In Craig v. People of the State of Colorado, Case No. 98-SA-159 (October 4, 1999), the Colorado Supreme Court issued a significant decision which may allow more Defendants to challenge previous felony convictions. The decision relates to Defendants who have pled guilty to felonies and were not properly advised regarding mandatory parole.

First, the Court held that if a defendant is explicitly promised a sentence related to mandatory parole which is contrary to the criminal statutes and such a promise is a material part of a plea agreement, the defendant’s plea is invalid.

Second, the Supreme Court held that a plea that is entered without an adequate advisement of the direct consequences of mandatory parole is constitutionally infirm and subject to withdrawal unless the infirmity is harmless or can be rendered harmless by a modified legal sentence. The courts have long recognized that when a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, that promise must be fulfilled. The Colorado Supreme Court noted that it had recently reaffirmed this principle in St. James v. People, 948 P.2d 1028, 1032 (Colo. 1997). If a breach is established, the appropriate remedy is generally to give effect to the defendant’s legitimate expectations arising out of the express promises made by the government.

The Supreme Court went on to note that because mandatory parole is a statutorily prescribed sentence component, a plea agreement purporting to alter this requirement represents a special case. The court noted that it is important to recognize that the provisions governing plea dispositions provide the prosecutor with limited authority to "make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere. (See Colo. Crim. Rule Pro. 11(f)(2)(I).) In this context, the concession specified in any plea agreement must be understood as speaking only to the discretionary aspects of sentencing where such recommendations actually could be entertained by the trial court. Because neither a prosecution or the trial court has the authority to modify or waive the mandatory parole period, this topic is not a permissible subject of plea negotiations. The court went on to hold that when the parties attempt to fashion a sentence that is itself contrary to law, the resulting illegality is not subject to specific enforcement.

The court went on to hold that a proper advisement with respect to the mandatory parole consequences of pleading guilty is important because the mandatory parole provisions require parole in addition to the imprisonment component of a sentence. Moreover, a violation of the terms of parole can convert the parole term into an additional period of imprisonment of up to the remaining length of the parole period. Given these characteristics, the court held that a proper advisement on this topic must indicate that the parole term occurs after, in addition to, or distinct from any period of imprisonment. A proper advisement must also include the length of mandatory parole period, although the court indicated that the failure to do so might constitute harmless error. The court noted for example that the failure to advise of the "correct and complete penalty" might be rendered harmless by imposing a modified sentence that removes the burden of the undisclosed consequence. In the mandatory parole context then, withdrawal is not required if the defendant can be given an alternative sentence in which the number of years of imprisonment is reduced by such an extent as to remove the extra onus of the undisclosed or improperly described parole term. Withdrawal of the plea is the only remedy where elimination of the burden of the undisclosed consequence would require elimination of all or part of the required mandatory parole period or would reduce the number of years of imprisonment below the presumptive range specified in the statute.

This decision is likely to result in an increased number of successful challenges to prior convictions.

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