Colorado § 16-7-301 - Propriety of plea discussions and plea agreements.

§ 16-7-301. Propriety of plea discussions and plea agreements.

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarceration or because the defendant refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one or more of the following, depending upon the circumstances of the individual case:

(a) 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 (no contest);

(b) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere (no contest) to another offense reasonably related to the defendant's conduct;

(c) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere (no contest);

(d) To consent to diversion, as provided in section 18-1.3-101, C.R.S.;

(e) To consent to deferred sentencing, as provided in section 18-1.3-102, C.R.S.;

(f) To consent to an assessment for suitability for participation in restorative justice practices, including victim-offender conferences.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) Repealed.

(5) Any plea agreement in a case involving a plea to a violation of article 18 of title 18, C.R.S., may not require a waiver by the defendant of the right to petition to have the defendant's criminal conviction records sealed pursuant to part 3 of article 72 of title 24, C.R.S.

Source: L. 72: R&RE, p. 223, § 1. C.R.S. 1963: § 39-7-301. L. 75: IP(2) amended and (2)(d) and (2)(e) added, p. 609, § 1, effective March 12. L. 92: (1) amended and (4) added, p. 465, § 2, effective July 1. L. 93: (4) amended, p. 1285, § 2, effective July 1. L. 2002: (2)(d) and (2)(e) amended, p. 1491, § 135, effective October 1. L. 2013: (2)(d) amended, (HB 13-1156), ch. 336, p. 1957, § 4, effective August 7; (5) added, (SB 13-250), ch. 333, p. 1925, § 32, effective October 1; (1) amended and (4) repealed, (HB 13-1210), ch. 306, p. 1622, § 1, effective January 1, 2014. L. 2017: (2)(f) added, (HB 17-1039), ch. 58, p. 183, § 3, effective August 9.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (2)(d) and (2)(e), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, "The Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel", see 89 Denv. U.L. Rev. 327 (2012).

This section does not have to be read in conjunction with the due process clause of the United States constitution so as to guarantee that each confederate in crime would be given a comparable or similar sentence. People v. Bruebaker, 189 Colo. 219, 539 P.2d 1277 (1975).

Due process requires that if defendant relies to his detriment on government's promise in plea agreement, specific performance of agreement is appropriate. People v. Macrander, 756 P.2d 356 (Colo. 1988).

Subsection (2) relates to authority granted to district attorney in plea agreements, not to defendants who are able to waive inalienable constitutional rights without any statutory authorization. This includes a waiver of due process rights. People v. Gurule, 748 P.2d 1329 (Colo. App. 1987).

Generally, a guilty plea must be voluntarily, knowingly and intelligently made in order to be valid. To be voluntary, a guilty plea cannot be induced by misrepresentation, including unfulfilled or unfulfillable promises. Chae v. People, 780 P.2d 481 (Colo. 1989).

A plea induced by a promised sentence that is statutorily unavailable is invalid. Chae v. People, 780 P.2d 481 (Colo. 1989).

When a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence. Chae v. People, 780 P.2d 481 (Colo. 1989).

Where the sentence recommendation provided for an illegal suspended sentence, the basis for the guilty plea amounted to an invalid, unfulfillable promise. Therefore, the guilty plea must be vacated because the illegal sentence recommendation in the plea agreement invalidated the guilty plea. Chae v. People, 780 P.2d 481 (Colo. 1989).

Withdrawal of guilty plea proper where plea results in illegal suspension of mandatory sentence. People v. Hummel, 131 P.3d 1204 (Colo. App. 2006).

However, where there is a valid plea agreement but an illegal sentence imposed to enforce the valid and legal plea, the proper remedy is to modify the sentence to effect the intent of the plea agreement. People v. Antonio-Antimo, 29 P.3d 298 (Colo. 2000).

The trial court was correct in reinstating defendant's plea of guilty because the plea bargain at issue itself was legal, only one provision of the sentence was illegal, and because that illegality had been rectified. People v. Fennell, 32 P.3d 1092 (Colo. App. 2000).

Since an illegal sentencing provision prevented the defendant from being bound by his original plea agreement, the district attorney also is not bound by the agreement. Chae v. People, 780 P.2d 481 (Colo. 1989).

Defendant received no promise constituting an inappropriate inducement to plead guilty from either the prosecutor or trial court in that nothing in the plea agreement could be interpreted to eliminate or alter the application of the mandatory parole provisions of § 18-1-105. Benavidez v. People, 986 P.2d 943 (Colo. 1999).

Defendant was sufficiently well advised of the mandatory parole requirement so as to enter a plea with sufficient knowledge of the consequences. Benavidez v. People, 986 P.2d 943 (Colo. 1999); People v. Jones, 997 P.2d 1286 (Colo. App. 1999).

The record as a whole, including the advisement given at the time a defendant pleaded guilty to the charge, must be considered in determining whether the defendant was adequately advised concerning mandatory parole at the time he pleaded guilty to a complaint alleging a probation violation. People v. Wright, 53 P.3d 730 (Colo. App. 2002).

Identical concessions not required for similarly situated defendants. This section and Crim. P. 11(f)(3) do not require that similarly situated defendants be offered identical concessions. People v. Lewis, 671 P.2d 985 (Colo. App. 1983).

This section relates to plea agreements, rather than to sentencing procedures. People v. Bruebaker, 189 Colo. 219, 539 P.2d 1277 (1975).

Agreements to dismiss pending prosecutions, distinguished from plea bargains by the absence of any element of admission of guilt, often have been deemed contrary to public policy and unenforceable. People v. Marquez, 644 P.2d 59 (Colo. App. 1981).

If a plea of guilty results from plea bargaining and the bargain is not honored, the judgment must be vacated. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973).

Defendant not entitled to reduction in sentence. Defendant entered into a plea agreement for a reduced sentence if a district attorney's polygraphist determined that the defendant was telling the truth. Defendant then refused to disclose the results of earlier polygraph tests administered by a defense polygraphist. DA's polygraphist testified that it was necessary for him to review the results of those tests before offering an opinion as to the truthfulness of the defendant's story. The court could not order the defendant to turnover the results of the earlier polygraph tests, but, if he did not do so, the court was not obligated to reduce the sentence. People v. Johnson, 999 P.2d 825 (Colo. 2000).

Conditional guilty pleas are not authorized in Colorado by statute or court rule. People v. Neuhaus, 240 P.3d 391 (Colo. App. 2009), aff'd, 2012 CO 65, 289 P.3d 19; People v. Hoffman, 2012 CO 66, 289 P.3d 24; Escobedo v. People, 2012 CO 67, 289 P.3d 25.

A trial court lacks the authority to order mediation in a criminal case. Both parties may consent to mediation, but mediation may not be made mandatory by the court. People v. Justice, 2023 CO 9, 524 P.3d 1178.

Applied in People v. Ray, 192 Colo. 139, 560 P.2d 74 (1977); People v. Dawson, 89 P.3d 447 (Colo. App. 2003).