People v. Crumb

Judge ROMAN

concurring in part and dissenting in part.

I respectfully dissent from part I.

As the majority notes, section 16-7-802(1), C.R.9$.2007, and Crim. P. 11(f)(4) provide that a "trial judge shall not participate in plea discussions." This rule serves three purposes (1) preventing the judge from shaping the plea bargain, (2) prohibiting the judge from persuading the defendant to accept a particular agreement, and (8) preserving judicial impartiality. See People v. Clark, 188 Colo. 201, 208, 515 P.2d 1242, 1242-48 (1973). Our supreme court has admonished that "participation by the trial judge in the plea bargaining process must be condemned." Id. at 204, 515 P.2d at 1248.

Rather than condemning what it acknowledges are violations of Crim. P. 11(f)(4), however, the majority concludes the violations were harmless. Specifically, despite conelud-ing that (1) the district court violated the proscription against judicial participation in a plea discussion when commenting that he would not be a "happy judge" if the People told him they did not have a deal, and that (2) the court should not have compared the sentencing consequences of a guilty plea and a conviction following a jury trial prior to the formal providency advisement conducted after the parties reached their agreement, the majority concludes that the errors were harmless. Because I reach the opposite conclusion and conclude that the errors were not harmless, I would vacate defendant's guilty plea and sentence and remand with directions that his case be reassigned to a different judge.

I do not believe that automatic reversal or vacatur is required, however. Rather, I would follow the two-part test articulated in United States v. Crowell, 60 F.3d 199 (5th Cir.1995), when, as here, defendant preserved the issue on appeal:

[When an appellant claims that a district court has failed to comply with Rule 11, we shall conduct a straightforward, two-question "harmless error" analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?

Id. at 204 (quoting United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1998)).

1. Did the Sentencing Court Violate Crim. P. 11(0(4)?

Prior to commenting that he would not be a "happy judge" if the parties failed to reach a deal, the district court also spoke directly to the pro se defendant while plea negotiations were on going, comparing the possible sentence consequences:

Let me just say this. This is more as a human being than as a judge. You've got a lot on your plate. I understand it, but you've also got to think about it ... you know, you're facing significant-you're facing the potential of significant time, [defendant], either way. I mean, we understand that, but if-if there's discretion that can be exercised, and I'm not promising you anything when I say this that discretion obviously exists in the context of a disposition. It will not exist if you are convicted and then habitual criminal charges kick in.

I agree with the majority that the district court violated Crim. P. 11({)(4). As noted, this conclusion does not end my inquiry.

2. Did the Crim. P. 11(f)(4) Violation Affect Defendant's Substantial Rights?

The federal "[clourts of [ajppeals all appear to hold that any 'discussion of the penal consequences of a guilty plea as compared to going to trial is inherently coercive, no matter how well-intentioned.'" United States v. Cano-Varela, 497 F.3d 1122; 1133 (10th Cir.2007) (quoting United States v. Johnson, 89 F.3d 778, 783 (1th Cir.1996)). The Tenth Cireuit Court of Appeals concluded, and I agree, that these type of errors "'almost inevitably seriously affect the fairness and integrity of judicial proceedings' and affect substantial rights." Id. (quoting United States v. Bradley, 455 F.3d 453, 468 (4th Cir.2006)). Thus, I believe it would be a rare case that survives harmless error analysis when the trial court participates in plea discussions.

This is not such a case. The majority concludes that the "happy judge" comment is harmless because it occurred after the parties announced they had reached an agreement. However, prior to that comment the trial court had informed defendant that it had sentencing discretion in the context of a disposition but not if he went to trial and was convicted of habitual criminal charges. Reviewing the record as a whole, I conclude that the trial court improperly suggested or encouraged defendant to take a plea bargain by suggesting the possibility of discretion in the sentence if he took a plea bargain, but not if he went to trial and was convicted. That the trial court couched defendant's options as a non-promise does not, in my view, make the suggestion harmless, given the unequal position of a trial judge in the plea bargaining, and later sentencing, process. Accordingly, I am left with grave doubt as to the fairness of the proceeding. See Cano-Varela, 497 F.3d at 1183 (any "discussion of the penal consequences of a guilty plea as compared to going to trial is inherently coercive, no matter how well intentioned").

This case differs, moreover, from the other two court of appeals decisions cited by the majority and is closer to the supreme court's Clark decision. In People v. Vengor, 121 P.3d 260, 268-64 (Colo.App.2005), the division concluded that the "trial court did not commit itself to a sentencing position before the agreement was entered," but merely made "observations regarding the evolving legal posture of the case, and ... inquiries as to whether the parties still wished to consummate their agreement." Similarly, in People v. Roy, 109 P.3d 998 (Colo.App.2004), the division observed that the trial court initially agreed with a plea agreement and later refused to accept its terms. In contrast, the trial court's comments here though not as flagrant, more closely resemble the type of improper judicial participation condemned by the supreme court in Clark, 183 Colo. at 204, 515 P.2d at 1248 (trial court forced defendant to plead guilty to a lesser offense in exchange for a relatively short sentence or suffer a life sentence if convicted).

Therefore, I conclude that no matter how well intentioned, and I do believe it was well intentioned, the district court's Crim. P. 11(f)(4) violation affected defendant's substantial rights, and thus was not harmless. See Cano-Varela, 497 F.8d at 1134 (Rule 11 "contains no avuneular-judge exception").

Accordingly, I would vacate the plea and sentence and remand the case for reassignment to another judge. See Cano-Varelo, 497 F.3d at 1184 (where defendant accepts a guilty plea following trial judge's improper participation and then attempts to withdraw the plea prior to trial, appropriate remedy is to vacate plea and reassign case to another judge); cf. Clark, 188 Colo. at 204, 515 P.2d at 1248 (case remanded for resentencing where, despite trial court's improper involvement in plea negotiations, defendant received a fair trial).