March 27, 2012
Colorado Court of Appeals 3-15-12 People v. Finney
People v. Finney Deferred – Revocation
Facts: Mr. Finney pled to sexual assault, a class-four felony, and a 3˚ assault, a class one misdemeanor. The trial court deferred the sexual assault conviction, and imposed concurrent probation on the third degree assault conviction. At the revocation hearing, Mr. Finney’s attorney waived his right to be advised of the potential penalties.
Issue: Whether the Due Process Clauses require a court to advise of the possible penalties not withstanding counsel’s waiver?
Reasoning: The Court of Appeals went through the presentence report, the plea paperwork, and all the failed plea colloquies where the presiding judge correctly advised Mr. Finney of the potential prison sentence, and found that Mr. Finney received an adequate advisement of the potential prison sentence. Further, the Court found Mr. Finney’s attorney waived advisement, and such an advisement is not required to revoke someone’s deferred sentence. The Court wrote, “Thus, looking to the record as a whole, we conclude that defendant's admission that he violated the terms of the deferred judgment agreement was valid and did not offend the Due Process Clause even though he was not readvised of the potential penalties.” Opinion by Judge Bernard, Russel, J., concurs; Hawthorne, J., dissent