People v. Heinz, 589 P.2d 931 (Colo. 1979). · Go Syfert
People v. Heinz, 589 P.2d 931 (Colo. 1979). Cases Citing This Book View Copy Cite
G Cite
71 citation events (8 in the last 25 years) across 4 distinct courts.
Strongest positive: People v. Shreck (coloctapp, 2004-11-10)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
cited Cited as authority (rule) People v. Shreck
Colo. Ct. App. · 2004 · confidence medium
People v. Birdsong, 958 P.2d 1124, 1128 (Colo.1998); People v. Heinz, 197 Colo. 102, 106 , 589 P.2d 931, 933-34 (1979).
discussed Cited as authority (rule) State v. Arguello (2×)
S.D. · 2002 · confidence medium
In addressing a similar issue another court has recognized that “the trial judge who accepted the plea was not required to advise defendant of his continuing duty to act as a law-abiding citizen.” People v. Heinz, 197 Colo. 102 , 589 P.2d 931, 934 (1979).
discussed Cited as authority (rule) People v. Marez
Colo. · 2002 · confidence medium
It is also well-settled that the consequences of subsequent acts by a defendant, even if those consequences are enhanced by *1194 an earlier guilty plea, are collateral rather than direct consequences of the earlier plea and therefore are not consequences of which the defendant must have been advised upon entering the earlier plea See People v. Heinz, 197 Colo. 102, 105-06 , 589 P.2d 931, 933 (1979).
discussed Cited as authority (rule) People v. Garcia (2×)
Colo. · 1991 · confidence medium
A plea is knowing and voluntary, and thus devoid of constitutional infirmity, when the defendant is fully aware of the direct consequences of the plea; that is, those having a "`definite, immediate, and *946 largely automatic effect on the range of [a defendant's] punishment.'" Id. (quoting People v. Heinz, 197 Colo. 102, 106 , 589 P.2d 931, 933 (1979) (quoting Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir. 1973))).
discussed Cited as authority (rule) People v. Pozo (2×)
Colo. · 1987 · confidence medium
A plea is considered knowing and voluntary when the defendant has been advised of all consequences which have a “definite, immediate, and largely automatic effect on the range of [a defendant’s] punishment.” People v. Heinz, 197 Colo. 102, 106 , 589 P.2d 931, 933 (1979), quoting Cuthrell v. Director, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S. 1005 , 94 S.Ct. 362 , 38 L.Ed.2d 241 (1973).
cited Cited as authority (rule) People v. Adrian
Colo. · 1985 · confidence medium
Boykin, 395 U.S. at 244 , 89 S.Ct. at 1712 ; People v. Heinz, 197 Colo. 102, 105 , 589 P.2d 931, 933 (1979).
discussed Cited as authority (rule) People v. Coyle
Colo. · 1982 · confidence medium
We held that collateral attack is appropriate in two instances: when the order is void because the tribunal issuing it lacked personal or subject matter jurisdiction, and when the order is based on “a conviction obtained in violation of [his] ... constitutional rights.” Id., 618 P.2d at 1112 (quoting People v. Heinz, 197 Colo. 102, 105 , 589 P.2d 931, 933 (1979)).
discussed Cited as authority (rule) People v. McKnight
Colo. · 1980 · confidence medium
We note also that neither the American Law Institute Model Code of Pre-Arraignment Procedure, see § 350.4 and comments thereto (1975), the American Bar Association Standards Relating to Pleas of Guilty, 14-1.4 (Approved Draft, 1978), nor the American Bar Association Standards Relating to the Function of the Trial Judge, 6-4.2 (Approved Draft, 1978), require that a defendant be informed of the possible future application of habitual offender laws.” People v. Heinz, 197 Colo. 102 ,_, 589 P.2d 931, 934 (1979).
cited Cited as authority (rule) People v. Able
Colo. · 1980 · confidence medium
People v. Heinz, 197 Colo. 102 ,_, 589 P.2d 931, 933 (1979).
examined Cited "see" People v. Birdsong (4×)
Colo. · 1998 · signal: see · confidence high
See People v. Heinz, 197 Colo. 102, 106 , 589 P.2d 931, 933 (1979), and Pozo, 746 P.2d at 526 .
discussed Cited "see" People v. Martinez (2×)
Colo. Ct. App. · 1982 · signal: see · confidence high
See generally People v. Heinz, 197 Colo. 102 , 589 P.2d 931 (1979).
cited Cited "see, e.g." Anderson v. Colorado Department of Revenue
Colo. Ct. App. · 1980 · signal: see also · confidence low
See Grand Junction v. Kannah Creek Water Users Ass’n, 192 Colo. 284 , 557 P.2d 1173 (1976); see also People v. Heinz, Colo., 589 P.2d 931 (1979).
Retrieving the full opinion text from the archive…
The People of the State of Colorado
v.
Danny Brent Heinz
28264.
Supreme Court of Colorado.
Jan 29, 1979.
589 P.2d 931
1979 Colo. LEXIS 640
Nolan L. Brown, District Attorney, Robert D. Kelly, Deputy, for plaintiff-appellant., Norton, Frickey and Associates, Dan W. Corson, for defendantappellee.
Erickson.
Cited by 35 opinions  |  Published
[*104] MR. JUSTICE ERICKSON

delivered the opinion of the Court.

This interlocutory appeal was taken to obtain review of a district court order which dismissed a charge against the defendant, Danny Brent Heinz, of violating section 42-2-206, C.R.S. 1973 (driving after revocation). We reverse the ruling of the district court and remand with directions to reinstate the charges against the defendant for violating section 42-2-206, C.R.S. 1973.

An automobile driven by the defendant was stopped by a police officer for speeding, and the defendant was charged with driving under the influence of intoxicating liquors (section 42-4-1202, C.R.S. 1973 (1976 Supp.)). At the time the charge was made, the defendant had accumulated three prior convictions within a period of seven years for three separate alcohol-related traffic offenses.

The record of the defendant for alcohol-related traffic offenses caused him to be charged in the district court with driving after revocation (section 42-2-206, C.R.S. 1973), as well as with driving under the influence of intoxicating liquors (section 42-4-1202, C.R.S. 1973 (1976 Supp.)). Driving after revocation is a class 5 felony (section 42-2-206, C.R.S. 1973).

The defendant, as a result of his three prior alcohol-related convictions, obtained an administrative hearing before the Motor Vehicle Department, pursuant to section 42-2-122(1)0), C.R.S. 1973, and was found to be an habitual offender (section 42-2-206, C.R.S. 1973). The defendant, after a full hearing, was barred from operating a motor vehicle for a period of five years. The period of revocation was until December 10, 1981, and at the time the hearing was held, the defendant was advised that he could not drive for five years and that if he did, he would subject himself to felony prosecution. At the time defendant was charged with drunk driving, his period of revocation was still in effect.

Following the determination by the Motor Vehicle Department, responsibility under section 42-2-206, C.R.S. 1973, attaches when the condition subsequent occurs, to-wit: the operation of a motor vehicle during the five-year period of suspension.

The issues before us center on the motion to dismiss, which the district court granted, directed at the habitual traffic offender count. The grounds for dismissal were that the defendant’s last alcohol-related traffic offense had a defective providency hearing. The defendant contended that when he pled guilty to the third alcohol-related offense, the providency hearing failed to include the warning that his guilty plea could cause future criminal liability and prosecution as an habitual traffic offender. The extent of the Crim. P. 11 providency hearing was in issue in the district court, and evidence was taken to establish what had occurred at the[*105] providency hearing, because no transcript was available. In our view, no warning of the type urged by the defendant was necessary, and for that reason, the trial judge’s finding that no warning was given has no significance. The district court’s conclusion that the defendant “was not fully advised of the consequences of his plea when he pled guilty to the third alcohol-related offense” was used as a foundation for the court’s ruling that the third conviction was constitutionally infirm and could not be used for the purpose of subjecting the defendant to enhanced punishment. The third conviction was suppressed by the district court and was declared to be unavailable for use as a predicate for conviction of the charge of driving after judgment prohibited (section 42-2-206, C.R.S. 1973).

Crim. P. 11 provides, in pertinent part:

“(b) Pleas of Guilty and Nolo Contendere. The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:
“(4) That he understands the possible penalty or penalties . . . .”

In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), the United States Supreme Court stated:

“Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.”

See also Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Henderson v. Morgan, 426 U.S. 637, 650, 96 S.Ct. 2253, 49 L.Ed.2d 108 (White, J., concurring) (1976); Erickson, The Finality of a Plea of Guilty, 48 Notre Dame Law. 835 (1973).

It is well established that a conviction obtained in violation of a defendant’s constitutional rights cannot be used in a later proceeding to support the imposition of statutory liabilities. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971); People v. Gonzales, 38 Colo. App. 522, 565 P.2d 945 (1977). A conviction based on a plea accepted in violation of Crim. P. 11 is also infirm for that purpose. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). However, we cannot accept the conclusion of the district court that the guilty plea which served as the basis for defendant’s third prior conviction was obtained in violation of either Crim. P. 11 or the United States Constitution.

The defendant is correct in his assertion that his third conviction made him subject to enhanced punishment under section 42-2-206. However, that fact does not mean that his attainment of habitual traffic offender status was either a “consequence,” as that word has been interpreted in numerous cases, or a “penalty,” within the meaning of Crim. P. 11. Boykin v. Alabama, supra; Henderson v. Morgan, supra; [*106] Kercheval v. United States, supra. The judge who accepts a plea of guilty is required to inform the defendant only of those consequences which have “a definite, immediate and largely automatic effect on the range of [a defendant’s] punishment.” Cuthrell v. Director, 475 F.2d 1364 (4th Cir. 1973); see also Bell v. North Carolina, 576 F.2d 564 (4th Cir. 1978).

At the time defendant entered a plea of guilty which brought about his third conviction, the enhanced punishment with which he is now faced was contingent upon his future conduct. The trial judge who accepted that plea was not required to advise defendant of his continuing duty to act as a law-abiding citizen. Russell v. District Court, 191 Colo. 298, 552 P.2d 297 (1976). We note also that neither the American Law Institute Model Code of Pre-Arraignment Procedure, see § 350.4 and comments thereto (1975), the American Bar Association Standards Relating to Pleas of Guilty, 14-1.4 (Approved Draft, 1978), nor the American Bar Association Standards Relating to The Function of The Trial Judge, 6-4.2 (Approved Draft, 1978), require that a defendant be informed of the possible future application of habitual offender laws.

Accordingly, the order of the district court dismissing the driving while judgment prohibited charge is reversed, and the case is remanded with directions to reinstate the charge of driving after judgment prohibited.