19; People v. Hoffman, 2012 CO 66, 289 P.3d 24; Escobedo v. People, 2012 CO 67, 289 P.3d 25.   Defendant who pleads guilty may not bring an as-applied equal protection postconviction challenge. People v. Ford, 232 P.3d 260 (Colo. App. 2009).   Penalty advisement required by subsection (1)(a) does not apply to deferred judgment revocations. The deferred judgment revocation statute incorporates this section only insofar as those matters that are applicable. Since the revocation complaint alleges a violation of the deferred judgment agreement and not a new crime, the penalty advisement for a new criminal offense does not apply. Finney v. People, 2014 CO 38, 325 P.3d 1044.   Applied in People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975); People v. Palmer, 42 Colo. App. 460, 595 P.2d 1060 (1979); Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984).