Chae v. People , 13 Brief Times Rptr. 1124 ( 1989 )

Justice LOHR

delivered the Opinion of the Court.

The petitioner, Byong Choi Chae, filed a Crim.P. 35(c) motion to vacate his plea of guilty to a charge of second degree sexual assault. After a hearing on the petitioner’s motion, the district court concluded that the guilty plea was voluntarily and knowingly entered, and it denied Byong Choi Chae’s motion to vacate the plea. The Colorado Court of Appeals affirmed the trial court’s order in an unpublished opinion. People v. Byong Choi Chae, No. 85CA1506 (Colo.App. Oct. 29, 1987). We granted certiorari to review the court of appeals’ decision, and we now affirm in part and reverse in part.

I.

Byong Choi Chae (“Chae” or “the petitioner”) was charged with second degree kidnapping, § 18-3-302, 8B C.R.S. (1986), and first degree sexual assault, § 18-3-402, 8B C.R.S. (1986), in Arapahoe County District Court on May 6, 1982, based on events that occurred earlier that month.¹ Chae is a South Korean national who has a limited understanding of English. Chae entered into a plea agreement with the district attorney on June 20, 1983, whereby he agreed to plead guilty to the lesser charge of second degree sexual assault and the People agreed to the dismissal of the second degree kidnapping and first degree sexual assault charges filed against him. The plea agreement also provided that if a sentence to the department of corrections were imposed, the sentence would be suspended upon three conditions: (1) that Chae submit to deportation proceedings in federal court, (2) that he not contest the deportation proceedings, and (3) that he in fact be deported from the United States.

After conducting the providency hearing required by Crim.P. 11, the district court accepted Chae’s guilty plea and set August 25, 1983, as the sentencing date. Prior to sentencing, Chae moved to withdraw his guilty plea, asserting that due to communication difficulties with the Korean interpreter he did not understand the nature of the charge or the consequences of his plea. The district court granted the motion to withdraw the guilty plea, and it reinstated the second degree kidnapping and first degree sexual assault charges against Chae. The case was then set for a jury trial.

On the second day of trial, after a jury had been selected, Chae decided to accept a plea agreement that was essentially the same as the one previously entered. Chae agreed to plead guilty to second degree sexual assault. He also agreed to be sentenced to the department of corrections and that the sentence of incarceration would be suspended on the conditions that Chae submit to deportation proceedings, that he not contest those proceedings, and that he in fact be deported. In exchange, the district attorney agreed to dismiss the first degree sexual assault and second degree kidnapping charges and to recommend to the trial court that Chae be sentenced to the department of corrections but that the sentence be suspended on the foregoing conditions agreed to by Chae. The district court conducted another Crim.P. 11 providency hearing with the assistance of a Korean interpreter.² In the colloquy with the district court, Chae stated that he understood he was waiving his right to a jury trial and that the decision to plead guilty was his alone. Chae also acknowledged that by pleading guilty he admitted participating in the acts underlying the charges filed against him.

At the conclusion of the providency hearing, the district court found, among other things, that the petitioner understood his rights, that he knowingly, freely and voluntarily waived those rights, and that a factual basis existed for the guilty plea. The district court then accepted the guilty plea, and sentenced Chae according to the recommendation in the plea agreement.³ Based on the aggravating circumstances present in the sexual assault, the district court sentenced the petitioner to an eight-year term of incarceration, twice the presumptive maximum for the class 4 felony of second degree sexual assault. §§ 18-1-105(l)(a)(I), 18-3-403(2), 8B C.R.S. (1986). This sentence was suspended on the condition that Chae return to the court on May 25, 1984, at 11:30 a.m. to surrender to federal immigration authorities and that he not contest deportation proceedings.⁴

Chae failed to appear in the district court on May 25, 1984, in compliance with the sentencing conditions. Instead, he returned to South Korea on his own without being deported. When Chae failed to appear as required, the trial court issued a bench warrant for his arrest. In May 1985, the petitioner was detained when he attempted to re-enter the United States. He was transferred to the Arapahoe County jail based on the outstanding bench warrant.

Chae then filed a Crim.P. 35(c) motion to vacate his guilty plea,⁵ alleging that his plea had not been entered knowingly or voluntarily because he had been unaware of the impact of the deportation provisions of the plea agreement and sentence recommendations.⁶ The district court held a hearing on the motion, at which Chae testified that he would not have agreed to the plea bargain if he had known its effect would be to cause him to be deported from the United States and permanently prevent him from returning to this country. The prosecution and the defense stipulated at the hearing that Chae’s attorney in 1984 explained to him that the agreement provided that if he pled guilty and agreed to be deported, he would not have to face incarceration in the United States. At the time the plea was entered, the petitioner’s attorney also explained to him that deportation meant that Chae would have to return to South Korea and would never be able to re-enter the United States. According to the attorney who represented Chae in 1984, Chae appeared to understand the effect of the deportation provisions.

At the conclusion of the Crim.P. 35(c) hearing, the district court noted that Chae had already been allowed to withdraw a plea once on the ground that he did not understand the full effect of the plea agreement. The district court then determined that Chae understood the effect of the deportation provisions when he entered his second guilty plea, and that the plea was voluntarily entered. Based on these determinations, the district court denied Chae’s motion to vacate his plea. Because Chae had violated the conditions of the original plea agreement by not appearing as ordered to submit to deportation proceedings, the district court reyoked the suspended sentence and sentenced Chae to an eight-year term in the department of corrections plus one year of parole. Chae appealed to the court of appeals from the district court’s denial of his motion to vacate his guilty plea.

The court of appeals concluded that the original suspended prison term imposed by the district court was an illegal sentence because the alternative sentencing provisions of section 16-11-101, 8A C.R.S. (1986), do not authorize a district court to suspend execution of a sentence to imprisonment. The court of appeals also held that the district court corrected this illegal sentence when it sentenced Chae to eight years imprisonment upon his return to the United States. Next, the court of appeals reasoned that Chae should not be permitted to withdraw his plea because he “received the sentence he bargained for at the time of the plea agreement, violated the terms of the sentence and agreement knowing that the violation would subject him to eight years of imprisonment pursuant to the agreement, and is currently subject to a legal sentence of eight years imprisonment.” People v. Chae, No. 85CA1506, slip op. at 6 (Colo.App. Oct. 29, 1987). We granted certiorari to review the court of appeals’ decision.

II.

The first issue to be determined is whether the original sentence imposed by the district court was an illegal sentence. We agree with the court of appeals’ conclusion that the sentence of a suspended prison term was illegal under section 16-11-101 and our decisions in People v. District Court, 673 P.2d 991 (Colo.1983), and People v. Flenniken, 749 P.2d 395 (Colo.1988).

In People v. District Court, the defendant entered into a plea bargain and pled guilty to a second degree murder charge. The defendant received a suspended prison sentence upon the conditions that he participate for two years in a work-release program, continue therapy, and not possess or carry any weapon for two years. 673 P.2d at 993-94. One week later, the trial court revoked the suspension of the defendant’s sentence for reasons unrelated to the conditions imposed, and placed the defendant in the custody of the department of corrections. The defendant objected to the revocation of the suspended sentence, asserting that he had done nothing to warrant the revocation. Id. at 994.

In reviewing the propriety of the sentence in People v. District Court, we noted that a “court may not impose a sentence that is inconsistent with the terms specified by statutes.” 673 P.2d at 995. Under section 16-11-101, the trial court may grant probation, if a defendant is eligible for probation, or the trial court may impose a sentence of imprisonment for a definite period of time. Applying these standards, we determined that the sentence imposed in People v. District Court was an illegal sentence because it impermissibly combined provisions for a work-release program, an alternative available only in connection with probation, with a sentence of imprisonment for a definite period of time. 673 P.2d at 996.

In People v. Flenniken, 749 P.2d 395 (Colo.1988), the- defendant pled guilty to two counts of theft and was sentenced to four years imprisonment plus one year of parole on each count, with the sentences to run concurrently. The trial court then suspended the prison sentences, placed the defendant on eight years probation for each count, and ordered him to make restitution. We held that “[t]he trial court’s action in imposing a sentence to imprisonment, suspending that sentence, then sentencing defendant to a term of probation violates section 16-11-101.” Flenniken, 749 P.2d at 398. We rejected the argument that People v. District Court should be limited to the unique facts of that case; instead, we stated that People v. District Court stands for the broad proposition that there is “no statutory authority permitting a court to suspend execution of a sentence to imprisonment.” Flenniken, 749 P.2d at 398.⁷

Under the standards announced in People v. District Court and Flenniken, the original sentence imposed on Chae was clearly an illegal sentence. The district court in the instant case had no statutory authority to suspend the sentence of imprisonment and to impose conditions on that suspension. Flenniken, 749 P.2d at 398. Accordingly, we affirm that part of the court of appeals’ judgment holding that the original sentence imposed on Chae was illegal under section 16-11-101.⁸

III.

Having determined that Chae’s original sentence was illegal, we must next decide whether this illegal sentence requires the vacation of Chae’s guilty plea. The court of appeals held that Chae’s plea need not be vacated because the trial court corrected the illegal sentence and, despite the illegality, Chae received the sentence for which he originally bargained. We disagree with the court of appeals’ analysis, and we conclude that Chae’s plea must be vacated because the original illegal sentence was an integral part of the plea agreement in this case.

A.

Whether a guilty plea entered as part of a plea agreement that provides for an illegal sentence is invalid and must be vacated is a question of first impression for this court. Generally, a guilty plea must be voluntarily, knowingly and intelligently made in order to be valid. Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Lacy v. People, 775 P.2d 1, 4-6 (Colo.1989) (guilty plea must be voluntary in the constitutional sense, i.e., defendant must understand nature of constitutional protections he is waiving and must receive real notice of true nature of charge against him); People v. Hrapski, 718 P.2d 1050, 1055-56 (Colo.1986) (“guilty plea must be given voluntarily and with an understanding of the consequences of such plea”). To be voluntary, a guilty plea cannot be induced by misrepresentation, including unfulfilled or unfulfillable promises. Brady, 397 U.S. at 755, 90 S.Ct. at 1472. “A plea induced by a promised sentence that is statutorily unavailable is invalid.” J. Bond, Plea Bargaining & Guilty Pleas § 7.18(a) (2d ed. 1982).

Other jurisdictions have held that where a defendant pleads guilty by entering into a plea agreement that includes provisions for an illegal sentence, the defendant must be allowed to withdraw his plea and plead anew. See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (“when a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea”); Rojas v. State, 450 A.2d 490, 493 (Md.App.1982) (“when a material term of a sentence based upon a plea agreement is unenforceable, the appropriate remedy is to vacate fhe entire sentence and the corresponding plea agreement”); State v. Nemeth, 214 NJ.Super. 324, 519 A.2d 367, 368 (App.Div.1986) (“there can be no plea bargain to an illegal sentence”; case remanded to allow defendant opportunity to withdraw plea or renegotiate a permissible plea agreement).

Similarly, in Colorado we have held that a court’s rejection of a sentencing recommendation made by the prosecution pursuant to the plea agreement upon which the defendant entered his guilty plea “draws into question the voluntariness of the plea.” People v. Wright, 194 Colo. 448, 450, 573 P.2d 551, 553 (1978). Thus, under Crim.P. 32(d),⁹ a defendant is permitted to withdraw his guilty plea when the trial court chooses not to follow the prosecutor’s sentence recommendation made as promised in a plea agreement. See Wright, 194 Colo, at 450, 573 P.2d at 553.

The concerns about a fundamentally fair plea bargaining procedure that guided our interpretation of Crim.P. 32(d) in Wright apply with equal force to the present case. When, as in Wright, a defendant enters a plea agreement that includes a recommendation for a particular sentence, the fact that the sentence is rejected by the court “removes the basis ■ upon which the defendant entered his plea and draws into question the voluntariness of the plea.” Wright, 194 Colo, at 450, 573 P.2d at 553. The same is true when the recommended sentence is illegal and therefore cannot be validly imposed. Accordingly, we conclude that when a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence. See Brady,- 397 U.S. at 748, 90 S.Ct. at 1468; Forbert, 437 So.2d at 1081; Rojas, 450 A.2d at 493-94; Nemeth, 519 A.2d at 368.

B.

In the present case, the recommendation for the illegal suspended prison sentence conditioned on Chae’s submission to deportation proceedings was part of the plea agreement by which Chae pled guilty to second degree sexual assault. At the Crim.P. 35(c) hearing, the district court found that Chae’s plea agreement

had three consequences as far as the Defendant was concerned. First of all, the Defendant would plead guilty and have a felony conviction. Second, the Defendant would serve eight years in the Colorado Department of Corrections if he were not deported as part of the plea agreement. Third, he would be deported voluntarily as part of the plea agreement.

The district court’s finding reflects that the sentence recommendation was a material part of, and not a separate consideration from, the plea agreement entered into by Chae. This conclusion is adequately supported by the record.

The suspended sentence provisions were included on the same stipulation and plea agreement document that Chae executed providing for his guilty plea in exchange for dismissal of the greater charges. When Chae signed this document at the Crim.P. 11 providency hearing, his attorney stated for the record that the stipulation “reflect[ed] the sentence and plea agreement in th[is] case.” (Emphasis added.) Chae and the prosecution stipulated at the Crim.P. 35(c) hearing that at the time Chae entered his guilty plea in 1984, his attorney explained to him that “if he pled guilty to second-degree sexual assault and agreed to be deported all of the [other] charges would be dismissed and he would not have to go to jail in the United States.” (Emphasis added.) Finally, the district court acknowledged the importance of the suspended sentencing recommendation as the basis of the plea agreement at the provi-dency hearing when it stated to Chae’s brother that if the court did not accept the sentence recommendations, “you [Byong Sok Chae] would have the right to withdraw this guilty plea and go to trial.”¹⁰

In sum, the sentence recommendation providing that Chae would not be imprisoned formed an integral part of the plea agreement and was the basis for Chae’s entry of a guilty plea in the instant case. Because this sentence recommendation provided for an illegal suspended sentence, the basis for the guilty plea amounted to an invalid, unfulfillable promise. See State v. Nemeth, 214 NJ.Super. 324, 519 A.2d 367, 368 (App.Div.1986) (“there can be no plea bargain to an illegal sentence”); cf. Brady, 397 U.S. at 755, 90 S.Ct. at 1472. Accordingly, applying the principles outlined in section IIIA of this opinion, we hold that Chae’s guilty plea must be vacated because the illegal sentence recommendation in the plea agreement invalidated Chae’s guilty plea.

The court of appeals held that Chae’s plea need not be vacated because he received the sentence for which he bargained. That is, Chae bargained for a prison term suspended upon certain conditions. Because Chae violated those conditions by failing to submit to deportation, the district court imposed the prison term. However, even if Chae did receive the “benefit” of the sentence he bargained for, the court of appeals’ reasoning is inapplicable in this case where the original sentence imposed was illegal. We have twice held that no sound public policy supports allowing defendants “a right to benefit from illegal sentences.” People v. District Court, 673 P.2d at 997; accord Flenniken, 749 P.2d at 398.¹¹ Similarly, no sound public policy supports allowing the parties to bargain for an illegal sentence, and we cannot uphold a plea bargain that has as its object an illegal sentence.¹²

IV.

We conclude that the sentence bargained for as part of Chae’s plea agreement was an illegal sentence, and therefore Chae’s guilty plea must be vacated. Accordingly, we affirm that part of the court of appeals’ judgment holding that Chae’s original sentence was illegal, and we reverse that part of the court of appeals’ judgment holding that Chae may not withdraw his guilty plea. Because the illegal sentencing provision prevents Chae from being bound by his original plea agreement, the district attorney also is not bound by the agreement. Thus, on remand the district attorney may reinstate the charges against Chae that were previously dismissed under the plea agreement.

The opinion of the court of appeals is affirmed in part and reversed in part, and this case is remanded to the court of appeals to be remanded to the district court with instructions to vacate Chae’s guilty plea and the judgment of conviction entered on that plea.

VOLLACK, J., concurs in part and dissents in part; ROVIRA and MULLARKEY, JJ., join in the concurrence and dissent.

1 . Chae’s older brother, Byong Sok Chae, was prosecuted as Chae's co-defendant on charges arising from the same incident. Byong Sok Chae entered into a plea agreement identical to Chae’s, but only Byong Choi Chae is a party to this present proceeding reviewing the denial of Chae’s Crim.P. 35(c) motion.

2 . In addition to the Korean interpreter, both the written Request to Plead Guilty and the Stipulation and Plea Agreement were translated into Korean. The petitioner then executed the Korean version of those documents.

3 . The actual sentence imposed differed from the sentence recommendations in the plea agreement only to the extent that the condition that Chae in fact be deported was not included in the sentence.

4 . The parties suggest that this was a sentence to probation. Nothing in the record indicates that the trial court intended to grant probation or intended that the sentence be anything other than it appears to be — the imposition of a sentence of imprisonment, suspended on stated conditions.

5 . Chae's motion was titled as a “motion to vacate plea.” However, the relief Chae requested in his brief in support of the motion was the withdrawal of his plea. Both the district court and the court of appeals referred to Chae’s motion as a motion to withdraw his guilty plea. Under Crim.P. 32(d) a motion to withdraw a guilty plea may be made only before sentence is imposed or imposition of sentence is suspended. Because sentence had been imposed when Chae filed his motion, he could not seek to withdraw his guilty plea under Crim.P. 32(d). Chae’s motion was correctly filed pursuant to Crim.P. 35(c), but the relief Chae clearly sought was vacation of the judgment of conviction entered on his plea and the subsequent withdrawal of his plea. In the interest of brevity, we will refer to Chae’s motion simply as a motion to vacate his guilty plea.

6 .Chae also alleged ineffective assistance of counsel, an issue not raised in this certiorari review.

7 . In 1988, the legislature adopted § 18-1-105(10), 8B C.R.S. (Supp. 1988), which provides:

When it shall appear to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be best served thereby, the court shall have the power to suspend the imposition or execution of sentence for such period and upon such terms and conditions as it may deem best.

That statute became effective July 1, 1988, and applies to acts committed on or after that date.

Ch. 116, secs. 5, 7, § 18-1-105(10), 1988 Colo. Sess.Laws 679, 681-82. Therefore, it is not applicable to the present case.

8 . Because we decide that the original sentence was illegal under § 16-11-101, we need not reach the issue raised by Chae of whether the sentence was illegal because the deportation conditions amounted to cruel and unusual punishment in contravention of the United States Constitution and the Colorado Constitution. See U.S. Const, amend. VIII; Colo. Const, art. II, § 20.

9 . Crim.P. 32(d) (formerly Crim.P. 32(e) when Wright was decided) provides in pertinent part:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended. "

If the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in Rule 11(f) of these Rules, he shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere.

Wright held that this rule “clearly contemplates that a defendant should be permitted to withdraw his guilty plea where the trial court chooses not to follow the prosecutor’s sentence recommendation, regardless of whether the prosecution has promised that the court will follow the recommendation.” 194 Colo, at 450, 573 P.2d at 553.

10 . Chae's brother and co-defendant, Byong Sok Chae, entered into a stipulation and plea agreement identical to the one signed by Byong Choi Chae. At the Crim.P. 11 hearing, the district court’s colloquy with Byong Sok Chae was specifically referenced during the court’s colloquy with Byong Choi Chae.

11 . See abo Agoney v. Feinberg 132 A.D.2d 829, 517 N.Y.S.2d 834, 836 (1987) (illegal sentence is not validated by a plea bargain).

12 . The court of appeals also held that Chae’s guilty plea need not be vacated because the trial court’s final disposition and sentence of eight years imprisonment corrected the original illegal sentence. People v. Chae, No. 85CA1506, slip op. at 5 (Colo.App. Oct. 29, 1987). This reasoning fails to consider that the illegal sentence recommendation in the plea agreement had the effect of invalidating Chae’s guilty plea. See section IIIA above. Thus, because Chae’s plea is invalid, a later sentence imposed within statutory guidelines cannot correct this defect. Because Chae’s plea was insufficient to support a judgment of guilt, the district court had no basis on which to impose any sentence upon Chae. See Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976) (involuntary plea cannot support a judgment of conviction).