People v. Moore ( 1992 )

Opinion by

Judge PIERCE.

Defendant, Carl E. Moore, appeals an order of the trial court denying his motion for post-conviction relief. We affirm in part and remand.

Defendant entered a plea of guilty to first degree sexual assault and received a stipulated 16-year sentence. Upon learning that he would not be subject to mandatory parole, defendant filed a motion for post-conviction relief alleging that the plea had not been entered knowingly and that he had received ineffective assistance of counsel.

At a hearing on the motion, defendant’s counsel testified that she had advised defendant that he would be eligible for mandatory parole after 8 years, provided he obeyed prison regulations. Defendant testified that he would not have entered the plea had he known that parole would be discretionary.

The trial court found that defendant had been prejudiced by the erroneous advice; however, it also found that trial counsel’s advice had accurately reflected parole practices when given. Therefore, it concluded that the representation had not fallen beneath the standards prevailing in the community, and it, accordingly, denied the motion. However, the trial court did not rule on defendant’s motion to withdraw his guilty plea because it had not been knowingly entered.

I.

Defendant first contends that the trial court erred in ruling that the representation he had received was ineffective. We disagree.

In order to prevail upon a claim of ineffective assistance of counsel, a defendant must establish both that the representation received was deficient and that the deficiency resulted in prejudice. And, the test for evaluating counsel’s performance is whether, under the circumstances faced by the attorney at the time, the assistance rendered was within the range of competence demanded of attorneys in criminal cases. People v. Garcia, 815 P.2d 937 (Colo.App.1991).

As the trial court noted, while the advice defendant received is no longer correct, see Thiret v. Kautzky, 792 P.2d 801 (Colo.1990), it did reflect the actual practice of the parole board at the time it was given. Also, defendant failed to establish that such advice was not that typically given by attorneys in criminal cases. Eligibility for parole is a collateral consequence of defendant's plea, and there is no requirement in our rules or the federal rules which require that defendant be advised on this subject. See Hill v. Lockhart, 731 F.2d 568 (8th Cir.1984), aff'd. on other grounds, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Accordingly, the trial court correctly ruled that defendant had failed to demonstrate that he had received ineffective assistance of counsel.

II.

Defendant next argues that his plea was invalid because the terms of the plea agreement were not followed and because he received an inadequate advisement. Defendant also contends that the new interpretation of the parole statutes violates the due process clauses of the U.S. and Colorado constitutions. We disagree. Thiret v. Kautzky, supra, and Aue v. Diesslin, 798 P.2d 436 (Colo.1990) are dispositive of these arguments.

III.

Defendant did file a timely motion to withdraw his guilty plea on the ground that it was not knowingly made. Although this motion was considered at the same time the trial court ruled on the issue of inadequacy of counsel, the court did not rule specifically on this issue. The issues are separate and distinct, and we cannot infer from the findings regarding ineffective assistance of counsel that a ruling was made on this additional issue. We, therefore, remand the cause to the trial court for such proceedings as are necessary to resolve this issue.

That part of the trial court’s order on the issue of ineffective assistance of counsel is affirmed, and the cause is remanded for further proceedings on the issue of withdrawal of the guilty plea.

REED, J., concurs. RULAND, J., dissents.