v. Hamm

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 20, 2019
2019COA90
No. 16CA1944, People v. Hamm — Crimes — Uniform
Controlled Substances Act of 2013; Sentencing — Amendatory
Statutes — Retroactive Application
A division of the court of appeals holds that the Uniform
Controlled Substances Act of 2013 does not apply retroactively and
the effective date language of the Act is unambiguous; a person
convicted of a crime who did not file a direct appeal may not seek a
postconviction remedy based on a “significant change in the law”;
and an attorney waives an argument by not presenting it to the
court after a hearing at which the court and the attorney
acknowledged that the argument was not properly before the court.
COLORADO COURT OF APPEALS 2019COA90
Court of Appeals No. 16CA1944
Arapahoe County District Court No. 11CR1851
Honorable F. Stephen Collins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Charles Marcus Hamm,
Defendant-Appellant.
ORDER AFFIRMED
Division IV
Opinion by JUDGE LIPINSKY
Román and J. Jones, JJ., concur
Announced June 20, 2019
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Charles Marcus Hamm, appeals the district court’s
denial of his request for an evidentiary hearing on his petition for
postconviction relief (the Petition). Hamm contends that his trial
counsel was ineffective by not advising him that the penalty
reductions enacted through the Uniform Controlled Substances Act
of 2013 (the Act) apply retroactively and, therefore, require a
reduction in his sentence. He also contends that the district court
erred in denying him an evidentiary hearing on his challenge to the
voluntariness of his stipulation (the Stipulation) to a thirty-year
prison sentence.
¶2 We hold that, under section 18-1-410(1)(f)(II), C.R.S. 2018,
and Crim. P. 35(c)(1), Hamm’s failure to file a direct appeal
precludes him from seeking postconviction review of his sentence
based on a “significant change in the law.” Further, we hold that
the trial court did not err in denying Hamm an evidentiary hearing
because the Act does not apply retroactively and thus cannot
reduce Hamm’s sentence.
1
I. Hamm’s Conviction and Postconviction Motions
¶3 Hamm was charged with one count of distribution of a
controlled substance (3.4 grams of cocaine) in September 2011 and
five habitual criminal counts based on his prior felony convictions.
A jury convicted him on the distribution count.
¶4 The district court continued the trial on the habitual counts
while the defense and the People negotiated an agreement on
Hamm’s sentence. In exchange for dismissal of the habitual
counts, Hamm stipulated to a sentence of thirty years in the
custody of the Department of Corrections and five years of parole to
avoid a mandatory sentence of sixty-four years.
¶5 Hamm filed a pro se motion in the district court to extend the
deadline for an appeal. The court denied the motion because he
had filed it in the wrong court. Hamm did not directly appeal his
conviction or his sentence.
¶6 Hamm filed the Petition more than one year later. For
purposes of this appeal, he argued in the Petition that his trial
counsel had been ineffective by failing to advise him that the
General Assembly had recently passed the Act and that the penalty
2
reductions reflected in the Act applied retroactively. Hamm argued
that, if the Act had been applied to him, he would have faced a
maximum sentence of sixteen years. He also argued that he should
be permitted to withdraw the Stipulation because he had entered
into it without knowledge of the Act and, further, had agreed to the
thirty-year sentence equivocally. He asked the district court to
conduct an evidentiary hearing on the Petition.
¶7 The district court denied the Petition after determining that
the Act did not apply retroactively. The court held that Hamm’s
ineffective assistance claim failed because his trial counsel would
have been misstating the law if he had advised Hamm that the Act
applied retroactively. The court further found that the Stipulation
was enforceable because Hamm had entered into it freely,
knowingly, and voluntarily. In light of its findings, the district court
declined to conduct an evidentiary hearing on the Petition.
II. Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) Bar Hamm’s
Ineffective Assistance Claim
¶8 We resolve Hamm’s ineffective assistance of counsel claim on
grounds not raised in the briefs because, as a matter of law, that
claim is not properly before us. See Moody v. People, 159 P.3d 611,
3
615 (Colo. 2007) (“[A]ppellate courts have the discretion to affirm
decisions . . . on any basis for which there is a record sufficient to
permit conclusions of law, even though they may be on grounds
other than those relied upon by the trial court.”).
A. The Governing Statute and Rule
¶9 Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) bar Hamm’s
ineffective assistance claim because Hamm did not file a direct
appeal of his conviction and sentence. Thus, the district court
should not have considered the claim.
¶ 10 Section 18-1-410 sets forth the circumstances under which a
person convicted of a crime may seek postconviction review of his
sentence. Subsection (1) of the statute allows a defendant who did
not file an appeal to move for postconviction review:
“Notwithstanding the fact that no review of a conviction of crime
was sought by appeal within the time prescribed therefor, or that a
judgment of conviction was affirmed upon appeal, every person
convicted of a crime is entitled as a matter of right to make
applications for postconviction review.” § 18-1-410(1).
4
¶ 11 Subsection (1)(f) of the statute applies to postconviction
motions premised on a “significant change in the law.”
§ 18-1-410(1)(f). Subsection (1)(f)(I) authorizes postconviction
motions on the grounds that “there has been significant change in
the law, applied to the applicant’s conviction or sentence, allowing
in the interests of justice retroactive application of the changed legal
standard.” § 18-1-410(1)(f)(I).
¶ 12 The next subsection of the statute imposes conditions on
postconviction motions based on a “significant change in the law.”
A person convicted of a crime is barred from arguing a “significant
change in the law” in a postconviction motion if he “has not sought
appeal of a conviction within the time prescribed therefor or if a
judgment of conviction has been affirmed upon appeal.”
§ 18-1-410(1)(f)(II).
¶ 13 Crim. P. 35(c)(1) contains similar language:
If, prior to filing for relief pursuant to this
paragraph (1), a person has sought appeal of a
conviction within the time prescribed therefor
and if judgment on that conviction has not then
been affirmed upon appeal, that person may
file an application for postconviction review
upon the ground that there has been a
significant change in the law, applied to the
5
applicant’s conviction or sentence, allowing in
the interests of justice retroactive application
of the changed legal standard.
Crim. P. 35(c)(1) (emphasis added).
¶ 14 Therefore, a person may not seek postconviction relief based
on a “significant change in the law” unless (a) he has filed a timely
appeal and (b) an appellate court has not affirmed his judgment of
conviction.
B. Hamm Did Not File an Appeal and, Therefore, May Not Seek
Postconviction Relief Based on a “Significant Change in the
Law”
¶ 15 Hamm was convicted on the distribution count on January 31,
2013, and stipulated to the thirty-year sentence on September 30,
2013. Hamm filed his motion to extend the deadline for an appeal
in the district court on October 21, 2013. The district court denied
the motion, however, because Hamm had filed it in the wrong court.
See C.A.R. 4(b)(1) (“[T]he appellate court may . . . extend the time for
filing a notice of appeal . . . .”). The record contains no indication
that Hamm ever filed in this court a motion to extend the time to
appeal. In any event, Hamm never filed a direct appeal of his
conviction or sentence, which became final when he missed the
deadline to file a notice of appeal.
6
¶ 16 Hamm filed the Petition two years later, on October 11, 2015.
Because he did not file an appeal, he did not satisfy the conditions
precedent for seeking postconviction relief based on a “significant
change in the law,” regardless of whether the Act applies
retroactively. § 18-1-410(1)(f)(II); Crim. P. 35(c)(1); see People v.
Stellabotte, 2018 CO 66, ¶ 33, 421 P.3d 174, 181 (“Subsection
18-1-410(1)(f)(I) provides for retroactive application of significant
change in the law to a defendant’s conviction or sentence but,
under subsection (II), during only direct appeal, before the
conviction is final. Thus, it applies only to criminal prosecutions
and during only a narrow procedural timeframe.”); Glazier v. People,
193 Colo. 268, 269, 565 P.2d 935, 936 (1977) (“As we have
repeatedly held, a defendant is entitled to the benefits of
amendatory legislation when relief is sought before finality has
attached to the judgment of conviction.”); People v. Thomas, 185
Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that where the
defendant sought postconviction relief during the pendency of his
appeal, “amendatory legislation mitigating the penalties for crimes
7
should be applied to any case which has not received final
judgment”).
¶ 17 For this reason, we affirm the district court’s denial of Hamm’s
request for a hearing on his ineffective assistance of counsel claim.
III. The District Court Did Not Err in Denying Hamm’s Request for
an Evidentiary Hearing on His Challenge to the Stipulation
A. Hamm May Appeal the District Court’s Ruling on the
Enforceability of the Stipulation
¶ 18 The People argue that Hamm missed the deadline for
appealing the district court’s denial of his request for an evidentiary
hearing on his challenge to the Stipulation. We disagree and
therefore consider the issue on the merits.
¶ 19 Hamm presented through the Petition all of his arguments
relevant to this appeal. The district court denied Hamm’s request
for an evidentiary hearing on the voluntariness of the Stipulation on
November 25, 2015, ten months before the district court
adjudicated Hamm’s ineffective assistance of counsel claim. The
People contend that Hamm was required to appeal the ruling on his
claim concerning the Stipulation within forty-nine days of November
25, 2015, which he did not do. Instead, Hamm filed a notice of
appeal of the district court’s denial of his request for an evidentiary
8
hearing on each argument presented in the Petition within forty-
nine days of the date on which the district court resolved the last of
those arguments.
¶ 20 Neither party has brought to our attention, and we have not
found, any Colorado case addressing the deadline for appealing
rulings, made on different dates, that resolve discrete arguments
presented through a single postconviction motion. Our supreme
court has expressed a preference for avoiding piecemeal appellate
proceedings, at least in the context of reviewing the disclosure of
potentially exculpatory evidence in postconviction proceedings. See
People v. Owens, 2014 CO 58, ¶ 18, 330 P.3d 1027, 1032. And, as
a general rule, “an entire case must be resolved by a final judgment
before an appeal is brought.” Grear v. Mulvihill, 207 P.3d 918, 921
(Colo. App. 2009); cf. C.R.C.P. 54(b).
¶ 21 In light of the courts’ desire to avoid piecemeal appeals, we
conclude that Hamm timely appealed the district court’s denial of
his request for an evidentiary hearing on his challenge to the
Stipulation.
9
B. The Standard of Review in Appeals of Denials of Evidentiary
Hearings on Postconviction Motions
¶ 22 A district court must grant an evidentiary hearing on a Crim.
P. 35(c) motion unless the motion, files, and record establish that
the allegations in the motion are without merit and do not warrant
postconviction relief. Crim. P. 35(c)(3)(IV); see White v. Denver Dist.
Court, 766 P.2d 632, 634-35 (Colo. 1988).
¶ 23 We review de novo a district court’s conclusions of law. People
v. Hardin, 2016 COA 175, ¶ 28, 405 P.3d 379, 385. “We will not
overturn the trial court’s findings of fact if there is adequate
support for them in the record; however, if the findings of fact are
clearly erroneous and lack support in the record, we must set them
aside.” People v. Hufnagel, 745 P.2d 242, 244 (Colo. 1987).
Further, we will affirm a district court’s denial of a Rule 35 motion
on any ground supported by the record, even if the district court did
not consider or contemplate that ground. People v. Scott, 116 P.3d
1231, 1233 (Colo. App. 2004).
C. Hamm’s Postconviction Challenge to the Stipulation
¶ 24 Hamm contends that the Stipulation was involuntary, and
should be set aside, because he was not aware that the sentence
10
reductions reflected in the Act applied to him and because he
accepted the Stipulation equivocally. We address these issues
separately.
1. The Act Does Not Apply Retroactively
¶ 25 In interpreting a statute, we look to its plain meaning to
determine the legislature’s intent. People v. Manzo, 144 P.3d 551,
554 (Colo. 2006). If the statutory language is clear, we construe the
statute according to its plain and ordinary meaning. Specialty Rest.
Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010).
¶ 26 Thus, in considering whether a statute applies retroactively,
we determine the intent of the General Assembly first by analyzing
the statutory language. People v. Russell, 2014 COA 21M, ¶ 8, 396
P.3d 71, 73, aff’d, 2017 CO 3, 387 P.3d 750. Where the statutory
language is clear and unambiguous, we apply the provision as
written; no further statutory construction is necessary. Specialty
Rest. Corp., 231 P.3d at 397.
¶ 27 Statutes that, by their terms, are effective “on or after” a
specified date do not apply retroactively. Riley v. People, 828 P.2d
254, 258-59 (Colo. 1992); People v. McCoy, 764 P.2d 1171, 1174
11
(Colo. 1988); see Stellabotte, ¶ 29, 421 P.3d at 180 (stating that the
rule that criminal defendants may benefit from amendatory
legislation that took effect before their convictions became final on
direct appeal does not apply to statutes that, by their terms,
concern offenses committed “on or after” a certain date).
¶ 28 Section 18-1.3-401.5, C.R.S. 2018, could not be clearer: the
sentencing ranges adopted through the Act “only apply to a
conviction for a drug felony offense . . . committed on or after
October 1, 2013.” § 18-1.3-401.5(1); see People v. McRae, 2016
COA 117, ¶ 17, ___ P.3d ___, ___ (“[R]etroactive application of [the
Act] would have been unlawful . . . .”) (cert. granted July 3, 2017).
We cannot apply the sentencing ranges in the Act retroactively
because the General Assembly tells us they do not apply
retroactively.
¶ 29 But this does not conclude our statutory analysis. Hamm
contends that the “on or after” language of section 18-1.3-401.5 is
ambiguous because it conflicts with the references to July 1, 1992,
in section 18-18-602, C.R.S. 2018.
12
¶ 30 As Hamm notes, section 18-18-602 states, in relevant part,
that “penalties that were incurred, and proceedings that were begun
prior to July 1, 1992, are not affected by the enactment of [the
Act].” § 18-18-602. Hamm reasons that this language means that
penalties incurred and proceedings begun on or after July 1, 1992,
are affected by the enactment of the Act. Under this logic, the Act
would apply to Hamm’s sentence.
¶ 31 The Act, however, made but one change to section 18-18-602,
which the General Assembly had enacted as part of the Controlled
Substances Act of 1992: it replaced a reference to the “Uniform
Controlled Substances Act of 1992” with a reference to the “Uniform
Controlled Substances Act of 2013.” See Ch. 333, sec. 60, § 18-18-
602, 2013 Colo. Sess. Laws 1940. In the Act, the General Assembly
replaced every reference to the Uniform Controlled Substances Act
of 1992 in the Colorado Revised Statutes with a reference to the
Act. See, e.g., Ch. 333, sec. 6, § 18-18-101, 2013 Colo. Sess. Laws
1907. Whether by design or not, the drafters of the Act did not,
however, also replace the references to “July 1, 1992” in section 18-
18-602 with references to “October 1, 2013.”
13
¶ 32 We disagree with Hamm that People v. Summers, 208 P.3d 251
(Colo. 2009), compels the conclusion that the effective date of the
Act is ambiguous. Summers concerned interpretation of a statute
containing contradictory retroactivity language. The substantive
language of the statute stated that it applied retroactively, while the
effective date clause said the statute applied to crimes committed
on or after the effective date. Id. at 254. The legislative history and
other sources did not resolve the conflict. Id. at 254-56. The
supreme court applied the rule of lenity, under which “ambiguity in
the meaning of a criminal statute must be interpreted in favor of the
defendant.” Id. at 258 (quoting People v. Thoro Prods. Co., 70 P.3d
1188, 1198 (Colo. 2003)). Critically, unlike here, in Summers, the
General Assembly had adopted the conflicting provisions through
the same legislation. Id. at 253-54.
¶ 33 A close parsing of section 18-18-602 is unnecessary. Even if
sections 18-1.3-401.5 and 18-18-602 irreconcilably conflict, the
General Assembly’s 2013 language supersedes any conflicting
language dating back to the 1992 version of the legislation. See
People v. Heitzman, 852 P.2d 443, 446 (Colo. 1993) (stating that,
14
pursuant to ordinary principles of statutory construction, a later-
adopted statute prevails over an earlier one (citing M.S. v. People,
812 P.2d 632, 637 (Colo. 1991))).
¶ 34 Further, even if the General Assembly had, through the Act,
inserted the references to July 1, 1992, in section 18-18-602, the
General Assembly’s use of specific “on or after” language in
18-1.3-401.5 supersedes the more general language of section
18-18-602. See § 2-4-205, C.R.S. 2018 (providing that courts must
give effect to the more “special or local” statute in the event of a
conflict between such a statute and a more general statute); People
v. Smith, 932 P.2d 830, 832 (Colo. App. 1996) (“In the event
statutes conflict, effect shall be given to both, if possible. If not, the
more specific provision shall prevail as an exception to the general
rule, absent a clear legislative intent to revoke the prior specific
provision.”).
¶ 35 Thus, the Act contains a single effective date, which specifies
that the amended sentencing ranges in the Act apply only to
offenses committed “on or after October 1, 2013.” § 18-1.3-401.5.
This language compels the conclusion that the sentencing ranges in
15
section 18-1.3-401.5 are prospective only. See Stellabotte, ¶ 29,
421 P.3d at 180. “[C]ourts cannot rewrite statutory or
administrative rules under the guise of interpretation.” Winter v.
Indus. Claim Appeals Office, 2013 COA 126, ¶ 27, 321 P.3d 609,
614.
¶ 36 We further note that the Act specifically provides that section
18-1.3-401.5 applies to convictions for drug felony offenses
committed on or after October 1, 2013. The jury found Hamm guilty
of distributing cocaine in September 2011 — more than two years
before the effective date of the Act.
¶ 37 For these reasons, we conclude that the Act does not apply
retroactively. The sentencing ranges in the Act cannot reduce
Hamm’s sentence because the offense for which the jury convicted
Hamm occurred more than two years before the effective date of the
Act.
2. Hamm Did Not Preserve His Argument that the Stipulation
Was Not Voluntary Because He Had Not Known He Could Seek
a Proportionality Review Based on the Act
¶ 38 Hamm also contends that the Stipulation was not voluntary
because he was unaware at the time that he could seek a
16
proportionality review of his sentence based on adoption of the Act,
even if the Act does not apply retroactively. See People v. Anaya,
894 P.2d 28, 32 (Colo. App. 1994) (“[W]hen the General Assembly
subsequently amends a criminal sentencing statute, even though
the statute is to be applied prospectively, the trial court may
properly consider it when determining whether a defendant’s
sentence was grossly disproportionate.”).
¶ 39 We agree with the People that we cannot consider this issue
because Hamm did not properly raise it in the district court. People
v. Wolfe, 213 P.3d 1035, 1037 (Colo. App. 2009).
¶ 40 At the hearing on the Petition, the district court inquired
whether a ruling on the retroactivity issue would resolve Hamm’s
claim of ineffective assistance of counsel. The defense responded
that the court had “to initially determine whether [Hamm] could
have benefitted from this enactment in any way.” Defense counsel
proceeded to argue that Hamm’s trial counsel had been ineffective
by not advising Hamm that the Act applied retroactively.
17
¶ 41 After finding that the Act had no retroactive effect, the court
said, and Hamm’s counsel agreed, that the defense had not
properly presented a proportionality argument:
[THE COURT:] Now, in the recent filing by
defense, they brought up the issue of
proportionality. I think the McRae decision
does make it clear that if defendant wishes to
challenge proportionality, he has a right to do
so. . . .
At this point, we don’t have a proportionality
review motion before the Court. And I think
given how recent the McRae case is, it’s only
fair to give defense an opportunity to review
that case.
If they believe they have a viable claim and
they wish to pursue such a motion, they are
free to file one. You know, obviously McRae is
only one thing to consider. But my ruling on
this motion should not be interpreted as
predetermining one way or the other
proportionality. I think it’s separate and
distinct and is still out there for defense to
consider.
Any question from defense on my order?
MR. MARTIN: No, Your Honor.
....
THE COURT: Anything else from defense?
MR. MARTIN: Judge, as to the proportionality
motion, I can tell you that is something that we
do intend to pursue . . . .
18
....
THE COURT: And I think that’s something
that counsel have to look at. They have to
research and we can address it. I’m not . . .
making any ruling any which way on any of
that. Because I think that’s why I keep
referring back to there are any number of
things that need to be considered. And I think
you need to look at the law and see what you
think your viable options are.
(Emphases added.)
¶ 42 The quoted language makes clear that the defense conceded
that Hamm had not presented a “proportionality review motion” and
that the proportionality issue was “separate and distinct” from
Hamm’s argument regarding the effective date of the Act. The
defense never filed the “proportionality review motion” discussed at
the hearing, however, even though Hamm’s counsel had actual
knowledge that the issue had not been properly raised in the
district court. We cannot consider Hamm’s proportionality
argument because he did not ask the district court to conduct a
proportionality review of his sentence. Cf. People v. Gaskins, 825
P.2d 30, 38-39 (Colo. 1992) (holding that an appellate court may
conduct an initial proportionality review where the district court
had declined to consider the defendant’s challenge to his sentence).
19
¶ 43 Because Hamm did not properly raise his proportionality
argument in the district court, “we have nothing to review.” People
v. Tee, 2018 COA 84, ¶ 42, ___ P.3d ___, ___. Therefore, we decline
to address Hamm’s argument that the Stipulation was not
voluntary because his trial counsel failed to advise him that he
could rely on the Act in making a proportionality challenge to his
sentence.
3. Hamm Entered Into the Stipulation Voluntarily
¶ 44 Hamm further contends that his equivocal answers at the
Crim. P. 11 hearing demonstrate that he did not enter into the
Stipulation voluntarily. Hamm’s Crim. P. 11 colloquy with the court
included the following questions and answers:
THE COURT: Do you believe you have a good
understanding of what’s taking place with this
stipulation?
THE DEFENDANT: No, but -- yeah.
THE COURT: Do you understand that what it
is basically an agreement that I’m sentencing
you to 30 years in the Department of
Corrections, followed by a mandatory five-year
period of parole?
THE DEFENDANT: Yeah.
20
THE COURT: And have you entered into this
stipulation voluntarily?
THE DEFENDANT: (No response.)
THE COURT: Yes?
THE DEFENDANT: Yeah.
THE COURT: Okay. Has anybody threatened
you or forced you or made any promises to
you, other than anything in the stipulation, in
order to convince you to agree to this?
THE DEFENDANT: Yeah, the D.A., but --
yeah.
THE COURT: By that do you mean that
otherwise the habitual charges go forward?
THE DEFENDANT: Yeah, but -- I understand.
THE COURT: Okay. But I need to make sure
that you’re doing this voluntarily, recognizing
it’s a difficult deal?
THE DEFENDANT: I have to take it, yes.
¶ 45 As our supreme court explained, determining whether a plea
“represents the accused’s free and reasoned decision” requires
assessment of “the defendant’s state of mind when he enter[ed] a
guilty plea.” People v. Kyler, 991 P.2d 810, 817 (Colo. 1999). A plea
is not voluntary if “the accused’s will was overborne in making the
decision to plead guilty.” Id.
21
¶ 46 The cases on which Hamm relies underscore the voluntariness
of the Stipulation, however. See Boykin v. Alabama, 395 U.S. 238,
239, 243-44 (1969) (allowing the defendant to withdraw plea to five
capital crimes where the trial judge had asked no questions
concerning the plea and the defendant had not addressed the
court); United States v. Truglio, 493 F.2d 574, 579-80 (4th Cir.
1974) (allowing the defendant to withdraw plea where defense
counsel’s simultaneous representation of five codefendants with
divergent interests resulted in ineffective assistance of counsel);
Sanchez-Martinez v. People, 250 P.3d 1248, 1258-59 (Colo. 2011)
(reversing denial of motion for postjudgment relief where illiterate
defendant had been told to sign advisal of rights form even though
it had not been read to him, he had difficulty hearing the
interpreter, and he “had very little if any conception of what was
happening”); cf. Kyler, 991 P.2d at 818-19 (holding that the
defendant voluntarily pled guilty despite being shackled as a
consequence of his prior escape attempts).
¶ 47 In contrast, the record reflects that
22
• the trial court engaged in a Crim. P. 11 colloquy with
Hamm;
• Hamm addressed the court;
• Hamm’s counsel represented only one defendant in the
case;
• he was not shackled during the hearing on the
Stipulation; and
• Hamm reads and speaks English.
¶ 48 Hamm faced the same type of decision all persons accused of
crimes face when considering a plea: accept the stipulated sentence
(here, thirty years imprisonment and five years of parole) or face the
risk of conviction on the charges, which, for Hamm, would have
resulted in a mandatory sixty-four-year sentence under the
habitual criminal statute. Nothing in the record suggests that
Hamm’s “will was overborne” when he entered into the Stipulation.
Kyler, 991 P.2d at 817.
¶ 49 For these reasons, we conclude that the Petition, files, and
record establish that Hamm’s argument for withdrawal of the
Stipulation does not warrant postconviction relief. Therefore, the
23
district court did not err in denying Hamm’s request for an
evidentiary hearing on the enforceability of the Stipulation.
IV. Conclusion
¶ 50 The district court’s order is affirmed.
JUDGE ROMÁN and JUDGE J. JONES concur.
24