People v. Wilson , 1983 Colo. App. LEXIS 1126 ( 1983 )

TURSI, Judge.

Defendant appeals from the denial of his Crim.P. 35(c) motion. He contends that his guilty plea to the charge of rape in 1973 must be set aside because he was not adequately advised of the elements of the offense, and that his one day to life sentence must be vacated because the trial court misunderstood the operation of the Colorado Sex Offenders Act. See § 16-13-201, et seq., C.R.S.1973 (1978 Repl.Vol. 8). We reverse.

In 1973, the defendant pled guilty to rape in exchange for the prosecution’s promise to drop other pending charges and to proceed with sentencing under the Sex Offenders Act. At the providency hearing the trial court did not separately discuss each element of rape with the defendant although the following colloquy occurred:

“THE COURT: All right. Well, let me generally tell the defendant at this time, you understand that you are charged ... with the charge of rape, in that ... you did unlawfully and feloniously have sexual intercourse with a female person not your spouse ... by compelling her to submit by force and by threat of serious bodily harm ...

Do you understand the nature of the charge against you?

THE DEFENDANT: Yes, sir.”

At the hearing on the Crim.P. 35(c) motion, defendant’s 1973 counsel was called as a witness. The attorney testified that he lacked specific recall, but was certain that he had discussed the elements of rape with the defendant. However, on cross-examination the attorney stated that he did not advise the defendant that rape required a mental state of “knowingly” because he did not learn of this element until after the plea was entered.

The trial court hearing the Crim.P. 35(c) motion concluded that “knowingly” was the requisite mens rea for the crime of rape, even though the element was not specified in the statute under which defendant was convicted, C.R.S.1963, 40-3-401 (1971 Cum.Supp.). See People v. Naranjo, 200 Colo. 1, 612 P.2d 1099 (1980). It found that neither the sentencing court nor defense counsel had advised defendant of this element. Nevertheless, the court concluded that defendant was apprised of the nature of the offense because the information read to defendant at the providency hearing contained the word “feloniously” which, the court concluded, is equivalent to “knowingly.” See Williams v. People, 26 Colo. 272, 57 P. 701 (1899).

The defendant argues that the court’s reading of the information, and specifically the word “feloniously,” was insufficient to advise him of the mens rea element of rape. We agree.

The Fourteenth Amendment and the applicable version of Crim.P. 11 require that the defendant understand the nature of the charge, including the requisite mental element. Crim.P. 11(b). Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); People v. Cumby, 178 Colo. 31, 495 P.2d 223 (1972). In People v. Cisneros, 665 P.2d 145 (Colo.App.1983), we held that reading the information was insufficient because it contained no reference to the “mental state of knowing conduct required for conviction of second degree burglary under § 18-4-203, C.R.S.1973 (1978 Repl.Vol. 8).”

A person may commit a felony recklessly, e.g., manslaughter (§ 18-3-104, C.R. S.1973) (1978 Repl.Vol. 8), or may commit a strict liability felony, e.g., vehicular homicide (§ 18-3-106, C.R.S.1973) (1978 Repl. Vol. 8). Therefore, we cannot conclude, as did the trial court, that since the allegation of feloniously may be adequate to withstand a challenge to the charging document after conviction by a jury, William v. People, supra, it also is sufficient to withstand a challenge to a guilty plea premised upon a lack of understanding of the essential elements of the crime.

Under the facts here, People v. Muniz, 667 P.2d 1377 (Colo.1983), is dispos-itive. Consequently, the judgment and sentence must be vacated and the case remanded for rearraignment. Charges dropped as a result of the plea arrangement may be reinstated. People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974).

In light of this disposition we need not address the other issues raised by the defendant.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

KELLY, J., concurs. BERMAN, J., dissents.