Kazadi v. People , 291 P.3d 16 ( 2012 )

Justice HOBBS

delivered the Opinion of the Court.

{1 We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Kazadi, 284 P.3d 70 (Colo.App.2011).¹ In this case we must determine whether a defendant who has pleaded guilty in return for a deferred judgment and sentence may seek postconviction review of his felony plea under Crim. P. 385(c). We agree with the Court of Appeals that he may not. Nevertheless, he can seek to withdraw the guilty plea pursuant to Crim. P. 32(d).

12 We hold that the deferred judgment statute, section 18-1.83-102, CRS. (2012), read in conjunction with Crim. P. 85(c), precludes Kazadi from challenging his felony plea under Crim. P. 35(c) while his deferred judgment and sentence are still in effect. However, he may move to withdraw his guilty plea under Crim. P. 32(d). This rule allows a defendant to move for withdrawal of a guilty plea before sentence is imposed or imposition of sentence is suspended. As grounds for such a motion, a defendant may raise ineffective assistance of counsel.

1.

T3 The prosecution charged Yanick Kaza-di, a legal permanent resident born in the Congo who entered the United States in 2008 at age thirteen, of possession with intent to distribute marijuana, a class four felony, in violation of former section 18-18-406(8)(b), C.R.S. (2008) (repealed 2010), and possession of not more than one ounce of marijuana, a class two petty offense under section 18-18-406(1), C.R.S. (2012). The police arrested Kazadi in November 2008 while he was riding as a passenger in a speeding car. After stopping the car, the police officer identified the vehicle's license plates as stolen, and pulled all four passengers out of the car. When a bullet fell out of the driver's lap when exiting the car, officers handcuffed all passengers and conducted a routine search, finding three guns, two bullet magazines, numerous baggies of marijuana, two baggies of ecstasy pills, and over $400 in cash.

T4 Kazadi pleaded guilty to possession with intent to distribute marijuana, a class four felony, and possession of a schedule V controlled substance (codeine), a class one misdemeanor. In a written plea agreement, Kazadi and the prosecution stipulated to a deferred judgment and sentence for the felony count and a probationary sentence for the misdemeanor. The Stipulation For Deferred Judgment And Sentence the parties entered into recites, in part:

The District Attorney further agrees that if the Defendant satisfactorily complies with the conditions upon which the entry of judgment of conviction is deferred and the imposition of sentence is deferred and satisfactory compliance by the Defendant with the terms of probation is shown, then upon the expiration of TWO YEARS from the entry of the Defendant's guilty plea, the District Attorney will consent to the entry by the Court of an order allowing the Defendant to withdraw his previously entered plea of guilty; and, if the Court so allows the withdrawal of the guilty plea, the District Attorney will thereupon move for dismissal with prejudice of the charge to which entry of judgment of conviction was deferred in the case in which this stipulation is filed.

(Emphasis added).

15 The district court conducted a provi-dency hearing and accepted Kazadi's guilty pleas, ordering a two-year deferred judgment and sentence for the felony count and two years of probation for the misdemeanor.

6 Kazadi signed a Crim. P. 11 guilty plea advisement that included a clause about possible immigration removal consequences:

If I am not a citizen of the United States, this guilty plea may cause removal (formerly "deportation"), exclusion for admission to the United States or denial of naturalization. I further have been advised that for certain felonies, federal statutes could require removal and permanent exclusion. I have conferred with counsel regarding this and understand that I have a right to confer with immigration counsel. I understand that this court has no authority regarding immigration issues. No promises or representations have been made to me by this Court regarding immigration consequences other than the plain statements made in the paragraph.

T7 In February 2009, Immigrations and Customs Enforcement placed a detainer on Kazadi following a later arrest by the Aurora Police Department.² Immigration and En-foreement Ageney officials took Kazadi into eustody on April 1, 2009, for removal purposes.³

T8 Kazadi subsequently filed a Crim. P. 35(c) motion in the district court challenging his guilty pleas based on constitutionally ineffective assistance of counsel. Kazadi argued that counsel did not inform him of the possible removal consequences of his plea, and, but for the ineffective assistance, he would not have pleaded guilty. The district court denied Kazadi's Crim. P. 85(c) motion without a hearing. It ruled that, by signing the Crim. P. 11 advisement, Kazadi was aware of the possible immigration penalties when he entered his plea and was not prejudiced by counsel's lack of advisement.

T9 On appeal, with regard to Kazadi's felony conviction, the court of appeals determined that a deferred judgment is not a "judgment of conviction" reviewable under Crim. P. 35(c)⁴ We agree and affirm the judgment of the court of appeals. Both parties argued to us in their briefs and oral arguments that Kazadi should be able to pursue a Crim. P. 32(d) motion to withdraw his felony guilty plea if we determine that relief under Crim. P. 35(c) is inapplicable. We conclude that Kazadi may move to withdraw his guilty under Crim. P. 82(d).

II.

¶10 We hold that the deferred judgment statute, section 18-1.83-102, read in conjunction with Crim. P. 85(c), precludes Kazadi from challenging his felony plea under Crim. P. 85(c) while his deferred judgment and sentence are still in effect,. However, he may move to withdraw his guilty plea under Crim. P. 32d). This rule allows a defendant to move for withdrawal of a guilty plea before sentence is imposed or imposition of sentence is suspended. As grounds for such a motion, a defendant may raise ineffective assistance of counsel.

A.

Standard of Review

111 Interpretation of a statute is a question of law, which we review de novo. Robles v. People, 811 P.2d 804, 806 (Colo.1991). Our fundamental responsibility in construing a statute is to ascertain and give effect to the purpose and intent of the General Assembly in enacting it. Alvarado v. People, 132 P.3d 1205, 1207 (Colo.2006). In construing a statute, we strive to give effect to the intent of the legislature and adopt the statutory construction that best carries out the provisions and purposes of the act. Thomas v. F.D.I.C., 255 P.3d 1073, 1077 (Colo.2011); Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005). We first look to the language of the statute to determine the legislature's intent. Thomas, 255 P.3d at 1077. As with any potential conflict between legislative provisions, we endeavor to give effect to the language and intent of both if possible. State Dep't of Labor & Emp't v. Esser, 30 P.3d 189, 194 (Colo.2001). Under the Colorado Constitution, we have authority to promulgate and interpret the Colorado Rules of Criminal Procedure. Colo. Const. art. VI, § 21. To ascertain the appropriate construction of a rule of eriminal procedure, we employ the same interpretive rules applicable to statutory construction. People v. Angel, 2012 CO 34, ¶ 17, 277 P.3d 231; Peterson v. People, 113 P.3d 706, 708 (Colo.2005).

B.

Applicable Law

1. Deferred Judgment Statute, Section 18-1.3-102

1 12 Colorado's deferred judgment statute, section 18-1.3-102, provides a unique alternative to the typical eriminal case. It authorizes a trial court to defer judgment and sentencing when accepting a guilty plea and continue the case for a period up to four years from the date of the plea. § 18-1.3-102(1)(a); People v. Widhalm, 642 P.2d 498, 500 (Colo.1982). The statute provides, in part, as follows:

In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty ....

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Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. Such stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon such guilty plea. ...

§§ 18-1.83-102(1)(a), (2) (emphasis added). As a condition of continuing the case, the trial court is empowered to implement probation-like supervision conditions that the defendant must adhere to. § 18-1.3-102(2); see People v. Manzanares, 85 P.3d 604, 607 (Colo.App.2003) (finding that "[a] deferred judgment is akin to a sentence of probation"). If the defendant completes the term of the deferred sentence without violating a condition, his guilty plea is withdrawn and his case must be dismissed with prejudice. § 18-1.3-102(2).

113 If the defendant violates any of the stipulated conditions, however, the court has authority to revoke the deferral and enter judgment and sentence upon his guilty plea. Id. A deferred sentence is a unique dispositional alternative to the traditional plea of guilty. Widhalm, 642 P.2d at 500. It is a privilege, whereby the defendant is the primary beneficiary of a process that may result in the dismissal of the charges against him. Manzanares, 85 P.3d at 607.

2. Motion for Withdrawal of Guilty Plea Available Only Before Sentence Is Imposed or Imposition of Sentence Is Suspended, Crim. P. 32(d)

114 A defendant may seek to withdraw a plea of guilty only before sentence is imposed or the imposition of a sentence is suspended pursuant to Crim. P. 82(d). See Glaser v. People, 155 Colo. 504, 507, 395 P.2d 461, 462 (1964) (finding that is no ambiguity in the rule as adopted by this court. In plain language it says that a motion to withdraw a plea of guilty may be made only before sentence is imposed."). The rule provides, in part, as follows:

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.

Crim. P. 32(d). One does not have an absolute right to withdraw a plea of guilty. People v. Riley, 187 Colo. 262, 265, 529 P.2d 1312, 1313 (1975); Maes v. People, 155 Colo. 570, 574, 396 P.2d 457, 459 (1964). To warrant the withdrawal of a guilty plea, a defendant has the burden of establishing a "fair and just reason" for the withdrawal, People v. Chippewa, 751 P.2d 607, 609 (Colo.1988), and there must be a showing that justice will be subverted by denying the motion, Maes, 155 Colo. at 575, 396 P.2d at 459. Such a showing includes instances where a defendant was surprised or influenced into a plea of guilty to which the person had a defense; where a plea of guilty was entered by mistake or under a misconception of the nature of the charge; where such plea was entered through fear, fraud, or official misrepresentation; where it was made involuntarily; or where ineffective assistance of counsel occurred in the process. Chippewa, 751 P.2d at 609; People v. Pozo, 746 P.2d 523, 525-26 (Colo.1987); see also Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1478, 176 L.Ed.2d 284 (2010).

"15 The trial court has discretion to determine whether a defendant has established a fair and just reason for withdrawal, and we will not overturn denial of a motion to withdraw a guilty plea absent an abuse of that discretion. Crumb v. People, 230 P.3d 726, 730, 733 (Colo.2010) (finding that a court should consider a non-exclusive list of factors, including whether the prosecution would be prejudiced by the withdrawal of the guilty plea, whether the defendant promptly moved to withdraw the guilty plea, and whether the defendant has shown that justice will be subverted if the motion is denied); People v. Gutierrez, 622 P.2d 547, 559 (Colo.1981).

3. Crim. P. 35(c) Not Applicable to Review a Deferred Judgment

116 Crim. P. 85(c) allows a defendant to challenge a judgment of conviction. The rule expressly limits the filing of such a motion for relief to one who is aggrieved and claiming a right to be released or to have a judgment of conviction set aside. Crim. P. 35(c)(8). Although there is no constitutional right to postconviction review, defendants are entitled to file postconviction motions for relief in the trial court that imposed sentence, even if convictions were affirmed on appeal. Crim. P. 35(c)(@2); People v. Germany, 674 P.2d 345, 350 (Colo.1983). The rule provides, in part, as follows:

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 application for postconviction review upon the grounds hereinafter set forth. ...

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One who is aggrieved and claiming either a right to be released or to have a judgment of commiction set aside on one or more of the grounds enumerated in section (c)(2) of this Rule may file a motion in the court which imposed the sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights....

Crim. P. 85(c)(2), (8) (emphasis added).

117 To obtain postconviction review under Crim. P. 35(c), a defendant must allege that (1) the conviction was obtained or sentence imposed in violation of the state or federal constitution; (2) the statute he was convicted under is unconstitutional, or his actions were constitutionally protected; (8) the court did not have either subject matter or personal jurisdiction over the dispute; (4) there were material facts that the defendant or his attorney could not have known prior to the submission of the issues to the court or jury, and which would require vacation of the conviction or sentence in the interest of justice; or (5) any other grounds properly the basis for collateral attack upon a criminal judgment. Crim. P. 85(c)(2)(D)-(IID), (V)(VT). A court must hold an evidentiary hearing on a Crim. P. 35(c) motion unless the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief, White v. Dist. Ct., 766 P.2d 632, 634 (Colo.1988).

C.

Application to this Case

118 Kazadi argues that the term "convicted of a crime" contained in Crim. P. 85(c)(2) means that a person who has pleaded guilty in return for a deferred judgment and sentence may have the plea reviewed under the provisions of Crim. P. 85(c). He reasons that the guilty plea itself constitutes a "conviction." However, Crim. P. 35(c)(8) requires that the trial court must have sentenced the defendant and must have entered a "judgment of conviction" before a defendant can challenge the conviction: "One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside ... may file a motion in the court which imposed sentence." Kazadi's contention ignores the provisions of the deferred Judgment statute, section 18-1.3-102, and the stipulation in this case, both of which provide that he will not be sentenced and a judgment of conviction will not be entered while the stipulation is in effect. In People v. Carbajal, 198 P.3d 102, 105 (Colo.2008), we had the opportunity to comment on postconviction review of deferred judgments, stating that "a deferred judgment is not a final judgment, and thus may not be subject to either Crim. P. 35 review or direct appellate review until revoked." Accord In re K.W.S., 192 P.3d 579, 580-81 (Colo.App.2008); Manzanares, 85 P.3d at 611; People v. Anderson, 703 P.2d 650, 652 (Colo.App.1985). Here, as Kazadi concedes, there has not been an entry of judgment or sentence, only a continuation of the case. We determine that Carbojal is precedent for our ruling today.

119 Kazadi cannot collaterally attack his guilty plea pursuant to Crim. P. 85(c) because his prosecution has been continued. The stipulation Kazadi and the prosecution entered clearly supports this conclusion, stating the charges will be dismissed "if the Defendant satisfactorily complies with the conditions upon which the entry of judgment of conviction is deferred and the imposition of sentence is deferred ...." (Emphasis added). A deferred judgment is not a judgment of conviction or a final, appealable judgment. See Ellsworth v. People, 987 P.2d 264, 266 (Colo.1999) (holding that until a sentence is imposed, there can be no final judgment); Widhalm, 642 P.2d at 500 (holding that a deferred judgment "permits a defendant to plead guilty without the entry of a judgment of conviction").

120 In the alternative, given our holding that Crim. P. 35(c) does not apply to this case, Kazadi and the prosecution agree that Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty pleas involving deferred judgments. In Anderson, a division of the court of appeals held that it is not. 703 P.2d at 652. Both parties assert that Crim. P. 32(d) is available in a deferred judgment context, arguing that Anderson was wrongly decided in finding that "a deferred judgment is the equivalent of suspension of sentence," making a Crim. P. 32(d) motion untimely. Id. We agree. Kazadi may pursue a Crim. P. 82(d) motion to withdraw his guilty plea. The court of appeals panel erred in Anderson, and we overrule that decision. The plain language of Crim. P. 32(d) states: "[al 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." (Emphasis added). A deferred judgment is not the equivalent of a suspension of sentence because no sentence has been imposed or suspended. Rather, a deferred judgment is a continuance of the defendant's case in lieu of the imposition of sentence, where a sentence may be issued if the defendant fails to abide by prescribed conditions. Therefore, a deferred judgment fits within the seope of Crim. P. 82(d).

121 Kazadi faces mandatory removal by virtue of a guilty plea that he cannot challenge through a Crim. P. 35(c) motion. Under Crim. P. 32(d), Kazadi has the burden to establish a fair and just reason for withdrawal of his guilty plea. Ineffective assistance of counsel at the time a guilty plea is entered may constitute a fair and just reason to withdraw the plea prior to sentencing. See People v. Lopes, 12 P.3d 869 (Colo.2000); Riley, 187 Colo. at 265, 529 P.2d at 1313. In Kazadi's case, ineffective assistance of counsel would be a fair and just basis for withdrawal of his guilty plea pursuant to Crim. P. 82(d).

1 22 In conclusion, pursuant to section 18-1.3-102 and the stipulation between the parties in this case, the trial court has not sentenced Kazadi and no judgment of conviction has been entered against him. Therefore, he may seek to withdraw his guilty plea pursuant to Crim. P. 32(d), but he may not have his conviction reviewed under Crim. P. 35(c).⁵

III.

€23 Accordingly, we affirm the judgment of the court of appeals.

Chief Justice BENDER dissents.

1 . The issue for which we granted certiorari is:

Whether a criminal defendant has the right to apply for postconviction review of a deferred sentence pursuant to section 18-1-410, C.R.S. (2010), and Crim. P. 35(c).

2 . These charges were later released.

3 . Kazadi faces deportation under 8 U.S.C. §§ 1227(a)(2)(A) (iii) (alien convicted of aggravated felony is deportable), 1101(a)(43)(B) (defining "aggravated felony" to include illicit trafficking in a controlled substance), 1101(a)(48)(A) (defining "conviction" as a guilty plea, subjecting a defendant to presumptive mandatory deportation}.

4 . As to Kazadi's misdemeanor conviction, the court of appeals ruled that the district court erred in denying his motion for postconviction review, finding that he sufficiently alleged ineffective assistance of counsel that would support finding that he was entitled to a hearing under Crim. P. 35(c). There is no claim relating to his misdemeanor conviction presented to us, and the issue of whether Kazadi received ineffective assistance of counsel is similarly not before us.

5 . Kazadi argues, in the alternative, that Crim. P. 35(c) conflicts with and is preempted by the postconviction statute, section 18-1-410, C.R.S. (2012), by restricting relief under the rule to those aggrieved by entry of a "judgment of conviction." In this case, we need not explore the many uses of the word "conviction" in that statute or in our case law because section 18-1.3-102 plainly constitutes a particularized procedure for continuance of a case that is subject to dismissal, negating the guilty plea.