December 6, 2010

Colorado Court of Appeals decision 11-24-10

People v. Allen         Withdrawl of Plea – Misapprehension of Sentence – New Evidence – Possible Previously Undisclosed Defense / Sexually Violent Predator
Synopsis: Factually, pretty simple - Mr. Allen’s DNA matches the sperm found on a female neighbor who said some masked stranger broke into her home, and raped her for hours. Procedurally, also very simple - stellar private counsel works out deal for Mr. Allen to plead guilty to first-degree sexual assault, crime
of violence, second degree burglary, and second degree assault. Most astoundingly, Counsel and got Mr. Allen to stipulate … STIPULATE!!! to this sentence: 10 – 25 years in prison, and an indeterminate sentence up to the rest of Mr. Allen’s natural life. Again, Counsel stipulated to that deal. After plea, but prior to sentencing, Mr. Allen got wise, and fired the private lawyer. The Court appoints the PD’s Office. Mike McHenry, err… Honorable Mike McHenry, former PD in the Springs Office and all-around excellent lawyer, tried to withdraw Mr. Allen’s plea to no avail.
            Whether Mr. Allen misapprehended the possible sentence?
            Whether Lariam Toxicity defense could necessitate withdrawl of Mr. Allen’s plea?
            Whether the trial court erred in ignoring SVP evaluation and found Mr. Allen to be a sexually violent predator?
Held: No and No and No.
Misapprehension: The Court of Appeals essentially bought the plea lawyer’s version of events over Mr. Allen’s. (On its face, I cannot imagine, after 15 ½ years of practicing criminal law, a client knowingly and intelligently pleading to this deal. Clients who face a ton of time become more and more strident as the final date comes closer to avoid the inevitable sentence.)
New evidence or Possible Defense as a reason to withdraw plea: The CofA held that Lariam Toxicity did not qualify as ‘new evidence’ and did not justify a withdrawl of Mr. Allen’s plea. The CofA skirted the whole new evidence issue and made a series of conclusory statements to justify the holding, “As the [trial] court noted, defendant's signed plea agreement indicated that he forfeited the right to raise defenses by pleading guilty. Because the record indicates that defendant was advised of the guilty plea's consequences, we conclude that he entered his plea knowingly and voluntarily.”
Ignoring the SVP determination: Incredibly, despite the stranger-hours-long rape, the evaluator found Mr. Allen did not qualify as a ‘sexually violent predator’. However, the trial court disagreed, and found Mr. Allen to be a sexually violent predator. The CofA affirmed the trial court, reasoning that the SVP evaluation is a guide not a mandate for judges. Thus, judge can free disregard the SVP findings if the judge did not abuse his/her discretion. Good to use when some ignorant judge claims that he/she/it must follow the SVP findings.

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